A/HRC/43/35 detainees in such contexts have reduced access to medical and educational services, for example, and to effective protections and remedies to which they are entitled, including through the judicial system. 18. Furthermore, while detention in peacetime is normally linked to criminal offences, in armed conflict it is lawful, under certain conditions (see paras. 20–23 below), for belligerent parties to detain individuals in order to prevent a security threat from materializing 60 or to hold them as prisoners of war solely because of their status as combatants, irrespective of their actual conduct.61 Additionally, armed conflicts frequently involve transfers of detainees between co-belligerents, giving rise to further concerns that human rights may be violated in the transition from one detaining authority to another or that receiving authorities may afford substantially lower levels of human rights protection (see para. 28). B. Lack of a legal basis or defined grounds and procedures for extraterritorial detention 19. While detention that is authorized, and that is consistent with international humanitarian law, is in principle not arbitrary,62 extraterritorial detention in armed conflict when carried out without a legal basis becomes arbitrary and violates the right to personal liberty. In international armed conflicts, waged between States and usually involving extraterritorial operations by at least one party to the conflict, international humanitarian law authorizes status-based extraterritorial internment of combatants as prisoners of war 63 and permits the criminal detention 64 and internment of protected persons 65 in occupied territory when deemed necessary for imperative security reasons. 66 By contrast, in noninternational armed conflicts, waged between a State and one or more organized non-State armed groups or between non-State armed groups, international humanitarian law does not explicitly establish a legal basis for detention. While, according to the International Committee of the Red Cross, parties to a non-international armed conflict have an inherent power to intern persons on the grounds of imperative reasons of security,67 this position is not unanimous.68 20. In any event, the prohibition on arbitrary deprivation of liberty requires that, in all circumstances, detention be implemented pursuant to substantive grounds and appropriate procedures established by law.69 With respect to international armed conflicts, international humanitarian law specifies permitted grounds for detention and procedures to ensure that those grounds are met. 70 However, as international humanitarian law does not itself establish specific grounds and procedures for extraterritorial internment in non-international armed conflicts,71 such detention would be arbitrary unless relevant grounds and procedures, consistent with international law, are specified in an applicable binding instrument, such as the applicable domestic law of the State in whose territory the detention takes place or of the detaining State, or a specific agreement between the host State and the detaining State 60 61 62 63 64 65 66 67 68 69 70 71 8 Such non-criminal detention for security reasons is sometimes also referred to as “administrative detention” or “security detention”. Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention), art. 4. Human Rights Committee, general comment No. 35, para. 64. Third Geneva Convention, art. 21 (1). Geneva Convention relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), arts. 64 and 68. Protected persons are those protected by the Fourth Geneva Convention as defined in article 4 thereto. Fourth Geneva Convention, arts. 76 (1) and 78 (1). ICRC, Commentary of 2016 on the First Geneva Convention, para. 720. Court of Appeal of the Royal Courts of Justice, Serdar Mohammed and others v. Secretary of State for Defence, Case No. [2015] EWCA (Civ) 843, 30 July 2015; Supreme Court, Abd Ali Hameed AlWaheed v. Ministry of Defence, Case No. [2017] UKSC 2, 17 January 2017. International Covenant on Civil and Political Rights, art. 9; Human Rights Committee, general comment No. 35, para. 11. Third Geneva Convention, arts. 5 (2), 21 (1) and 118; Fourth Geneva Convention, arts. 42–43, 78, 132 (1) and 133 (1); Additional Protocol I, art. 75 (3). www.icrc.org/en/document/internment-armed-conflict-basic-rules-and-challenges.