Rebellious Detention: Reflections on the ICRC Study on Detention by Non-State Armed Groups
Editor’s note: We are delighted to publish this post on the subject of armed groups by Dr. Ezequiel Heffes. In addition to being a valued contributor to Articles of War, Dr. Heffes is an Editor of the blog Armed Groups and International Law, where readers can find much more coverage of this compelling subject.
In early April 2023, the International Committee of the Red Cross (ICRC) released a much-needed study on “Detention by Non-State Armed Groups: Obligations under International Humanitarian Law and Examples of How to Implement Them.” The focus of the study is the law and practice relating to detention by non-State armed groups (NSAGs). It explains the legal framework protecting detainees in non-international armed conflicts (NIACs) and provides examples of how NSAGs have applied their international obligations. It does so by presenting 13 rules that restate international humanitarian law (IHL) obligations binding on all parties to NIACs and making three additional recommendations. For those who have followed the topic of detention in NIACs, this is a stimulating addition that contains important insights into how these non-State actors operate in conflict settings, and the legal regulation of their activities.
In this post, I engage with three specific issues that are dealt with by the ICRC (and in my book on the topic) that I believe to be of particular importance: (1) the study of NSAGs’ practices to understand how the law is applied in NIACs; (2) the legal framework relied on by the ICRC to assess NSAGs’ detention; and (3) the value of NSAGs’ laws and other internal documents to prevent the arbitrariness of detention in NIACs. First, however, I set the scene by considering detention by NSAGs more broadly.
Detention by Non-State Armed Groups as an Expected Phenomenon
In February 2023, the UN International Commission of Inquiry on Syria issued a report documenting arbitrary detention of civilians, “prolonged blanket internment,” and “unlawful deprivation of liberty” by NSAGs. The Commission concluded by asking all parties to “release those arbitrarily detained.” Syria is not an isolated example. The ICRC noted that in the countries where it operates, over 100 armed groups hold detainees (p. 7). Indeed, during NIACs, NSAGs detain individuals on a regular basis and for multiple reasons. Cases have been documented in Colombia, Mali, the Democratic Republic of the Congo, Myanmar, and the Philippines, among many others.
As such, detention by NSAGs in NIACs is an expected phenomenon or, in the words of the ICRC, “a reality in armed conflict” (p. 8). At the same time, this activity raises legal and practical challenges. These include NSAGs’ lack of knowledge and understanding of the internationally applicable normative framework, as well as their lack of capacity to ensure humane conditions of detention and to provide judicial guarantees in cases of criminal prosecution. In these contexts, detainees find themselves in a situation of vulnerability vis-à-vis their captors, as they are “taken out of their normal environment and are no longer allowed to manage their own lives” (p. 2).
The Importance of Studying Non-State Armed Groups’ Practices
It is undisputed that NSAGs are active in the majority of armed conflicts around the world and that they cause an immense impact on the everyday lives of civilians. As of July 2022, the ICRC noted that at least 175 million people were estimated to live in areas controlled by armed groups, with 64 million of those living in areas “fully controlled” by NSAGs. As a result of these numbers, there is an increasing acknowledgment that understanding how these non-State actors behave may serve to better define strategies of humanitarian engagement that could lead to protective outcomes. This is explicitly recognized in the study under analysis, with the ICRC offering “evidence-based examples of how NSAGs can respect and protect detainees.” The ICRC suggests that the study “may also be of interest for states that consider supporting non-state parties to armed conflict to protect detainees, humanitarian organizations working for the protection of detainees, and researchers working on related issues” (p. 8).
I submit that considering the practice of NSAGs in this field is relevant for two additional reasons. First, these practices can serve to “identify a set of consistent expectations” with regard to NSAGs’ detention in NIACs, thus addressing a concern explicitly expressed by States (p. 33). Second, these practices are useful to inform the normative debates about the legal regulation of NSAGs’ detention activities, in particular those focusing on the grounds on which non-State entities can lawfully (or at least not arbitrarily) deprive individuals of their liberty (pp. 189-190).
The ICRC study importantly considers examples of measures taken by 84 NSAGs, since the 1960s, to implement their detention obligations in 42 different States. The consulted sources include: “‘practices’ witnessed by the ICRC when visiting detainees held by NSAGs;” “‘reported practice,’ as provided in interviews conducted by the ICRC with representatives of 16 NSAGs;” “‘doctrine,’ meaning the ‘laws,’ ‘codes of conduct,’ ‘policies’ or other documents developed by NSAGs;” and “NSAG practices cited in public reports and academic research” (p. 9). This is not the first time that the ICRC has consulted NSAGs and their practices on legal matters. In 2015, it published a thematic report on health care and armed groups, which was based on consultations with 36 NSAGs in 10 different contexts.
If legal processes aim to have a similar protective outcome for populations affected by both States and NSAGs, it is only reasonable to include all parties’ views within the legal framework that governs their behaviors (p. 11). Examining NSAGs’ practice in the field of detention is therefore an important step to increase the protection of individuals in conflict settings.
The International Legal Framework
The ICRC describes contemporary NIACs as those involving NSAGs
with a range of objectives and capabilities, operating in very different contexts. They range from groups that are primarily involved in hostilities to groups that exercise stable control over territory and are able to act like state authorities. NSAGs that hold detainees exist across the entire spectrum (p. 10).
As expected, in order to examine the legal regulation of such actors’ activities, the study relies first and foremost on the IHL applicable in NIACs, restating NSAGs’ obligations as found in treaty law and customary IHL. This is because the binding nature of IHL on NSAGs is indeed undeniable.
At the same time, the ICRC notes that the application of international human rights law (IHRL) to NSAGs “remains unsettled” (p. 9) and, thus, excludes references to this legal framework within the study. In endnote 6, it nonetheless affirms that as a matter of policy, “the ICRC takes a pragmatic approach and operates on the premise that ‘human rights responsibilities may be recognized de facto’ if a non-state armed group exercises stable control over territory and is able to act like a state authority” (p. 66). This follows the recent commentaries to Common Article 3 to the 1949 Geneva Conventions. There, the ICRC claims that as a minimum, “it seems accepted that armed groups that exercise territorial control and fulfil government-like functions thereby incur responsibilities under human rights law” (para. 551).
The broad discussion whether and how IHRL applies to NSAGs has been examined in numerous publications and is not the focus of this post. There is, however, one point that deserves further attention. This relates to the various “types” of NSAG and the legal regulation of detention by those with a higher degree of organization (e.g., de facto authorities). Although as parties to NIACs they are bound by IHL, assessing their activities only through the lens of this legal regime may be unhelpful in certain scenarios.
In particular, highly organized NSAGs with stable territorial control have established “police” or “internal security” forces to undertake law-enforcement operations, for which IHL would have little to say. Furthermore, some detentions may be grounded in the commission of “common” crimes with no nexus to the conflict, “such as paedophilia, marital rape by a civilian or the beating of a child by a parent” (Heffes, p. 93). In these cases, I have argued that “a judicial authority established by an NSAG may issue an arrest warrant, resulting in the deprivation of liberty of an individual, and it would be difficult to post that this is indeed regulated by IHL” (p. 93; for a different view, see here). Because the study does not include any IHRL assessment, it remains unclear whether the ICRC, in line with its institutional position with respect to highly organized NSAGs, considers that some detentions could be regulated also by IHRL.
A Shift in Focus: Non-State Armed Groups’ Laws and Regulations
Lastly, the ICRC study includes guidance on how IHL deals with the grounds and procedures needed to avoid arbitrary detentions in NIACs. It states, in this sense, that “no rule in IHL prohibits detention by NSAGs—rather, IHL is built on the assumption that all parties … will detain; therefore, it sets a number of limits on detention” (p. 11). These include a prohibition on arbitrarily depriving individuals of their liberty. The ICRC also affirms that there are two types of detention envisaged in IHL: criminal detention and internment (p. 11).
For the former, Rule 12 says that “no one may be accused or convicted of any act or omission which did not constitute a criminal offence under the law applicable at the time it was committed; nor may a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed” (p. 58). Importantly, the ICRC explicitly “supports the view that NSAGs can conduct trials based on the law of the state in whose territory they operate or a law adopted by an NSAG provided this law is in compliance with international law” (emphasis added, p. 59). This is an important point, as it recognizes that NSAGs can adopt “laws” to undertake criminal law detention that respect international law (for a similar view, see here, chapter III).
Regarding internments, the ICRC claims that in order to avoid being interned “for vague reasons and without effective control” basic procedural safeguards must be established (p. 55). NSAGs must therefore “provide grounds and procedures for internment in rules that are considered binding by all members, which could be their laws, rules, code of conduct, general orders, or similar instructions” (p. 55). Interestingly, unlike previous ICRC documents dealing with this issue, the 2023 study does not refer to the existence of an “inherent power to detain” in NIACs (e.g., here, para. 765), but only to the need for NSAGs to adopt their own normative frameworks.
Concluding Remarks
The ICRC’s study is a much-needed practice-oriented addition to existing scholarship related to detention by NSAGs. It will assist State and other actors that engage with NSAGs on detention issues, as well as the NSAGs themselves when seeking to respect international law. The study is particularly useful because it reflects the reality of armed conflict: it highlights the importance of examining NSAGs’ practice to better understand how and why they operate.
Finally, in the search for avenues to end arbitrary detention, and based on NSAGs’ own practices from Africa, Asia and Europe, as well as on the applicable legal framework, the study adds that detainees should be released “if the reasons justifying detention no longer exist” (p. 57). This course of action is also recommended “if the detaining authority cannot ensure humane conditions of detention” (p. 50).
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Ezequiel Heffes is the Director of Watchlist on Children and Armed Conflict in New York..
Photo credit: Bangsamoro Information Office
