Practical challenges of implementing the complementarity between international humanitarian and human rights law - demonstrated by the procedural regulation of internment in non-international armed conflict.

• Author: Olson, Laura M.

This article--using the procedural regulation of internment as an example--outlines some of the practical challenges in assessing the interrelationship between International Humanitarian Law (IHL) and International Human Rights Law (IHRL), in order to draw attention to certain risks so they may be avoided, as well as to stimulate proposals to address these challenges. The international humanitarian treaty law procedurally regulating internment is described briefly. This is followed by an exploration of the relationship between IHL and IHRL. Differences between IHL and IHRL are presented, and, by focusing on the procedural regulation of internment, the way these differences give rise to complications, when attempting to harmonize the two sets of legal norms, is demonstrated. In conclusion, an initiative is proposed that may assist the practitioner in addressing the complementarity between IHL and IHRL in concrete situations, thereby helping to ensure the fullest protection of the law to persons interned.

INTRODUCTION

Internment--the deprivation of liberty of a person without criminal charge as a preventative security measure--frequently occurs during armed conflict. Such deprivation of a person's liberty is one of the most extreme measures that can be taken and hence requires adherence to safeguards. Respecting and enforcing these safeguards necessitate understanding not only which rules apply to the situation but also the content of those rules. No international humanitarian law (IHL) treaty rules applicable in non-international armed conflicts procedurally regulate internment. International human rights law (IHRL) may provide regulation by complementing IHL. However, without clarity on the relationship between IHL and IHRL, it is impossible to understand and implement the applicable law so as to provide the fullest protection of the law to persons interned, particularly in relation to non-international armed conflict.

Increased attention to internment--largely caused by the controversy over the Guantanamo Bay Detention Facility--has initiated calls for new international rules--by some to respond to security concerns caused by "modern threats" and by others to ensure greater protection for persons affected by armed conflict or to address the familiar challenge of determining whether a situation reaches the threshold of armed conflict for application of IHL. (1) This has been accompanied by interest to renew the decades-long discussion on the establishment of minimum common standards applicable at all times. (2) Yet, generally formulated minimum standards will require precise content so as to avoid varying interpretations of the standard. Additionally, prior to engaging in the creation of new treaties, it is important to have as accurate an understanding as possible of the present law, otherwise the outcome could result in the establishment of rules that are lower than existing standards. Such initiatives make the need for clarity on the relationship between IHL and IHRL with regard to internment regulation particularly urgent.

This article--using the procedural regulation of internment as an example--outlines some of the practical challenges in assessing the interrelationship between IHL and IHRL in order to draw attention to certain risks so they may be avoided, as well as to stimulate proposals to address these challenges. The first section of this article provides background by briefly describing the international humanitarian treaty law procedurally regulating internment. This is followed by a section discussing the relationship between IHL and IHRL. The third section presents some of the differences between IHL and IHRL and, by focusing on the procedural regulation of internment, demonstrates how these differences can give rise to complications when attempting to harmonize the two sets of legal norms. Finally, the last section presents an initiative that, if accomplished, may assist the practitioner in addressing the complementarity between IHL and IHRL in concrete situations.

PROCEDURAL REGULATION OF INTERNMENT UNDER INTERNATIONAL HUMANITARIAN LAW

This section briefly outlines existing IHL treaty rules (3) regulating internment. The purpose in doing so is to provide both a general understanding of the extent of IHL protections and a starting point for the discussion on the IHL-IHRL relationship that follows. Here only the procedural protections IHL provides will be highlighted, although IHL also regulates the treatment and conditions of persons interned during armed conflict. The focus of this article is non-international armed conflict; nevertheless, rules applicable in international armed conflicts will be mentioned. This is done for two reasons: first, to demonstrate the paucity of procedural rules applicable in non-international armed conflict as compared with international armed conflict and, second, because of that paucity, to gain insight from the rules of international armed conflict to evaluate what may best work to address procedural matters in non-international armed conflict.

IHL provides grounds for possible internment in international armed conflict under certain conditions for specific categories of protected persons. The First and Second Geneva Conventions regulate the retention of medical and religious personnel "only in so far as the state of health, the spiritual needs and the number of prisoners of war require." (4) The Third Geneva Convention stipulates that "[t]he Detaining Power may subject prisoners of war to internment." (5) Concerning civilians, the Fourth Geneva Convention provides that--as to aliens in the territory of a party to the conflict--"[t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary." (6) In an occupied territory, "[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most subject them to assigned residence or to internment." (7)

In contrast, IHL treaty law applicable to non-international armed conflict provides no specific grounds for internment. Yet, IHL treaty law contemplates that internment occurs in non-international armed conflict, as demonstrated by the references to internment found in Articles 5 and 6 of the Second Additional Protocol. (8) Article 3 common to the Four Geneva Conventions (Common Article 3) makes no reference to internment.

As IHL applicable to international armed conflict provides guidance on when internment may occur or begin, it should, thus, also stipulate when the captivity must end. Retention of medical and religious personnel must cease if prisoners of war are not in need. (9) According to the Third Geneva Convention, repatriation of prisoners of war takes place due to medical reasons during the conflict, (10) and release and repatriation for all, without delay, must occur after the cessation of active hostilities. (11) Unlike prisoners of war (with no medical reason requiring release), civilian internees may not necessarily be interned until the end of conflict. The Fourth Geneva Convention provides that a civilian must be released "as soon as the reasons which necessitated his internment no longer exist;" (12) this may be during the conflict. If, however, civilians remain interned for the duration of the conflict, "[i]nternment shall cease as soon as possible after the close of hostilities." (13)

Of the above-mentioned grounds for internment, generally only the basis for interning a civilian requires an assessment, (14) as civilians--unlike combatants who are captured and become prisoners of war--may only be interned if and for the duration that they pose a security threat. The Fourth Geneva Convention provides internment review procedures applicable to civilian internees, giving some detail regarding the type of body and timing of review. For aliens in the territory of a party to the conflict, the Fourth Geneva Convention states:

Any protected person who has been interned ... shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board.... If the internment ... is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favorable amendment of the initial decision, if circumstances permat. (15) For those interned in occupied territory, the Fourth Geneva Convention similarly provides that:

Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power. (16) And, the First Additional Protocol indicates certain safeguards for the individual in the process:

Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offenses, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist. (17) The Second Additional Protocol applicable in non-international armed conflict briefly mentions internment, (18) but provides no guidance regarding procedures either to assess the decision to intern or to terminate captivity. Again, Common Article 3 does not speak to the issue.

While IHL treaties applicable to international armed conflict provide greater...