The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Internment

In times of international armed conflict, parties to a conflict may take measures of internment concerning civilians or prisoners of war. The difference between internment and detention is that decisions relating to internment are taken by administrative or military authorities, while those relating to detention generally come under the responsibility of judicial authorities. The rules regulating the internment and detention of combatants during international armed conflicts are covered under the precise and detailed rules of humanitarian law concerning the treatment of prisoners of war (GCIII Arts. 21, 22, 30, 31, and 72). In this type of conflict, international humanitarian law sets forth specific guarantees for persons who are arrested, detained, or interned for reasons related to the armed conflict (API Art. 75.6). The internment of civilians is regulated by specific rules (infra). ▸ DetentionJudicial guaranteesPrisoners of war

In the case of non-international armed conflicts, international humanitarian law does not explicitly set out measures for internment. Besides, it does not provide combatant status to members of non-state armed groups opposed to official armed forces. Additional Protocol II to the Geneva Conventions uses the category of “persons who have been deprived of their liberty for reasons related to the armed conflict” to designate and protect persons who have taken part in the hostilities, within non-state armed groups or individually. This group covers situations that amount to the traditional categories of internment or detention (APII Arts. 4, 5). Additional Protocol II also provides judicial guarantees for those persons (APII Art. 6). ▸ Civilians ; Detention; Judicial guarantees; Non-state armed groups

The provisions relating to internment presented below are intended for civilians interned in international armed conflicts. They can, however, be used as a reference for comparable relief actions because they are particularly detailed. Those rules come into effect each time civilians are deprived from their liberty of movement by military or administrative authorities, and when their survival depends on external relief authorized by these authorities. This can be the case in some camps for internally displaced persons. ▸ Internally displaced persons

Procedure of Internment of Civilians

Internment is a security measure that a State may implement in times of armed conflict, concurrently with assigned residence. It targets civilian persons living in the territory of a party to the conflict who are of the nationality of the adverse party or other foreigners. It is also possible for foreigners residing in the territory of the State to request voluntary internment.

  • The occupying power may intern or place in assigned residence certain members of the population of the occupied territories who are considered to be a threat. With regard to civilians, such measures may be ordered only if the security of the detaining power makes it absolutely necessary or if the civilians themselves request it (GCIV Arts. 41, 42, 68, and 78).
  • Any interned person is entitled to an internment decision being reconsidered as soon as possible by a court or administrative board designated by the detaining power for that purpose. If the internment or placing in assigned residence is maintained, this decision must be reviewed periodically, at least twice a year (GCIV Art. 43). Furthermore, if a civilian can no longer support him- or herself as a result of such measures, the party to the conflict that applied this decision is responsible for supporting this person and his or her dependents (GCIV Art. 39).

The Fourth Geneva Convention provides the detailed rules and regulations concerning conditions of internment and the treatment of internees throughout seventy-two articles (Arts. 79–141), the main elements of which have become customary rules.

  • Rule 126 of the study on the rules of customary international humanitarian law published by the ICRC in 2005 (customary IHL study) prescribes that “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.”
  • Rule 128 of the customary IHL study provides that

—In connection with an international armed conflict, prisoners of war must be released and repatriated without delay after the cessation of active hostilities.

—In an international armed conflict, 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.

—In a non-international armed conflict, persons deprived of their liberty in relation to the conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist.

—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.

Places of Internment

Places of internment must be located away from the dangers of war, must be supplied with a system of identification and adequate shelter in case of attack, and must respect all norms of hygiene and health. They must be fully protected from dampness and adequately heated and lighted. The internees must have suitable bedding and sufficient blankets, taking into account the climate, as well as the age, sex, and state of health of the internees. They must have the use of sanitary conveniences that conform to the Geneva Conventions’ rules of hygiene, both day and night. They must be given sufficient water, soap, and the necessary time for their personal hygiene and laundry (GCIV Arts. 82, 83, 85, and 88).

Food and Clothing

Daily food rations for internees must be sufficient in quantity, quality, and variety to keep internees in a good state of health and prevent nutritional deficiencies. Their customary diet must be taken into account (GCIV Art. 89). Internees must have clothing, footwear, and change of underwear that is adequate for the climate. Workers must receive suitable work outfits, including protective clothing. The clothing supplied by the detaining power to internees must not contain outward markings that are ignominious or expose them to ridicule (GCIV Art. 90).

Hygiene and Medical Attention

Every place of internment shall have an adequate infirmary, under the direction of a qualified doctor, and must offer medical examinations every day. It is preferable that internees receive the attention of medical personnel of their own nationality. They may not be prevented from presenting themselves to the medical authorities for examination. Treatment shall be provided free of charge, including any apparatus necessary for the maintenance of internees in good health (e.g., dentures, eyeglasses, etc.). The medical authorities must, on request, issue an official medical report or certificate showing the nature of the illness or injury, and the duration and nature of the treatment given, to every internee who has undergone treatment.

In addition to voluntary medical examinations, when needed, medical inspections of internees must be carried out at least once a month to supervise the general state of health, nutrition, and cleanliness of internees and to detect contagious diseases. In particular, such inspections shall include checking the weight of each internee (GCIV Arts. 91, 92).

Religious, Intellectual, and Physical Activities

Internees shall enjoy complete latitude in the exercise of their religion and ministers of religion may visit them (GCIV Art. 93).

Internees must be given opportunities for physical exercise, sports, and outdoor games (as well as educational and other intellectual exercises). For this purpose, sufficient open spaces must be allocated in all places of internment. Special playgrounds shall be reserved for children and young people (GCIV Art. 94). The detaining power may employ internees as workers, if they so desire, separately from any work directly related to the lives of the internees. Such work must be neither degrading nor humiliating. The standards prescribed for the working conditions, compensation, and health coverage shall be in accordance with international labor rights and standards (GCIV Arts. 95, 96).

Personal Property and Financial Resources

Internees are allowed to retain articles of personal use, including identity documents. They must be given detailed receipts for any object or property withheld by the camp administrators (GCIV Art. 97).

All internees must receive regular allowances, sufficient to enable them to purchase goods and articles, such as toilet requisites and tobacco. They may also receive allowances from the State of which they are a national, the protecting powers, any organizations that may assist them, or their families. Finally, they must also be able to send remittances to their families and other dependents (GVI Art. 98).

Administration and Discipline

Every place of internment must be under the authority of a responsible officer or civil servant, who must possess a copy of the Fourth Geneva Convention in his or her language. This same Convention and the texts of any special agreements, regulations, orders, notices, and publications of every kind must be communicated to the internees and posted inside the places of internment, in a language they understand. In every place of internment, the internees may freely elect the members of a Committee empowered to represent them before the detaining power, the protecting powers, the ICRC, and any other organization that might assist them (GCIV Arts. 99–104).

Relations with the Exterior

Within the week following his or her internment, each internee must be able to inform his or her family, as well as the Central Tracing Agency of the Red Cross. Internees must also be allowed to send and receive letters and cards, individual parcels, or collective shipments containing, in particular, foodstuffs, clothing, and medical supplies, as well as books and objects of a devotional, educational, or recreational character. Such relief shipments are exempt from import, customs, and other dues and may be transported by the ICRC or any other organization authorized by the parties to the conflict.

The censoring of correspondence shall be done as quickly as possible and may not be used as a pretext to delay the delivery of letters or parcels. Every internee is allowed to receive visitors, especially near relatives, at regular intervals and as frequently as possible (GCIV Arts. 105–16).

Penal and Disciplinary Sanctions

The rules that regulate the penal and disciplinary sanctions that may be applied to interned persons for acts committed during their internment are established in Articles 117 to 126 of the Fourth Geneva Convention. The laws in force in the territory on which they find themselves are applicable to internees who break the law during their internment. In passing sentences, the courts must take into account the fact that the defendant is not a national of the detaining power, and they may reduce the penalty prescribed. Disciplinary punishments may in no case be inhuman, brutal, or dangerous for the health of internees. Escape or attempted escape must be liable only to disciplinary punishment. Under no circumstances may internees undergo disciplinary punishment in penitentiary establishments. The premises in which the sanctions are undergone must be in conformity with sanitary requirements, including adequate sleeping quarters. Internees undergoing disciplinary punishment shall be allowed to exercise and to stay in the open air at least two hours each day. They can go to the medical examinations that are offered daily. They may read and write, and send and receive letters.

These rules are further explained in the entry on ▸ Judicial guarantees .

Transfers of Internees

The transfer of internees must always be carried out humanely. As a general rule, the transfer must be conducted by rail or other means of transport and under conditions at least equal to those enjoyed by the forces of the detaining power in their changes of station (GCIV Arts. 127, 128).

Deaths

Internees may give their wills to the responsible authorities for safekeeping. A doctor must certify the death of an internee, in every case, and must make out a death certificate, showing the causes of death and the conditions under which it occurred. Internees who die must be buried (or cremated, according to their religion or express request) honorably and, if possible, according to the rites of their religion. Every death the cause of which is suspect or unknown shall be immediately followed by an official inquiry by the detaining power (GCIV Arts. 129–31).

Release, Repatriation, and Accommodation in Neutral Countries

Each interned person must be released by the detaining power as soon as the reasons that necessitated his or her internment no longer exist (GCIV Arts. 132–35).

Information Bureau and Central Agency

The detaining power must supply the Central Tracing Agency with all information concerning interned persons (GCIV Arts. 136–41).

Central Tracing AgencyDetentionJudicial guaranteesMedical dutiesPrisoners of warSecurity

Jurisprudence

Regarding the legality of internment of civilians during the armed conflict in the former Yugoslavia, the ICTY considered that there could be no doubt that the confinement of civilians can fall under those “measures of control and security” that parties to a conflict may take according to Article 27 of Geneva Convention IV (ICTY Trial Chamber, Celebici Case , Prosecutor v. Mucic et al. , 16 November 1998, para. 569). In this decision, the judges of the Trial Chamber made a distinction between limits to civilians’ freedom that are allowed according to Article 5 and those according to Article 27 of the Fourth Geneva Convention. Article 5 concerns only those whose activity may prejudice the security of the State. Article 27 is broader and allows a party to takes measures of control and security necessary because of the conflict. However, the judges recalled that internment is only permitted when absolutely necessary; they spelled out strict criteria with regard to the interpretation of the concepts of necessity and security (paras. 576–78). The Trial Chamber further considered that, even where the internment of civilians can be justified according to Articles 5, 27, or 42 of Geneva Convention IV, the persons so detained must still be granted some basic procedural rights, according to Article 43 of Geneva Convention IV. These guarantees concern the right to appeal against a decision of internment, and to enjoy the protection and visit of the International Committee of the Red Cross (para. 579). This was confirmed by the Appeals Chamber in its decision regarding the same case (20 February 2001). It considered that confinement of civilians was unlawful where it was not strictly required for security reasons. It explained that the involuntary confinement of civilians during armed conflict may be permissible in limited cases, but clearly becomes unlawful if the detaining party does not respect the basic procedural rights of the detained persons and does not establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV (para. 320).

Regarding the conditions of detention of civilians in camps, the ICTY judges considered the criminal responsibility of those who, de jure or de facto, are responsible for the management of the camp. In the Celebici Case ( Prosecutor v. Mucic et al. , 16 November 1998, para. 1091), the ICTY Trial Chamber considered that the detainees in the camp were exposed to conditions in which they lived in constant anguish and fear of being subjected to physical abuse. Through the frequent cruel and violent deeds committed in the prison camp, aggravated by the random nature of these acts and the threats made by guards, the detainees were thus subjected to an immense psychological pressure that may accurately be characterized as “an atmosphere of terror.” The judges considered that Mucic participated in the maintenance of the inhumane conditions that prevailed in the Celebici prison camp (para. 1123). The ICTY Appeals Chamber decided that he was responsible for these crimes as he was the de facto commander of the Celebici prison camp (ICTY Appeals Chamber, 20 February 2001, para. 214). Indeed, the ICTY decided that in determining questions of responsibility it is necessary to look to effective exercise of power or control and not to formal titles (para. 197).

For Additional Information: 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.

Pelic, J. “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.

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