Traditional international law makes a distinction between detention and internment. Detention is a measure that deprives an individual of his or her freedom and is enacted pursuant to a decision taken by a judicial body for criminal or administrative reasons. Detention for administrative or security reasons is usually called internment and decided by administrative or security bodies. It may take place in times of peace but also of armed conflict.
International humanitarian law distinguishes between detention and internment in situation of international armed conflicts but not in non-international armed conflicts. As a consequence, the word detention is used in this entry as an overarching term to describe the various situations of persons deprived of liberty by administrative, military or judiciary decision.
In situations of armed conflict, several authorities may arrest a person and detain him. These include administrative, police, and military authorities. Guarantees that apply are different from those in peacetime. Rather than influencing the reasons for detaining an individual, humanitarian law sets up guarantees regulating the conditions of detention.
Apart from specific protection status as detainees, internees, or prisoners of war, international humanitarian law establishes basic minimum guarantees of protection for persons deprived of liberty for reasons related to the armed conflict.
Individuals deprived of liberty often find themselves in environments that are conducive to ill treatment. They risk being subjected to various forms of pressure, abuse, deprivation, and violence, without any defense or possibility of escape. As a result, deprivation of liberty may have serious consequences on the health of those detained, as well as on the very notion of medical practice.
In many countries, the judicial system is paralyzed by the lack of public funds, and prisons become places where people stay for a long time while awaiting a judgment. Many of them do not even survive their conditions of detention. Delinquents and criminals mix with individuals who are victims of abusive denunciations or who are considered members of an “undesirable” group from a social point of view (e.g., street children, poor or marginalized persons, the sick, etc.).
In a prison context marked by scarcity and violence, any humanitarian action must be grounded in a precise set of rights and operational principles in order to effectively assist the individuals who need it and limit complicity in ill-treatment.
In situations of international or non-international armed conflicts, the Geneva Conventions give the International Committee of the Red Cross (ICRC) the right to have access to all detention sites where protected persons are being held and the right to meet with them. This applies to both civilians (GCIV Art. 143) and prisoners of war (GCIII Art. 126) as well as anybody deprived of his or her freedom for reasons linked to the conflict, be it international (API Art. 75) or non-international (APII Art. 5). So as not to weaken the responsibilities of protection given by humanitarian law to the ICRC, the presence of any other humanitarian organizations working with detained individuals should be absolutely transparent, and their actions should occur with full knowledge and respect for the rules of law applicable to such situations.
We will explain here that specific judicial guarantees must regulate arrests and detention (section I). Other standards establish a framework to regulate the minimum material conditions that must exist, including medical services (section II). Finally, humanitarian law sets forth specific standards that must be respected in times of armed conflict (section III).
Traditional legal terminology uses the term detainee for individuals who have been incarcerated as a result of a conviction and accused or indicted persons for individuals who are awaiting judgment. The terms detained persons or untried prisoners also refer to those deprived of liberty for reasons other than criminal prosecution (Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Resolution of the UN General Assembly, 43/173, 1988).
In situations of armed conflict, international humanitarian law uses the terms detainees , internees , prisoners of war, and other “persons deprived of their liberty for reasons related to the conflict.”
Judicial Guarantees Relating to the Arrest and Detention of Individuals
Under normal circumstances, individuals are detained on the basis of legal decisions. The legal and judicial framework, which prohibits arbitrary arrests, protects the regime of detention.
Prohibition on Arbitrary Detention
Detaining an individual without judgment is prohibited by all international human rights texts, as well as the criminal laws of most States. This point is set forth clearly in Article 9 of the 1948 Universal Declaration of Human Rights, and it is echoed and expanded by Article 9 of the 1966 International Covenant on Civil and Political Rights (ICCPR).
- All individuals have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention, or deprived of his or her liberty, except on such grounds and in accordance with such procedures as are established by law.
- Any individual who is arrested must be informed, at the time of arrest, of the reasons for the arrest, and must be promptly informed of any charges against him or her.
- Any individual arrested or detained on a criminal charge must be brought promptly before a judge or other officer authorized by law to exercise judicial power. The individual must be tried within a reasonable amount of time or must be released. Detaining people in custody while awaiting trial should be the exception, not the rule. The release of persons being held may be conditional upon certain guarantees, such as their appearing for trial and other parts of the proceedings.
- A release may also be requested if the investigation is completed and there is no risk that the accused will hinder the trial proceedings.
- All individuals deprived of liberty, by arrest or detention, are entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is unlawful.
- Any person who has been the victim of unlawful arrest or detention has an enforceable right to compensation.
Limits to Provisional Detention
Most States provide the possibility of provisional or preventive detention for individuals suspected of having committed a crime for which they have not yet been judged. This decision should be taken by the judicial authority whose role it is to facilitate the inquiry or prevent the individuals from fleeing.
Specific time frames are established for provisional detention by the criminal laws of the country in question. At the end of the legislated time, the detained person must be released automatically, unless he or she has been charged with an offence or an official and justified decision has been taken to prolong the period of provisional detention.
In many countries, the paralysis of the judicial system means that individuals may be held in detention for prolonged periods of time while awaiting judgment, long after the official period of provisional detention has expired.
It is possible to take action on a case-by-case basis by examining the individual files of detained persons, on the basis of domestic law provisions in conformity with international human rights law.
Minimum Standards Regulating the Conditions of Detention
In addition to the judicial guarantees regulating arrest and detention, there are international norms regulating the minimum conditions of detention, so as to protect the dignity of human beings in such circumstances. Even if the prison system is placed under the control and responsibility of the national judicial authority, international minimum standards of treatment for detained persons are still relevant as they set out the minimum rules for conditions of detention anywhere in the world.
Minimum Material Conditions of Detention
Article 10 of the ICCPR states:
- All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
- Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
- Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
- The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.
Prisons are often environments of violence, coercion, and hardship, in which individuals may become victims of ill treatment.
International texts establish rules relating to the standard minimum for the treatment of prisoners in order to ensure that:
- prisoners’ conditions of detention do not constitute any form of torture or other cruel, inhuman, or degrading treatment; and
- they are given the necessary means of survival, such as vital space, food, medical care, air, light, and physical activities.
The set of regulations for the Standard Minimum Rules for the Treatment of Prisoners are set forth in Resolution 2076 of the UN Economic and Social Council, which completes and expands Article 10 of the ICCPR. The Standard Minimum Rules are not binding on States since they are only presented in a UN resolution. Hence, from a legal point of view, it would be feasible for national authorities to challenge these standards. In practice, however, such a challenge would be highly questionable since the standards set forth do not present an ideal set of rules but rather the minimum acceptable threshold for treating detainees.
Furthermore, these principles were reiterated, in similar form, in the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UN General Assembly Resolution 43/173, of 9 December 1988) and in the 1990 Basic Principles for the Treatment of Prisoners (UN General Assembly Resolution 45/111), by which we can conclude that these norms have become customary and are therefore binding upon all States. They must therefore serve as a standard of reference and be defended through concrete relief or advocacy actions.
The minimum conditions established by ECOSOC Resolution 2076, which must be respected in times of crisis, emergency, or conflict, as well as during times of peace, are the following:
- Rule 7—Holding a register: In every place where persons are imprisoned, a bound registration book with numbered pages must be kept, indicating for each prisoner his or her identity; the reasons for his or her detention and the authority that decided it; and the day and hour of his or her admission and release. No person shall be received in an institution without a valid commitment (or detention) order, the details of which shall have been previously entered in the register.
- Rule 8—Separation of categories of prisoners: The different categories of prisoners must be held in separate institutions or parts of institutions. For instance, young prisoners shall be separate from adults; untried prisoners shall be separate from convicted prisoners; men and women must be detained in separate institutions, or at least in entirely separate premises; and the reason for the detention should be taken into account.
- Rules 9 to 14—Accommodation: All accommodation provided, in particular sleeping accommodations, must meet the health requirements, including air, minimum floor space, lighting, heating, ventilation, and the necessary sanitary equipment and installations to ensure a decent and dignified life.
- Rules 15 to 20—Living conditions: Prisoners must be able to maintain their self-respect, and must therefore be able to wash themselves, wear clean clothes, have individual underclothing, eat food in sufficient quantity, and be able to exercise.
- Rules 21 to 26—Medical services: See section 3: medical services in prison settings.
- Rules 27 to 32—Discipline and punishment: Order and discipline may be maintained inside detention institutions but must always be enforced according to written laws or internal regulations that clearly set forth which conduct constitutes a disciplinary offense, the types and duration of punishment that may be inflicted, and the authority competent to impose such punishment. Corporal punishment and all cruel, inhuman, or degrading punishments are prohibited as punishment for disciplinary offenses. Punishment by close confinement or a reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he or she is fit to sustain it. The medical officer shall visit prisoners undergoing disciplinary punishment every day.
- Rules 33 and 34—Instruments of restraint
- Rules 35 and 36—Information for, and complaints by, prisoners
- Rules 37 to 39—Contact with the outside world
- Rules 40 to 42—Books and religion
- Rule 43—Retention of prisoners’ property
- Rules 44 and 45—Notification of death, illness, transfer, etc.
- Rules 46 to 55—Personnel working for the detention institution and inspection
Special Conditions of Detention
Additional rules are applicable to specific categories of detainees or to especially vulnerable individuals such as children, mentally or physically ill persons, or pregnant women. These rules are also included in the Standard Minimum Rules for the Treatment of Prisoners (Resolution 2076 of the Economic and Social Council).
- Rules 56 to 81—Sentenced prisoners: These rules serve as a reminder that being deprived of liberty is their punishment, the purpose and justification of which are to allow the offenders to improve themselves. The means of detention must not create new suffering and should ultimately enable the individual to reinsert him- or herself into society. The rules suggest concrete measures to put these principles into practice, in terms of treatment of the detainees, their work, education, and social relations.
- Rules 82 and 83—Insane and mentally abnormal prisoners: Persons who are found to be mentally ill shall not be detained in prisons and should be taken to mental institutions as soon as possible. The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
- Rules 84 to 93—Prisoners under arrest or awaiting trial; and Rule 95—Persons arrested or detained without charge: All persons who have not yet been convicted must be presumed innocent and treated as such. Untried prisoners shall be kept separate from convicted prisoners, and young untried prisoners shall be kept separate from adults. Untried prisoners shall be allowed to keep their own clothing. If they wear prison dress, it shall be different from that supplied to convicted prisoners. They must be offered the opportunity to work, but are not required to do so. If they work, they shall be paid for it.
An untried prisoner shall be allowed to inform his or her family and lawyer immediately and shall be given all reasonable facilities to communicate with them, including the possibility to communicate in confidence with his or her lawyer. No measures of reeducation or rehabilitation may be imposed on persons not convicted of a criminal offense.
- Rule 94—Civil prisoners: In countries where the law allows individuals to be imprisoned for debt, persons so imprisoned shall be treated no less favorably than untried prisoners, with the exception that they may be required to work to pay off their debts.
- Rules 8a, 23, and 53—Women: Women and men must be detained in separate institutions, as far as possible. In an institution that houses men and women, the whole of the premises allocated to women shall be entirely separate and shall be under the authority of a responsible woman officer.
Women prisoners shall be attended to and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.
In women’s institutions there shall be special accommodation for all necessary pre- and postnatal care and treatment. Arrangements shall be made, wherever possible, for children to be born in a civilian hospital. If a child is born in prison, this fact shall not be mentioned in the birth certificate.
- Children: The principle according to which young prisoners shall be kept separate from adults is reaffirmed in all relevant legal documents, such as Rules 8.d and 85 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution 2076 of the Economic and Social Council), and Article 10.2.b of the ICCPR.
The 1989 International Convention on the Rights of the Child (CRC) adds several important elements to this rule:
- No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
- No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention, or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
- Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs of persons of his or her age (namely, in terms of food and education). In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
- Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, and impartial authority, and to a prompt decision on any such action (Art. 37 of CRC).
On 29 November 1985, the UN General Assembly adopted the UN Standard Minimum Rules for the Administration of Juvenile Justice (known as the “Beijing Rules,” UN General Assembly Resolution 40/33), which further elaborates on the principles relating to criminal responsibility of minors and the principles governing sanctions enacted against them. These guidelines were complemented with the adoption of the UN Rules for the Protection of Juveniles Deprived of Their Liberty (UN General Assembly Resolution 45/113, of 14 December 1990). ▸ Children
Medical Services and Medical Ethics in Prison Settings
Various rules make up the framework for carrying out medical services in detention centers or prisons. Deprivation of liberty sometimes has grave consequences on the health of detainees, as well as on the very notion of medical practice. The rules that the medical personnel must follow are guided by the respect for medical ethics and by the standards imposed on medical services in prison settings.
The Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Resolution 37/194) was adopted by the UN General Assembly on 18 December 1982:
- These principles establish that health personnel charged with the medical care of prisoners and detainees have a duty to provide them with treatment and care of the same quality and standard as is afforded to those who are not imprisoned or detained (principle 1).
- They provide a broad definition of medical ethics and therefore of the responsibility of physicians, since they establish that “it is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts that constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” (principle 2). This text indicates that a physician’s presence in a place of detention may place him or her in the position of a passive accomplice of inhuman acts committed against the detainees. Medical personnel can only break with this passive complicity by taking concrete measures of alertness and prevention, in addition to the normal medical procedures.
Other organizations, such as the World Health Organization (WHO) and the World Medical Association (WMA) also adopt guidelines and declarations relating to specific aspects of practicing medicine in prison settings (concerning, e.g., mandatory AIDS testing). States are not bound by these texts; however, humanitarian organizations may use them as standards of reference for their field operations.
Finally, the Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Resolution 2076), presented earlier, sets forth the rights and duties governing medical services in places of detention:
- Rule 22: At every penitentiary institution, at least one qualified medical officer shall be available. In the absence of a physician certified by the penitentiary administration, it is important that the substitute medical personnel have knowledge of the responsibilities, beyond straightforward care, to which physicians are beholden in prison settings.
- Rule 23 concerns care for women; see section 2, earlier.
- Rules 24 and 25.1: The medical officer must examine every prisoner as soon as he or she is admitted and, being responsible for the physical and mental health of the prisoners, shall see all sick prisoners every day, as well as all those complaining of illness, and any to whom his or her attention is specially directed.
- Rule 25.2: The medical officer shall report to the director whenever he or she considers that a prisoner’s physical or mental health has been, or will be, injuriously affected by continued imprisonment or by any condition of imprisonment.
- Rule 26: The medical officer shall regularly inspect and advise the director on issues of food, hygiene, and other issues of sanitation, such as heating, lighting, and ventilation, and the quality and cleanliness of the bedding. The prison director must take the reports and advice of the medical officer into consideration, as prescribed under Articles 25 and 26.
- Rule 32: The medical officer must examine any prisoner who is going to undergo punishment and must certify in writing that he or she is fit to sustain it. The medical officer must also daily visit prisoners undergoing such punishments and advise the director if the punishment should be terminated or altered on grounds of physical or mental health.
- The specific rules that protect medical services and ethics in times of armed conflict, addressing medical care both for prisoners of war and for the population as a whole, are detailed in the entries on ▸ Medical ethics ▸ P risoners of war; Wounded and sick persons .
Additional Rules Applicable during Armed Conflicts
The minimum rules for the treatment of prisoners, listed earlier, constitute standards of reference that remain applicable even in times of conflict, since they set forth “minimum rules,” specifically. Persons whose detention is not related to the conflict must definitely continue to be granted the protection provided by these rules.
Humanitarian law also establishes specific rules to protect individuals deprived of liberty for reasons related to the armed conflict. The two 1977 Additional Protocols to the Geneva Conventions introduced this concept of “persons detained or deprived of their liberty for reasons related to the conflict” in order to safeguard a status of protection for persons who did not fulfill the definition of combatant or could not benefit from prisoner-of-war status. This particularly concerns the fate of civilians who directly participate in the hostilities, but also members of non-state armed groups who do not have the status of combatant in non-international armed conflicts.
This is important because, in times of armed conflict, the peacetime judicial guarantees are mostly inefficient. The risks of abuse increases, as the authorities who have control over the detainees often belong to the adverse party to the conflict.
Hence, the guarantees established by humanitarian law to control the fate of the detainees go beyond the common basic principles, and they include concrete rules that are mandatory for States and detaining powers.
International Armed Conflicts
Humanitarian law is applicable to two main categories of persons who may be detained for reasons related to the conflict: combatants and civilians.
Combatants who fall into the hands of an adverse party are usually protected by the status of prisoners of war. The 143 articles of the Third Geneva Convention regulate with considerable detail the treatment of prisoners of war.
Civilians deprived of liberty for reasons related to the conflict are protected by the specific rules that regulate detention and internment. Humanitarian law also takes into account the issue of the administration of justice and the conditions of detention in territories occupied by the enemy, and it imposes precise regulations.
The 1977 Additional Protocol I to the Geneva Conventions sets forth the general provisions for the protection of civilians.
- Any person arrested, detained, or interned for actions related to the armed conflict shall be informed promptly, in a language he or she understands, of the reasons for these measures being taken. Except in cases of arrest or detention for criminal 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 (API Art. 75.3).
- No sentence may be passed and no penalty be executed on a person found guilty of a penal offense related to the armed conflict, except pursuant to a conviction pronounced by an impartial and regularly constituted court (API Art. 75.4).
- Any person arrested, detained, or interned for reasons related to the conflict shall benefit from the full judicial guarantees set forth by Article 75, and in particular 75.4, of Additional Protocol I, as elaborated upon in the entry on ▸ Judicial guarantees .
- Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. However, in cases in which families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units (API Art. 75.5).
Detention of Civilians in Occupied Territories
In cases where a territory is occupied by an enemy power, the Fourth Geneva Convention sets forth clear rules to protect the normal functioning of the systems of justice and detention:
- “The Occupying Power may not alter the status of public officials or judges in the occupied territories, or in any way apply sanctions to or take any measures of coercion or discrimination against them” (GCIV Art. 54).
- The penal laws of the occupied territory shall remain in force (GCIV Art. 64).
- The occupying power can enact new regulations governing its conditions of occupation and defining new violations against the occupying authority, within the restrictions imposed by the Convention. These laws can never be retroactive (GCIV Arts. 65, 67).
- The Convention restricts the cases in which the occupying power can decide to impose the death penalty—namely, in the case of offenses against the occupying power’s forces or administration (GCIV Art. 68).
- Articles 71 to 74 describe the judicial guarantees and the rights of defense in case of trials before the courts of the occupying power.
- Protected persons who are accused or convicted must be detained in the occupied country. They must enjoy conditions of food and hygiene sufficient to keep them in good health and that will be at least equal to those obtained in prisons in the occupied country. They shall receive the medical attention required by their state of health. Women shall be confined in separate quarters and shall be under the direct supervision of women. Proper regard shall be paid to the special treatment due to minors (see above*,* special protection for children). Protected persons shall have the right to receive at least one relief parcel monthly (GCIV Art. 76).
- Protected persons shall have the right to receive the visits of representatives or delegates of the protecting powers or the ICRC, who will be allowed to interview them without witnesses. The duration and frequency of these visits may not be restricted (GCIV Art. 143).
- Protected persons who have been accused or convicted by the courts in the occupied territory must be handed over, at the end of occupation, with the records concerning them, to the authorities of the liberated territory (GCIV Art. 77).
Internment of Civilians
A party to a conflict may decide to enact measures depriving certain persons of liberty, such as foreigners or nationals of the adverse party to the conflict who are on their territory or territory they occupy. Humanitarian law refers to such acts as “internment” or “placing in assigned residence.”
Such measures may be ordered only for imperative reasons of security. Under specific conditions, the occupying power may also intern civilians who are protected by the Geneva Conventions, if they constitute a threat to the occupying authority (GCIV Arts. 41–43, 68, and 78).
All internment measures must follow the rules established in the Fourth Geneva Convention (GCIV Arts. 79–141). ▸ Internment
Specific Guarantees for Detained Children
Children arrested, detained, or interned for reasons related to armed conflict must benefit from special guarantees due to their age, their specific psychological and physiological needs, and the fact that they may not—in general criminal law—be held responsible for their crimes. These guarantees are protected in humanitarian law by the following provisions:
- Children must be given priority in the distribution of relief supplies (GCIV Arts. 23, 50; API Art. 70).
- Children held in detention must be held in the same place of internment as—and lodged with—their family (GCIV Art. 82); receive additional food, in proportion to their physiological needs (GCIV Art. 89); be allowed to attend school, either within the place of internment or outside (GCIV Art. 94); be released in priority, if possible even before the end of hostilities (GCIV Art. 132).
- Article 50 of the Fourth Geneva Convention establishes that the treatment of accused or detained persons must take into consideration the special treatment to which children are entitled (GCIV Art. 76). This system of special protection includes provisions forbidding the recruitment of children into groups dependent on the detaining power and establishes States’ obligations to provide children with the necessary material care and education, as well as with the privileged treatment foreseen for them in terms of food, medical care, and shelter from the effects of war.
- If children are arrested, detained, or interned for reasons related to armed conflict, they must be held in quarters separate from those of adults, except where families are accommodated together, in which case the family must be held together and accommodated as a family unit (API Arts. 77.4, 75.5).
Specific Guarantees for Detained Women
Humanitarian law specifies certain additional guarantees for women, especially pregnant women and mothers of young children:
- “Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units” (API Art. 75.5, GCIV Art. 82).
- Pregnant women and mothers having dependent infants who are arrested, detained, or interned for reasons related to the armed conflict shall have their cases considered with the utmost priority (API Art. 76.2). In particular, in addition to children, expectant mothers, maternity cases, and nursing mothers must be given priority in the distribution of relief supplies (GCIV Arts. 23, 50; API Art. 70), and they must be given additional food in proportion to their physiological needs (GCIV Art. 89).
- Pregnant women and mothers with infants and young children must be released in priority, if possible even before the end of hostilities (GCIV Art. 132).
- Article 50 of the Fourth Geneva Convention establishes that the treatment of accused or detained persons must take into consideration the special treatment to which women, particularly expectant mothers and mothers of children under seven years, are entitled (GCIV Art. 76).
Specific Guarantees for Detained Prisoners of War
Wounded or sick prisoners of war who have certain serious injuries or diseases are entitled to special measures of protection under humanitarian law. These provisions take into account the vulnerability of such seriously ill or injured persons and the advantages that may be gained by treating them in a peaceful and safe environment (GCIII Arts. 109–17). The Geneva Conventions and their Additional Protocols establish the conditions under which seriously sick or wounded prisoners of war may be evacuated or hospitalized in a neutral State, rather than continuing to treat them in the hospitals of the detaining power and to consider them prisoners of war. Such measures may also be implemented for civilian internees who are seriously ill or injured (GCIV Art. 132). ▸ Prisoners of war
Authorities are responsible for the health and physical integrity of the persons in their power. If they refuse to provide the necessary care to a person under their authority, or if they deliberately risk the health of the person, they are guilty of war crimes.
The Additional Protocol I to the Geneva Conventions reinforces the protection that must be provided to victims of conflict, in general, and the wounded and sick, in particular. It states that “the physical or mental health and integrity of persons who are in the power of the adverse Party or who are interned, detained or otherwise deprived of liberty as a result of a [conflict] shall not be endangered by any unjustified act or omission.” Any such act or omission constitutes a war crime (API Art. 11).
This provision emphasizes the responsibility of humanitarian and medical organizations in terms of monitoring the state of health of the civilian population and alerting the appropriate authorities.
Noninternational Armed Conflicts
The distinction between civilians and combatants is more complex during non-international armed conflicts. The 1977 Additional Protocol to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) does not define different categories of detained persons when setting forth the guarantees that must be respected. Instead, it applies consistently to “persons deprived of their liberty for reasons related to the armed conflict” (APII Art. 5.1).
The rights it protects are as a minimum applicable to both detained and interned persons and are coupled with obligations that the detaining powers must respect.
Detained individuals who come under the category of combatants may be able to benefit from the status of prisoners of war or the guarantees attached to that status, according to the Third Geneva Convention (GCIII Arts. 4.a.1–3, 4.a.6), following specific conditions of reciprocity and according to special agreements signed between the parties to the conflict. This status is thus not granted automatically. It would be the result of a reciprocal agreement signed between the parties to the internal conflict.
Minimum Guarantees for Detained Persons
- Common Article 3 to the four 1949 Geneva Conventions foresees certain minimum guarantees during non-international armed conflicts for individuals taking no active part in the hostilities, including members of the armed forces who have laid down their weapons and persons placed hors de combat by sickness, wounds, detention, or any other cause. Therefore, this article is binding on civilians who directly participate in hostilities, within non-state armed groups or individually.
It forbids torture and other cruel, inhuman, or degrading treatment or punishment.
It also prohibits, at any time and in any place whatsoever, “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples” (Common Art. 3.1.d). This article is now recognized as a mandatory rule of customary international law. Its application cannot be refused, whatever the situation or the status of the individuals involved. It is a fundamental guarantee and a judicial guarantee applicable at all times and in all places, including to members of non-state armed groups or terrorists groups who cannot sign the Geneva Conventions and do not necessarily respect the provisions of humanitarian law. International tribunals and the U.S. Supreme Court affirmed that its application could not be limited by restrictive interpretations concerning criteria of qualification of conflicts or combatants. ▸ Combatants ▸ Customary international law ▸ Fundamental guarantees
Article 5.1 of Additional Protocol II extends these minimum guarantees. It adds the following provisions that must be respected as a minimum with regard to persons deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained:
- The wounded and the sick, whether or not they have taken part in the armed conflict, shall be respected and protected. They shall be treated humanely and shall receive, to the fullest extent practicable and with the least possible delay, the medical care and attention required by their condition. No distinction shall be made among them on any grounds other than medical ones (APII Art. 7).
- These persons shall, to the same extent as the local civilian population, be provided with food and drinking water and be given the necessary safeguards with regard to health, hygiene, and protection against the rigors of the climate and the dangers of the armed conflict.
- They shall be allowed to receive individual or collective relief.
- They shall be allowed to practice their religion and, if requested, to receive spiritual assistance.
- If made to work, they shall enjoy working conditions and safeguards similar to those enjoyed by the local civilian population.
- Individuals who are not detained but whose liberty is restricted for reasons related to the armed conflict shall enjoy the same rights.
Obligations and Responsibilities of the Detaining Powers (APII Art. 5.2)
“Those who are responsible for the internment or detention of the persons [deprived of their liberty for reasons related to the armed conflict] shall also, within the limits of their capabilities, respect the following provisions relating to such persons:
- except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women;
- they shall be allowed to send and receive letters and cards . . . ;
- places of internment and detention shall not be located close to the combat zone. The persons [deprived of their liberty for reasons related to the armed conflict] shall be evacuated when the places where they are interned or detained become particularly exposed to danger arising out of the armed conflict, if their evacuation can be carried out under adequate conditions of safety;
- they shall have the benefit of medical examinations;
- their physical or mental health and integrity shall not be endangered by any unjustified act or omission. . . .”
If the authorities decide to release persons deprived of their liberty, they must take the necessary measures to ensure their safety (APII Art. 5.4).
Article 5.2 is binding on official governmental authorities but also on non-official authorities such as non-state armed groups, to the extent that they are parties to the conflict.
Therefore, they are bound to respect those obligations in their activities of detention and judgment of individuals during the conflict.
Rules of Customary International Humanitarian Law
Rules of customary international humanitarian law, published by the ICRC in 2005, have identified norms of IHL concerning detention that are binding on all the parties to international armed conflicts (IAC) and non-international armed conflicts (NIAC), whether or not they have signed the conventions. The respect of those rules does not exempt parties to the conflicts from the respect of more binding rules provided in the conventions.
Rule 118. Persons deprived of their liberty must be provided with adequate food, water, clothing, shelter and, medical attention. (IAC/NIAC)
Rule 119. Women who are deprived of their liberty must be held in quarters separate from those of men, except where families are accommodated as family units, and must be under the immediate supervision of women. (IAC/NIAC)
Rule 120. Children who are deprived of their liberty must be held in quarters separate from those of adults, except where families are accommodated as family units. (IAC/NIAC)
Rule 121. Persons deprived of their liberty must be held in premises that are removed from the combat zone and that safeguard their health and hygiene. (IAC/NIAC)
Rule 122. Pillage of the personal belongings of persons deprived of their liberty is prohibited. (IAC/NIAC)
Rule 123. The personal details of persons deprived of their liberty must be recorded. (IAC/NIAC)
Rule 124. A. In international armed conflicts, the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families. (IAC)
- In non-international armed conflicts, the ICRC may offer its services to the parties to the conflict with a view to visiting all persons deprived of their liberty for reasons related to the conflict in order to verify the conditions of their detention and to restore contacts between those persons and their families. (NIAC)
Rule 125. Persons deprived of their liberty must be allowed to correspond with their families, subject to reasonable conditions relating to frequency and the need for censorship by the authorities. (IAC/NIAC)
Rule 126. Civilian internees and persons deprived of their liberty in connection with a non-international armed conflict must be allowed to receive visitors, especially near relatives, to the degree practicable. (IAC/NIAC)
Rule 127. The personal convictions and religious practices of persons deprived of their liberty must be respected. (IAC/NIAC**)**
Rule 128. A. Prisoners of war must be released and repatriated without delay after the cessation of active hostilities. (IAC)
- Civilian internees must be released as soon as the reasons that necessitated internment no longer exist, but at the latest as soon as possible after the close of active hostilities. (IAC)
- Persons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist. (NIAC)
The persons referred to may continue to be deprived of their liberty if penal proceedings are pending against them or if they are serving a sentence lawfully imposed.
▸ Camps ▸ Children ▸ Civilians ▸ Customary international law ▸ Fundamental guarantees ▸ Ill-treatment ▸ International humanitarian law ▸ Internment ▸ Judicial guarantees ▸ Medical ethics ▸ Non-state armed groups ▸ Prisoners of war ▸ Red Cross and the Red Crescent ▸ Safety ▸ Women
- International Criminal Tribunals
The International Criminal Tribunals have ruled on cases where civilians were arbitrarily arrested during armed conflicts. These cases concerned various detention camps and various motives for detention. The Tribunals spelled out several conditions according to which arbitrary detention may constitute a crime against humanity. According to the ICTY Trial Chamber ( Krnojelac Case , 15 March 2002), these conditions are: (1) an individual is deprived of his or her liberty; (2) the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; (3) the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty (para. 115).
In the Kordic and Cerkez Case (26 February 2001), the ICTY Trial Chamber considered that the deprivation of liberty of the individual without due process of law, as part of a widespread or systematic attack directed against a civilian should be understood as arbitrary imprisonment (para. 302). In the Celebici Case ( Prosecutor v. Delalic and Mucic , 20 February 2001), the ICTY Appeals Chamber explained that the exceptional measure of confinement of a civilian will be lawful only where the provisions of Article 42 and 43 of Geneva Convention IV have been respected (paras. 322 and 327). Thus, the detention or confinement of civilians will be arbitrary where these conditions are not fulfilled.
The Tribunals considered the criminal responsibility of those in charge of the camps and detention centers. In the Celebici Case ( Prosecutor v. Delalic and Mucic , 20 February 2001), the ICTY Appeals Chamber explains that a camp commander commits the offense of unlawful confinement of civilians where he has the authority to release civilian detainees and fails to exercise that power, where (1) he has no reasonable grounds to believe that the detainees do not pose a real risk to the security of the State, or (2) he knows that they have not been afforded the requisite procedural guarantees.
- Supreme Court of the United States
In 2004, the U.S. Supreme Court recognized that individuals of American nationality detained in Guantanamo had the right to contest the legality and the motives of their detention before a federal court. The Supreme Court held that even in times of war, the powers of the U.S. president were not absolute with regard to the treatment of U.S. citizens (U.S. Supreme Court, Yaser Esam Hamdi and Esam Fouad Hamdi v. Donald Rumsfeld, Secretary of Defence, et al. , 542 US 507 , 28 June 2004). The judges held that “we have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens” (p. 29 of Judge O’Connor’s opinion).
In its judgment of 2004 in the case Rasul and others v. Bush , the U.S. Supreme Court also recognized that nothing prevented U.S. federal courts to be competent to judge the legality of the detention of non-U.S. citizens detained in Guantanamo. The court, however, did not rule on the existence of a right of habeas corpus to those non-U.S. citizen detainees (U.S. Supreme Court, Shafiq Rasul et al., Petitioners v. George W. Bush, President of the United States , and Al Fawzi Khalid Abdullah Fahad al Odah et al. v. United States et al. , 542 US 466, 28 June 2004).
In 2006, in the case Hamdam vs. Rumsfeld , the U.S. Supreme Court went beyond the two previous decisions. It affirmed that the guarantees relative to detention contained in Common Article 3 to the Geneva Conventions were applicable to all individuals detained in the United States in the context of the war on terrorism, whatever their nationality or the place of their detention. The Court also considered that the creation of military commissions by executive orders was a violation of the fundamental guarantees of Common Article 3 because those commissions were executive bodies and not judicial bodies (U.S. Supreme Court, Salim Ahmed Hamdam, Petitioner v. Donald H. Rumsfeld et al. , 548 US 557 ).
In June 2008, in the case Boumediene et al. v. Bush , the U.S. Supreme Court recognized that the right to contest the legality of the motives and procedures of detention before a tribunal ( habeas corpus ) applied to the individuals detained by the American authorities in Guantanamo, whatever their nationality or the territory of their detention. In so doing, the Court rejected all the restrictions that had previously been imposed on the exercise of this right for detainees in the war against terrorism. In this case, the Supreme Court also recognized the extraterritorial application of the fundamental guarantees contained in human rights conventions (U.S. Supreme Court, Boumediene et al. v. Bush, President of the United States, et al. , no. 06-1195, 12 June 2008).
- European Court of Human Rights (ECHR)
In various judgments, the ECHR has recalled the complementary and simultaneous application of international human rights law and international humanitarian law provisions regarding arbitrary detention and respect for judicial guarantees in situation of armed conflict.
For Additional Information: Aeschliman, A. “Protection of Detainees: The ICRC Behind the Bars.” International Review of the Red Cross 857 (2005): 83–122.
Ashdown, Julie, and Mel James. “Women in Detention.” International Review of the Red Cross 877 (March 2010): 123–41.
Borelli, Silvia. “Casting Light on the Legal Black Hole: International Law and Detention Abroad in the ‘War on Terror.’” International Review of the Red Cross 857 (2005): 38–68.
Delaplace, E., and M. Pollard. “Visits by Human Rights Mechanisms as a Means of Greater Protection for Persons Deprived of Their Liberty.” International Review of the Red Cross 857 (2005): 69–82.
Doswald-Beck, Louise. Human Rights in Times of Armed Conflict and Terrorism . Oxford: Oxford University Press, 2011.
Droege, Cordula. “Transfers of Detainees: Legal Framework, Non-refoulement , and Contemporary Challenges.” International Review of the Red Cross 871 (September 2008): 669–701.
Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, esp. part 5, chap. 37.
ICRC. Deprived of Freedom . Geneva: ICRC, 2002.
———. Visiting People Deprived of Their Freedom: An Introduction. Geneva: ICRC, 1998.
Pelic, Jelena. “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence.” International Review of the Red Cross 858 (June 2005): 375–91.
Proulx, Vincent-Joel. “If the Hat Fits Wear It, If the Turban Fits Run for Your Life: Reflection on the Indefinite Detention and Targeted Killings of Suspected Terrorists.” Hastings Law Journal 56, no. 5 (2005): 801–900.
Reyes, Hernan, and Remi Russbach. “The Role of the Doctor in ICRC Visits to Prisoners.” International Review of the Red Cross 284 (September–October 1991): 469–82.
Rodley, Nigel S. The Treatment of Prisoners under International Law . Oxford: Clarendon Press, 1999.
Sassòli, Marco, and Laura M. Olson. “The Relationship between International Humanitarian Law and Human Rights Law Where It Matters: Admissible Killings of Fighters and Internment in Non-international Armed Conflicts.” International Review of the Red Cross 871 (September 2008): 599–627.
Tuck, David. “Detention by Armed Groups: Overcoming Challenges to Humanitarian Action.” International Review of the Red Cross 883 (September 2011): 759–82. Available at: http://www.icrc.org/fre/assets/files/review/2011/irrc-883-tuck.pdf .