Red Cross Conference Acknowledges "Gaps" in International Humanitarian Law Governing Detention

The 31^st Quadrennial Conference of the International Red Cross and Red Crescent closed on Thursday in Geneva with the adoption of a resolution inviting the International Committee of the Red Cross (ICRC) to study whether existing international humanitarian law is adequate, or needs to be strengthened and clarified, as applied to persons detained in armed conflicts.  The Quadrennial Conference comprises the 194 States Party to the Geneva Conventions and all the national humanitarian aid societies that are part of the Red Cross and Red Crescent Movement.  The resolution, and the ICRC reports that preceded them, constitute a candid and remarkable acknowledgment that -- contrary to the adamant assertions of some observers -- international law in general, and the Geneva Conventions in particular, do not in fact provide clear guidance to states engaged in detention activities and instead have some legal gaps. Although the next steps are not clear, it appears likely that the ICRC will convene some kind of working group, in coordination with states, to examine the gaps and how to fill them.  In an interview on the Conference website, an ICRC expert says “One possibility would be to negotiate a new treaty on detention issues. But other possibilities would also have to be considered, because some States may not see the need to adopt new treaty law.  One of these, for example, would be to use more "soft-law" instruments – i.e. detailed rules that provide guidance without being legally binding. Or we could state more precisely what constitutes good practice.” In preparation for the Conference, the ICRC prepared two important background reports.  The first is entitled “Report on International Humanitarian Law and Challenges of Contemporary Armed Conflicts.”  I have only had a chance to skim this report, but it appears to contain useful commentary by the ICRC on numerous hot topics in armed conflict, including the interplay between human rights law and IHL, extraterritorial application of human rights law, private security contractors, the law applicable to multinational forces, terrorism, and cyber warfare.  States, including the United States, will likely agree with some parts of the ICRC analysis and disagree with other parts, but there is much grist here for the Lawfare reader. The second report, which I have read in more detail, is entitled “Strengthening Legal Protection for Victims of Armed Conflicts.” It is based on a two-year internal study conducted by the ICRC examining whether the Geneva Conventions remain relevant to contemporary armed conflicts.  The report concludes that, although the Geneva Conventions remain important, they do not address, or do not sufficiently address, many questions relating to detention, especially in non-international armed conflicts between states and non-state groups.  The report identifies particular “gaps and weaknesses” in the law and a “dearth of legal norms” regarding conditions of detention; procedures governing security internment; and transfers of detainees.  Here are a few notable quotations from the report:

• While international humanitarian law contains detailed rules on conditions of detention in international armed conflicts, this is not the case in conflicts not of an international character, especially those governed by Article 3 common to the Geneva Conventions, the minimum norm applicable in all non-international armed conflicts. There is a need to elaborate specific provisions on the various elements that make up a detention regime with a view to ensuring that detaining parties, whether State or non-State, ensure that those who are in their power are treated humanely.

•  The relevant rules of customary law are by necessity formulated in general terms, and thus do not provide sufficient guidance to detaining authorities on how an adequate detention regime may be created and operated.

• In contrast to the Fourth Geneva Convention rules governing international armed conflicts, there are no international humanitarian law treaty provisions on procedural safeguards for internment in non-international armed conflicts.

• Customary international humanitarian law prohibits arbitrary deprivation of liberty, but does not provide criteria for determining what is “arbitrary”.  Article 3 common to the Geneva Conventions contains no provisions regulating internment, apart from the requirement of humane treatment. Internment is, however, clearly a measure that can be taken in noninternational armed conflicts, as evidenced by the language of Additional Protocol II, which mentions internment in Articles 5 and 6 respectively, but likewise does not give details on how it is to be organized.

• Given the evident challenges faced by persons who might have reason to fear for their safety if they are transferred to another State, it is absolutely necessary to provide legal guidance to detaining authorities in such cases.  The lack of legal provisions in the humanitarian law governing non-international armed conflicts suggests that it would be highly advisable to provide for a set of workable substantive and procedural rules that would both guide the actions of States and non-governmental armed groups and protect the rights of affected persons.

• Some of the gaps in the existing applicable law require the preparation of new legal solutions.

Earlier this year, my former State Department colleague Vijay Padmanabhan (now at Vanderbilt Law School) and I identified many of these same gaps (and suggested ways to address them) in an article we wrote in the American Journal of International Law, entitled “Detention Operations in Contemporary Conflicts:  Four Challenges for the Geneva Conventions and Other Existing Law.”  In our paper, we stated: “During the time that we served in government, we believe the United States erred by straining to take advantage of gaps in international law in order to avoid applying important protections for detainees as elements of its post-9/11 detention policy.  Nevertheless, the failure by other observers to acknowledge the limitations of existing law hampers efforts to develop new law. Pretending that clear detention rules already exist to guide state practice does not serve the cause of international humanitarian or human rights law.” Vijay and I concluded our article with this statement: “The continued relevance of international law in governing contemporary conflicts will require that states address, rather than ignore or avoid, the stress that conflicts with nonstate actors exert on existing legal rules. Because of the pressing need to fill the gaps in the existing law of detention, we hope that the relevant actors will acknowledge the limitations of existing law and take effective steps to address them.”  The resolution adopted by all the States Party to the Geneva Conventions at the Quadrennial Conference last week represents an important acknowledgement by the international community of the limitations of existing international law relating to detention and represents a good first step towards addressing them.