2016 Joint Series on International Law and Armed Conflict: Lawrence Hill-Cawthorne on Procedural Guarantees in Detention

In the fifth installment of our Transatlantic Dialogue Series, Lawrence Hill-Cawthorne discusses the procedural guarantees in detention. Mr. Hill-Cawthorne is a Lecturer in Law and Programme Director of the LLMs in International Law and Human Rights at the University of Reading. He has a DPhil in International Law from the University of Oxford and his research interests lie in international humanitarian law, human rights law, international criminal law, and relationship of these different areas to general international law. The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.

Here's a taste: 

Detention in International Armed Conflict

The Hassan judgment offered a view as to the relationship between the European Convention on Human Rights (ECHR) and IHL, reading into Article 5 ECHR the grounds and procedures governing internment under the latter regime. Though seemingly simple, the IHL rules on internment, and the European Court of Human Rights’ (ECtHR) reasoning in Hassan, leave a number of questions unanswered. The first set of questions to which I wish to draw attention here relate to the review procedures stipulated under the Fourth Geneva Convention (GCIV) for civilian internment. Both Articles 43 (regarding civilians interned in enemy territory) and 78 (regarding civilians interned in occupied territory) require that initial and periodic review procedures be established to hear appeals against internment. Article 43 requires an ‘appropriate court or administrative board’, whilst Article 78 requires a ‘regular procedure’ with a ‘right of appeal’. However, the treaty text itself gives no more further guidance on this, including with respect to such fundamental matters as the make-up of review bodies, the actual procedures they should follow, and the right of an internee to appear in person and make representations before the review body.

These issues have been elaborated a little in practice. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) has held that these bodies, if they are to serve their function, must have the power to order the release of the detainee should their detention be deemed unnecessary for security (Prosecutor v Zejnil Delalić et al (Appeals Judgment) ICTY-96-21-A (20 February 2001) para 329). Moreover, the International Committee of the Red Cross (ICRC) takes the view that these bodies must operate impartially and independently from the authority that ordered the detention (see here at page 260). This is very minimal elaboration, however, and though States have developed their own interpretations in military doctrine, it is not clear that these are anything other than policy-based specifications (see here at page 54).

The limited regulation of the review of civilian internment under IHL takes us neatly into the second issue to which I wish to draw attention. This is the position of persons interned under GCIII as prisoners of war. This is a status that traditionally has been treated as advantageous, due to the detailed treatment standards granted to POWs and combatant immunity which comes with the status of combatant (which, though not coterminous with the status of POW, is the most common primary status that leads to the secondary status of POW) (see here at pages 47-8). With respect to detention, however, POW status is not necessarily advantageous, given its presumption of indefinite internment for the duration of hostilities without any form of review of the necessity of internment itself. The reason for this absence of review from GCIII is explained by the assumption that those meeting the definition of a POW (being principally enemy combatants) will necessarily pose a security threat against the detaining power, thus justifying internment for the duration of hostilities. However, the sweeping nature of many contemporary military operations in which large numbers of persons of unknown status are captured on the presumption of being combatants/POWs raises problems for this model under GCIII, for those that are wrongfully detained do not, on the plain text of GCIII, have any means of challenging this internment.

See his full post over at EJIL: Talk!

Schedule of blog posts:

The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations (both directed by Dapo Akande), the Washington DC & London delegations of  International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).

Click here for the 2015 Series.

Click here for the 2014 Series. 

For ICRC's Customary IHL Database on Deprivation of Liberty, click here