Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence

International Review of the Red Cross

Volumn 87, Issue 858, 2005, Pages 375-391

  Pejic, Jelena ^a  

^a Development of International Humanitarian Law   (Switzerland)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84989241403     PISSN: 18163831     EISSN: 16075889     Source Type: Journal    
DOI: 10.1017/S1816383100181408     Document Type: Article

References (55)

1. See Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff Publishers, Geneva, 1987
2. “Commentary on Protocol I relative to international armed conflicts”, Art. 75 (3), para. 3063.
3. GC IV, Arts. 43 and 78
4. AP I, Art. 75 (3).
5. ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, 9 July 2004, para. 106.
6. See “Commentary on AP I”, Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. (note 1), paras. 2927–2935.
7. AP I, Art. 75 (8).
8. “Commentary on P II”, AP. (note 1), paras. 4428–4430.
9. ICCPR, Art. 4 (2).
10. ICCPR, Art. 9 (4).
11. It should again be noted that this text does not deal with the internment of prisoners of war in international armed conflicts, which is governed by the Third Geneva Convention. As already mentioned, it is assumed that the right to liberty of person has been derogated from in keeping with Article 4 of the ICCPR.
12. See Commentary on the Geneva Conventions of 12 August 1949, Vol. IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art. 42, p. 257.
13. See also the Commentary on Article 78, at page 368, which reiterates that: “In any case such measures can only be ordered for real and imperative reasons of security; their exceptional character must be preserved.”
14. The argument that administrative and criminal detention are two distinct regimes is — at first glance — undermined by Article 68 of the Fourth Geneva Convention which deals with petty offences committed by protected persons in occupied territory. The Commentary on Article 68, however, rectifies any possible perception of overlap between the regimes of administrative and criminal detention that the wording of the provision suggests. It reads: “Internment is a preventive administrative measure and cannot be considered a penal sanction. It is nevertheless mentioned here under the same head[ing] as simple imprisonment, because the authors of the Convention wished to make it possible for the military courts of the Occupying Power to give persons guilty of minor offences the benefit of conditions of internment (emphasis added) provided for in Article 79 et seq. The provision was a humane one and was intended to draw a distinction between such offenders and common criminals.” Commentary on GC IV, Geneva Convention relative to the Protection of Civilian Persons in Time of War. (note 19), pp. 343–344.
15. Geneva Convention relative to the Protection of Civilian Persons in Time of War, Art. 78, p. 367.
16. AP II, Art. 4 (2) (b).
17. ICCPR, Art.4(l).
18. See e.g. Report of the Working Group on Arbitrary Detention, UN Doc. E/CN. 4/2004/3, 15 December 2003, para. 60 (“in no event may an arrest based on emergency legislation last indefinitely”)
19. Inter-American Commission on Human Rights—Annual Report, 1976, OAS Doc. OEA/Ser.L/V/II.40, Doc. 5 corr. 1 of 7 June 1977, Section II, Part I (“the declaration of a state of emergency or a state of siege cannot serve as a pretext for the indefinite detention of individuals, without any charge whatever. It is obvious that when these security measures are extended beyond a reasonable time they become true and serious violations of the right to freedom”).
20. ICCPR, Art. 4 (2).
21. GC IV, Art. 147.
22. ICCPR, Art. 4(1).
23. ICCPR, Art. 9 (2); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 10; 11 (2); 12 (1) (a) and (2); 14
24. UN General Assembly resolution 43/173 of 9 December 1988 (hereinafter “Body of Principles”).
25. AP I, Art. 75 (3), Body of Principles, Principle 14.
26. GC IV, Arts. 106 and 138.
27. GC, Art. 136.
28. GC, Art. 143.
29. GC, Arts. 106,107,137 and 138.
30. Body of Principles, GC. (note 29), Principles 12 and 16 (1).
31. Body of Principles, GC. (note 29), Principle 32.
32. See also Human Rights Committee, General Comment No. 29, para. 11.
33. Human Rights Committee, General Comment, para. 15.
34. Commentary on GC IV, General Comment. (note 19), Art. 78, pp. 368–369.
35. General Comment, Art. 43, p. 260.
36. ICCPR, Art. 9 (4).
37. Body of Principles, ICCPR. (note 29), Principle 32.
38. See also Human Rights Committee, General Comment No. 29, para. 11.
39. Human Rights Committee, General Comment, para. 15.
40. Commentary on GC IV, General Comment. (note 19), p. 261.
41. General Comment.
42. See, inter alia, Body of Principles, General Comment. (note 29), Principles 17 and 18.
43. General Comment, Principle 18.
44. General Comment, Principle 32.
45. See, inter alia, GC IV, Arts. 106, 107 and 116.
46. See GC IV, Art. 5
47. Commentary on GC IV
48. GC. (note 19), p. 56.
49. AP II, Art. 5 (2) (b).
50. Body of Principles, AP. (note 29), Principle 19.
51. It should be noted that under human rights soft law the legal counsel, a family member or another person who has knowledge of the case may also make submissions regarding the treatment of a person in administrative detention. See Body of Principles, AP. (note 29), Principle 33 (1) and (2).
52. See Art. 3 common to the four Geneva Conventions.
53. See Art. 5 (3) of the Statutes of the International Red Cross and Red Crescent Movement (1986).
54. E.g. the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment set up by the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
55. E.g. the UN Commission on Human Rights Working Group on Arbitrary Detention.