Detention by Non-State Armed Groups – A Review of Ezequiel Heffes’ Monograph
Notwithstanding the ongoing hostilities between Russia and Ukraine, most conflicts today are non-international in character and involve one or more non-State armed groups (NSAG). Detention is an inherent part of conflict; therefore, it is unsurprising that many of the NSAGs that are party to a conflict engage in detention operations. Yet, the law of armed conflict (LOAC) includes few rules that apply to detention in non-international armed conflict (NIAC). In contrast with the detailed regimes set out in the Third and Fourth Geneva Conventions governing the detention of enemy forces and civilians in international armed conflict, the law of NIAC includes neither an express authority to detain nor detailed rules regarding the detentions conducted by NSAGs.
Ezequiel Heffes’ monograph, Detention by Non-State Armed Groups in International Law, thus makes an important contribution to the literature. By taking a practical approach to the legal issues surrounding NSAGs’ detention operations, using insights from the conduct of NSAGs that have detained individuals during armed conflicts in recent decades, the author draws persuasive conclusions regarding the legal framework governing detentions in a NIAC that will prove valuable to both academics and practitioners.
The Typology of NSAGs
One clear strength of the monograph is Dr. Heffes’ understanding of NSAGs, gained from his years of practical experience working for the International Committee of the Red Cross (ICRC) and Geneva Call. The book addresses head on the paradox that “on the one hand NSAGs are bearers of international obligations, but on the other hand they are also criminal organisations under national law” (p. 35). It also acknowledges throughout that NSAGs vary widely in terms of their size and structure, their degree of organization, and their control over territory.
This reality is one of the reasons why the law surrounding NSAG detentions is so hard to fathom. How can international law devise rules that bind small militia groups, which have limited resources and no control over territory, in the same way as powerful NSAGs that exercise authority over a large areas and populations and have set up State-like institutions for that purpose? The answer, according to Dr. Heffes, is to incorporate a degree of flexibility into the legal framework. “[N]ot all [NSAGs] will have the same rights and obligations, and not all of these rights and obligations will be enforced in a similar manner” (p. 39).
To aid in assessing the appropriate legal framework, Dr Heffes proposes an approach that focuses on the NSAG’s “functional capacity” to possess international rights and obligations (p. 49-53). An NSAG should only be subject to obligations under LOAC if it can be established that it:
is a collective independent organisation, distinct from its members, that it is not under the control of another entity, and that it is made up of formal structures of command and control, with the capacity to use a certain degree of violence and have the ability to ensure respect for basic humanitarian norms (p. 49).
If these criteria can each be satisfied, the particular rights and obligations that bind an NSAG will depend on its individual characteristics. The greater the NSAG’s degree of organization and control over territory, the greater its international legal obligations.
The book develops a typology of three categories of NSAG that may each follow a similar approach to detention. The first encompasses those NSAGs that exercise de facto control over a territory and population, such as ISIS, or the Autonomous Administration of North and East Syria. The second includes NSAGs with a lower degree of organization and control, described as armed opposition groups and exemplified by the FARC in Colombia or the Taliban in Afghanistan prior to July 2021. The third incorporates militias that do not normally exercise control over territory or a population, otherwise referred to as paramilitary groups or warlords, and illustrated by Shia militia groups in Syria or the Lord’s Resistance Army in Uganda.
Through the use of case studies, the author considers the detention practices of each type of NSAG (p. 187-237). This analysis is particularly rich in view of interviews Dr. Heffes conducted with representatives of the three groups to discuss their respective reasons for depriving individuals of their liberty and the rules they applied. His research reveals that NSAGs commonly create their own regulations or “laws” that govern their detention practices. It also exposes the varied grounds on which NSAGs detain individuals during armed conflict.
While most legal scholarship has focused on NSAGs’ internment of individuals based on the threat they pose to the groups’ security, Dr. Heffes’ research indicates that this is not the only reason NSAGs detain. They also conduct criminal detentions of individuals suspected of having committed an offense, they may detain their own members due to misconduct, and some groups deprive individuals of their liberty with the aim of gaining some form of benefit. For example, NSAGs might detain in the hope that this will lead to a prisoner exchange, or to ensure that civilians living under their control pay the taxes imposed. The legality of these various forms of detention depends, in part, on the laws to which NSAGs are bound.
The International Laws that Bind NSAGs
The monograph observes that “any attempt to examine what [NSAGs] are allowed to do, or rather are restricted from doing in the international realm, is met by challenges related to their limited legal ‘subjectivity’, how they acquire international obligations and the actual content of those rules” (p. 70, emphasis in original). These challenges derive from international law’s State-centric focus, as well as States’ unwillingness to grant NSAGs any form of legitimacy.
Dr. Heffes addresses NSAGs’ detention activities not just from a LOAC perspective but also in light of international human rights law (IHRL). The reasons for this are threefold: the more detailed provisions of IHRL that regulate detentions; the protection gaps left by LOAC that need to be filled by another set of international rules; and the legal discourse of international monitoring bodies and organizations, which increasingly refer to NSAGs’ responsibilities under IHRL, particularly when they exercise stable control over territory (p. 73-105).
The author concludes that NSAGs are bound not only by LOAC but also, in some cases, by IHRL. For instance, the IHRL prohibition of arbitrary detention is customary in character, therefore “it is difficult to challenge its application to those detentions by NSAGs that are not inherently linked to an armed conflict . . .” (p. 126). Regarding other customary IHRL norms, Dr. Heffes proposes “a ‘gradated’ approach, which would determine possible human rights obligations based on [the NSAG’s] degree of organisation and control” (p. 127). Here, the typology referred to above becomes relevant, with those NSAGs that exercise de facto control over territory bearing greater obligations than those that are less organized. It is only if a group has the capacity to implement and enforce IHRL that it is bound by the customary norms enshrined in the human rights framework.
To illustrate, the monograph highlights the example of the periodic reviews required under IHRL to prevent a detention from becoming arbitrary. While a de facto authority with State-like institutions that exercises long-term control over territory may be required to set up an impartial tribunal for this purpose, a less organized “militia” could satisfy the duty by appointing an individual who is independent from the group’s command structure and who has the authority to order the detainee’s release (p. 128-29).
The Legal Basis for Detention
A further critical question the monograph addresses is whether LOAC provides a legal basis for the parties to a NIAC to detain (p. 135-67). On one side of the argument is the judgment of the UK courts in the Serdar Mohammed case, which concluded that LOAC includes no authority to detain. For States, a result of this ruling is that they must ground their detention authority in their own domestic laws or a UN Security Council Resolution. For NSAGs, neither of these options is available. Therefore, this viewpoint implies that every detention conducted by an NSAG lacks a legal basis and is unlawful.
On the other side of the debate is the position of the ICRC, which maintains that the law of NIAC contains an inherent power for the conflict parties to detain. However, the ICRC qualifies this by asserting that “additional authority related to the grounds and procedure for deprivation of liberty in [NIAC] must in all cases be provided, in keeping with the principle of legality” (ICRC, Commentary to Geneva Convention III, art. 3, para. 765). By this, the ICRC means that the NSAG leadership must provide grounds and procedures for internment in a set of rules that are “respected by NSAG members and enforced by the NSAG’s internal disciplinary system” (ICRC, Detention by Non-State Armed Groups, p. 55-56).
After analyzing these respective positions, Dr. Heffes concludes that LOAC does not provide a legal basis for detention in a NIAC. He bases this conclusion on the lack of any express authorization within LOAC, as well as the absence of State practice and opinio juris that would allow the identification of a customary rule (p. 165). Instead, the author proposes that NSAGs’ authority to detain should derive from their own “laws” or regulations, in the same way as domestic law provides a legal basis for States (p. 167-85). This represents a middle ground between the two positions outlined above. It accepts the Serdar Mohammed view that LOAC provides no authority to detain but develops the ICRC position by finding the requisite authority within the NSAG’s own rules, rather than in LOAC.
Dr. Heffes’ proposal is grounded in the practice of NSAGs. In his research, the author found that such groups do not normally refer to international law when seeking to detain. They rely instead on their own “laws” or regulations that they develop for that purpose (p. 228). Moreover, he demonstrates that the drafters of the treaty law that governs NIACs (common Article 3 to the Geneva Conventions and Additional Protocol II) were well aware that armed groups would develop their own laws. Dr. Heffes argues that the solution he proposes would not only allow NSAGs to respect their obligations under international law; it would also enhance the protection of individuals and would be consistent with the underlying purposes of LOAC and IHRL (p. 186).
Humanitarian Principles
Dr. Heffes concludes his analysis by outlining a number of basic principles that could be used by NSAGs and humanitarian organizations when dealing with detentions. These include the premise that NSAGs should only intern individuals as a last resort, for imperative reasons of security, and that detainees have the right to a periodic review of their deprivation of liberty.
Any list of humanitarian principles will raise questions regarding why certain criteria have been included while others are omitted. In this case, additional questions arise regarding the status of each principle as either a legal requirement or a policy recommendation. It would have been helpful for the author to clarify his understanding in this respect, particularly given the resource constraints that many NSAGs face and the practical challenges they may encounter in complying with even minimal humanitarian standards. Nevertheless, this guidance is likely to prove helpful both to legal scholars seeking to close the gaps left open by the law of NIAC as well as practitioners that work with NSAGs and seek to assist them to improve their detention practices.
Concluding Thoughts
The activities of NSAGs, including their actions in depriving individuals of their liberty, are an issue of clear and continuing concern to the international community. It is necessary to look no further than the conflict in Syria, and the ongoing detention of thousands of former ISIS fighters and their families by the Autonomous Administration of North and East Syria, to recognize the importance of the issue. While this example is particularly stark, many NSAGs conduct detention operations on a smaller scale. The ICRC estimated in 2021 that around 100 armed groups were holding detainees. Given the enduring role of NSAGs in conflicts across the globe, this is a reality that seems unlikely to change.
In this context, Detention by Non-State Armed Groups under International Law is a very welcome addition to the literature. Its practical focus and well-reasoned conclusions will assist both legal scholars and practitioners in determining how international law regulates detention by NSAGs. Regarding its central premise that NSAGs’ own “laws” can provide a legal basis for NSAGs’ detention activities, this is a proposal that States, as the principal architects of international law, may be reluctant to accept due to the perceived legitimacy that it would grant to NSAGs and their law-making activities. Yet, it is worthy of careful consideration. The binary approach followed by most scholarship on the issue either renders every detention by an NSAG unlawful or finds a basis within LOAC where none is expressly stated. Dr. Heffes’ proposal offers an interesting middle ground between these positions that is grounded in the practice of NSAGs.
Of course, important questions regarding NSAGs’ detention activities remain. One aim of the monograph is to clarify the rules that regulate detentions by NSAGs and thereby enhance the protections afforded to any individuals detained. It remains unclear, however, how an NSAG as an entity, rather than its individual members, can be held to account for any legal violations the group may commit. Notwithstanding the conclusion that NSAGs bear IHL and IHRL obligations, there are few obvious avenues of redress open to victims. To find a solution to these and other issues related to NSAGs’ detentions, it may be necessary to move away from the traditional State-centric view of international law and consider the practice of NSAGs, as critical participants in conflicts across the globe with the agency to interpret and shape legal norms. Ezequiel Heffes’ book represents a significant step forward in that regard.
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Jenny Maddocks is an Assistant Professor in the Department of Law at the United States Military Academy, West Point and the Managing Editor for Articles of War.
Photo credit: Unsplash
