Internment in a transnational armed conflict : a new body of law?

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Master Thesis

Pascalle Langereis

10019499

Internment in a Transnational Armed Conflict: a

new body of law?

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Article 4 of Geneva Convention III sets out the criteria for qualifying as a prisoner of war (POW) during an international armed conflict (IAC). Article 2 of the Convention states that; “the Convention applies during an armed conflict between two or more of the High Contracting Parties or during an

occupation”.1 It follows from this article that Article 4 does not apply during a non-international armed conflict (NIAC). If insurgents are taken prisoner during a NIAC they may be prosecuted according to the county’s national legal system. Armed conflict in the sense of Article 2 is not, however, a black and white understanding. There are situations in which it is unclear whether or not there is an IAC or a NIAC situation. One should think of the current conflict with ISIS or Al Qaida. The question that arises in those situations is what kind of protection the detainees receive when the status of the conflict is unclear. A consequence of one of those situations is the controversy surrounding

Guantanamo Bay.

This raises the question what should be done with those prisoners. Should they be left to the judgment of the State or enjoy the protection of Article 4 or are there other possible solutions?

After reading about Guantanamo Bay I was shocked to find out about the imprisonment of detainees without a clear legal ground due to the lack of status of the conflict and status of the combatants. This brought me to the question of what should be done in this situation in general. Due to these questions I would like to offer a well-balanced opinion about this subject by writing my master thesis about transnational armed conflicts (TAC). A

transnational armed conflict is a conflict between one or more States and an organized armed group on the territory of a third State. This will be worked out in more detail later.

Guantanamo Bay will not be the main topic of my thesis; it will however, be an example of what the lack of clarity in the type of conflict and the status of the combatant can lead to. My thesis will be written with the goal of shedding a

1_{Article 2 Geneva Convention I for the Amelioration of the Condition of the Wounded and}

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light on the problem of detainees in a transnational armed conflict. More specifically, what should be done with the detainees in a transnational armed conflict?

My research question will be; What rights do detainees have in case of a transnational armed conflict and which legal regime applies to this armed conflict?

In order to answer this question I will divide my thesis in a few chapters. I have started with an introduction to the thesis. In my first chapter I will

explain the difference between an IAC, NIAC and TAC and the criteria of each of them.

In the second chapter I will explain the term Prisoner of War and I will thereby arrive at Article 4, internment in a NIAC and in transnational armed conflicts. In this chapter I will show the relevance of defining an armed conflict.

In the third chapter I shall examine the protection granted by IHL and IHRL. In the fourth chapter I will discuss the result of the definition of the conflict and the problem that arises. In this chapter I will make a few references to

Guantanamo Bay because that situation illustrates the problem of a transnational conflict and clearly shows the consequences.

In the fifth chapter I will discuss the possible solutions to this problem and the consequences that follow from these solutions.

Finally, in my conclusion I will come to a solution to answer my research question and defend this conclusion.

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Table of Contents

Chapter 1: IAC, NIAC and TAC ... 5

Chapter 2: Prisoner of War and Detained Persons ... 12

Chapter 3; IHL and IHRL ... 23

Chapter 4; Problems of definition ... 27

Chapter 5; Possible solutions ... 33

Conclusion ... 43

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Chapter 1: IAC, NIAC and TAC

IAC

An International Armed Conflict, in short IAC, is defined in the Geneva Conventions as an armed conflict between two or more States. Common Article 2 to the Geneva Conventions of 1949 states;” declared war or of any armed conflict which may arise between two or more of the High Contracting Parties, even if the State of war is not recognized by one of them.”2 The requirements to be distillated from this article are; armed conflict between two or more States. The violence referred to in this article is the violence as described in Article 2; any use of arms.

The reasons for and intensity of the armed conflict are not relevant to the definition.3

The Convention is binding for the parties; therefore the requirements are as well. It is not relevant if the States acknowledge being in an International Armed Conflict, nor is it relevant whether or not one State recognizes the other State or its regime.4 The facts are leading; a declaration of war is not needed.

The law of IAC balances military necessity and humanitarian considerations.5 One of the leading principles of the Law of Armed Conflict (from here on referred to as IHL) is the principle of equal application.6 It does not matter if one State acknowledges the other one; they still have the same rights and obligations. The treaty does not distinguish between acts of self-defense or a belligerent attack; in both situations the same rules are in effect.7

States are allowed to diverge from the IHL on order to provide more

protection, they are allowed to limit their action to less then the treaty allows them, in no circumstance can they do more.8

2

Article 2 GC I

3

ICRC, How is the Term “Armed Conflict” defined in International Humanitarian law? 2008, p. 1 [Online]

4

Dinstein, the conduct of hostilities under the Law of International Armed Conflict, 2004, p. 16

5

Ibid, p. 16

6

Article 1(1), 1(4) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of international Armed Conflicts (AP I)

7

Dinstein, the conduct of hostilities under the Law of International Armed Conflict, p.4

8

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IHL has always been regulated by rules of customary law.9 The Geneva Convention of 1949 mostly codifies the existing rules of customary Law. The primary sources of the IHL are; the Hague Convention, the Geneva

Conventions of 1949, Additional Protocol I of 1977 and Customary Law.10

NIAC

A Non International Armed Conflict, or NIAC, is defined in Common Article 3 to the Geneva Conventions of 1949 and in Article 1 of the Additional Protocol II. Additional Protocol II is the only formal provision, besides Common Article 3 GC, applicable during NIAC. It formulates fundamental humanitarian

considerations11 and rights for detainees12.

Common Article 3 speaks of a conflict of a non-international character on the territory of one of the High Contracting Parties.13 There are three

requirements that must be fulfilled for a conflict to fall under article 3: 1) an armed confrontation, 2) a minimum level of intensity, 3) a minimum

organization of the non-governmental group.14 The conflict can arise between non-governmental groups, governmental groups or both. The minimum level of intensity that must be met according to Common Article 3 to the Geneva Conventions is comparable to article 1(2) of Additional protocol II, this article can be held as a minimum. Internal disturbances do not qualify as such. According to the Appeals Chambers Decision in the Tadic case, armed violence exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.”15 In case of a NIAC this violence would be between an organized armed group and a State. Article 1 of Additional Protocol II has a more narrow definition. It states that the non-governmental organization must have effective control over a

9

Dinstein, the conduct of hostilities under the Law of International Armed Conflict, 2004, p.5

10

Ibid, p. 9

11

Article 4 Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (APII)

12

Article 5 AP II

13

Article 3 Geneva Convention III Relative to the Treatment of Prisoners of War, 1949 (GC III)

14

Article 3 GC III

15

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territory, the conflict must be between dissentient armed forces of a group and this group must be organized. Internal disturbances are excluded from this article.16 This article does not limit the definition of Common Article 3, it is only relevant for the articles of AP II.17

In 1949 a NIAC would only be qualified as such under Common Article 3 if it would reach the intensity of belligerency or insurgency.18 That changed in the 1990’s. There came treaties and customary law defining NIACs. The goal was to implement the rules governing IAC in the law governing NIAC. International criminal law became more relevant in pursuing war crimes in NIACs and IHRL became more relevant. This was much needed change because States often refuse to implement IHL in order to escape the obligations arising from IHL.19

Treaties are only binding upon the States that ratified them. The problem lies mostly in the ratification of the Additional Protocols, especially Additional Protocol II.20 Additional Protocol II has specific rules governing NIAC. The States that have not ratified AP II are still bound to Common Article 3, unfortunately that only grants minimum protection.21

Court decisions, State practice and the ICRC customary law study have shown that most of the rules adopted in AP I and AP II are rules of customary law.22 States who have not ratified the protocols should therefore still respect the rules that are of a customary nature. Does not apply to the law regarding detention in NIAC.

Transnational Armed Conflict

A transnational Armed Conflict can be defined as an armed conflict between one or more States and a Non-Governmental organized armed group, which

16

Article 1 (2) AP II

17

ICRC, How is the Term “Armed Conflict” defined in International Humanitarian law? 2008, p.4 [Online]

18

Sandesh, The Law of Non-International Armed Conflict, 2012, p. 220

19

Ibid, p. 220

20

Henckaerts, study on customary international humanitarian law, 2005, p.177

21

Farer, International Law and Armed Conflicts; toward the definition of “international Armed Conflict”, in: Colombia Law Review, 1971, p.38

22

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is conducted on the territory of one or more third States.23 This is different from a spillover NIAC in the sense that it did not start as an internal conflict that spilled over to a third State. A TAC is a conflict between a

non-governmental group and a State, not being its home State.24 It is not a legal concept governed by the Geneva Conventions. For now it is only a term that is used in the literature for these kinds of conflicts.

Most armed conflicts are clearly international or internal.25 This is where the TAC stands out. It is of an extraordinary nature because one State is in an armed conflict with a non-governmental group on the territory of a third State while that third State is not involved in the armed conflict.26 It immediately raises the question which body of law is applicable. If we follow the Geneva Conventions we come across the following problem. There is a strict

distinction between IAC and NIAC.27 In order to apply IHL there has to be an armed conflict on the territory of a High Contracting Party.28 For that reason some authors consider this to be a new type of conflict.29 They then

distinguish between an spillover non-international armed conflict; a NIAC that moves to an other State and a cross-border NIAC; an armed conflict between a State and an armed group located on the territory of another State.30

According to the Tadic case “an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between governments authorities and organized armed groups or groups within a State.”31

23

Kress, Some reflections on the International Legal Framework Governing Transnational Armed Conflicts, in: Journal of Conflict & Security Law, 2010, p.245 [Online]

24

ibid, p.245

25

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p. 2

26

27

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p.3

28

Ibid, p.3

29_{Vitė, Typology of armed conflicts in international Humanitarian law, in: international review}

of the Red Cross, 2009, p. 88

30

White & Henderson, Research Handbook on International Conflict and Security Law, 2013, p. 290

31

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In order to apply Common Article 2 to the Geneva Conventions the conflict has to be international, between two or more High Contracting Parties, and an armed conflict.32 It is not relevant if one State does not acknowledge another State or defines the armed conflict as being one.33 A transnational armed conflict is, however, not between two States. The conflict in every State

should be reviewed. Because the conflict is not between two High Contracting Parties, Common Article 2 will not automatically apply.

In order for a conflict to be a NIAC it has to meet the abovementioned criteria set out in Common Article 3 and AP II, this is, as mentioned, customary law. The criteria state that a non-international armed conflict is between a High Contracting Party and a Non-Governmental organized armed group, or two organized Non-Governmental armed groups, within the territory of the High Contracting Party34, there has to be an armed conflict, the group has to be organized, under responsible command and exercise control over part of the territory and a minimum level of organization.35 The threshold of violence has to be met in order for the conflict to be categorized as a NIAC. Because the conflict takes place on the territory of a third High Contracting Party it is questionable if Common Article 3 to the Geneva Conventions even applies in in a TAC.36 Just because the conflict is between an armed group and a State does not necessarily qualify it as a NIAC, mostly because a TAC does not take place on the territory of the State that is party to the armed conflict. On the other hand it has been argued that the territorial requirement is not as relevant for the application of IHL.37 As a counter argument it has been stated that the ICRC argued that the Geneva Conventions have been ratified

universally. The territorial criteria has therefore lost its meaning.38 Note that this argument only goes for the articles of the Geneva Convention, not the

32

Article 2 GC I

33

Dinstein, the conduct of hostilities under the Law of International Armed Conflict, 2004, p.16

34

Article 3 GC III

35

Vashakmadze, The Applicability of International Humanitarian Law to “Transnational” Armed Conflicts, 2009, p 2

36

Ibid, p 3

37

Ibid, p 7

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Additional Protocols because the Additional Protocols have not been ratified universally.

Some experts state that one should also take into account if the Host State consents, objects, participates or is mute to the matter. In case the Host State consents there will not be an IAC because the conflict is not between two States39, it is between the group and a State on the territory of the third State. If the Host-State objects this might lead to the internationalization of the conflict. The sovereignty of the Host-State will be violated and both States might have a separate conflict, however, this does not necessarily lead to internationalization of the conflict between the State and the armed group. The conflict will can also internationalize if the Host States adopts the actions of the armed-group as its own.40 These experts find that the question of consent is determinate in defining the type of conflict as being a NIAC or an IAC.

There will still remain a gap when it comes to the protection of persons captured, not meeting the requirements of Geneva Convention III nor IV. In that case Common Article 3, Article 75 API and customary law will still

apply.41 It is more important to define the group and its scope.42 The territorial element is deemed less important because the aim of IHL is to protect the detainees in an armed conflict. For that reason Sassoli states that the

territorial requirement has only been put into the articles to remind States that the law is applicable.43

Another aspect is the duration of detention. In an IAC it is very clear, when the conflict ends and the detainees must be released or put in trial.44 In a NIAC it is clear that the detainees should be released or put on trial as soon as the

39

Ibid, p. 89

40

ICJ, 24 May 1980, No. 451 (United States of America v. Iran) [Online]

41

Vashakmadze, The Applicability of International Humanitarian Law to “Transnational” Armed Conflicts, 2009, p.5 42 Ibid, p 7 43 Ibid, p. 5 44

Max Planck Institute for Comparative Public Law and International Law, Encyclopedia of Public International Law, In: Elsevier, 1997, p.1113

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threshold is not met anymore or there is no longer a reason of security to hold the detainee.45 This is not determined in a TAC. The body of law that applies to the TAC will determine the internment as well.

There are different views on how to define this type of conflict. Because the conflict is transnational the group does not always have control over part of the territory in a State.

It has been argued that a new set of IHL rules should be designed for this type of conflicts.46

There have been a few examples of TAC such as between the PKK and Turkey, Hezbollah and Israel, and Al Qaida and the US.47

In Chapter 5 I will examine if TAC is in fact a new type of conflict and if this conflict has or should have a new regime.

45

Chatham house and International Committee of the Red Cross, Expert meeting on procedural safeguards for security detention in non-international armed conflict, in: international review of the Red Cross, 2009, p. 877

46

Viet, Typology of armed conflicts in international Humanitarian law, in: international review of the Red Cross, 2009, p .89

47

Kress, Some reflections on the International Legal Framework Governing Transnational Armed Conflicts, in: Journal of Conflict & Security Law, 2010, p. 249 [Online]

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Chapter 2: Prisoner of War and Detained Persons

POW Status in IAC

The Hague Regulations of 1899 and 1907 contained a few provisions

concerning Prisoners of War.48 Despite these provisions practice demanded a special convention containing more detailed rights of Prisoners of War. This Convention complements the provisions mentioned in the Hague Convention. In 1949 Geneva Convention III was drafted and now regulates the Prisoner of War status.49

Before the Hague Conventions were drafted combatants who fell in the hands of the enemy were killed of enslaved.50 Because of the horrors that occurred during World War I and II it became more important to protect Prisoners of War. To ensure more protection Geneva Convention II was first drafted in 1929 and later replaced with the current Geneva Convention III of 1949.

Article 4 of the Geneva Convention III of 1949, hereafter revered to as “GC III”, defines the Prisoner of War. In order to be protected by these provisions a combatant must fall within the categories of the article. The article

distinguishes eight categories, of which I will only discuss the first two;

1) Members of the armed forces of a party to the conflict.51 These include military forces and volunteer corps. They are called the regular armed forces. There are no special requirements for this group, they are assumed to fulfill the conditions of a Prisoner of War.52

2) Members of other militias and volunteer corps.53 These include resistance movements belonging to a party of the conflict. They are called the irregular armed forces. They must fulfill the criteria set out in the article. There must be a chain of command54, have fixed distinctive

48 http://www.icrc.org/ihl/INTRO/305 49 http://www.icrc.org/ihl/INTRO/305 50

Max Planck Institute for Comparative Public Law and International Law, Encyclopedia of Public International Law, In: Elsevier, 1997, p. 1109

51

Article 4 (a) (1) GC III

52

53

54

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signs55, carry their arms openly56, conduct operations in accordance with the laws and customs of warfare57, being organized58, belong to a party to the conflict 59, lack of duty of allegiance to the detaining

power.60

Following article 4 and AP I there are three categories to be distinguished. 1) Regular armed forces, 2) irregular armed forces and 3) civilians according to Article 50 API. It can be said; lawful participants of an armed conflict have POW status.

When a combatant is captured by a Party to the conflict, and his status is unclear, the party must apply Article 5 GC III. This article states that in case of doubt of his status the party must grant him the protection of Article 4,

pending the determination of his status, a competent tribunal must determine his status.61

This shows the relevance of Common Article 2 to the Geneva Conventions, if both parties are High Contracting Parties with armies they will automatically be granted the POW status.62

Most non-State groups do not fulfill the criteria set out in Article 4 (a) (2) GC III. Article 43 GC III states that the irregular armed forces only lose their status when they do not distinguish themselves from civilians and fail to carry their arms openly.63 Most non-State groups, however, do not fulfill these two

requirements. Article 44 (2)(3) AP I states that there are situations in which an armed group is not able to distinguish themselves, in those situations they do not lose their POW status. The requirement to “bearing their arms openly”

55

Article 4 (a) (2) (b) GC III

56

Article 4 (a) (2) (c) GC III

57

Article 4 (a) (2) (d) GC III

58

59

Ibid, p. 1111

60

Judicial Committee of the Privy Council (U.K.), Prosecutor v. Obie Hee Koi, 4/12/1967, A.C. 829 [Online]

61

Article 5 GC III

62

63

Ruys & de Cock, Protected Persons in International Armed Conflict, in: Research handbook on international conflict and security law, 2013, p 385

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does, however, stand. But, even if he fails to bear his arms openly, article 44 (a) AP I will still grant him protection.

This article was designed to give better protection to guerilla movements.64 Because many States disagree with the protection that this article grants these movements it cannot be accounted as customary law. This results in a different treatment by different States, on one hand the States who ratified the Additional Protocol and are therefore bound by it, on the other hand the

States who did not ratify it and are not bound by it. 65

If an irregular combatant does not meet the previously mentioned

requirements to receive the protection of article 44 (a) AP I he loses the status of a combatant. He would receive protection, his belligerent privileges can be stricken and he can be punished for participating in hostilities under domestic law.66 They receive the protection granted by Common Article 3 to the

Geneva Conventions and Article 75 AP I.67

IHL does not acknowledge the right to participate in armed conflicts for persons who do not qualify as combatants in an IAC. There is a distinction between lawful combatants and unlawful combatants. Lawful combatants, or privileged belligerents, cannot be prosecuted for belligerent acts they

committed on behalf of the State. They can be prosecuted for participating in hostilities under domestic law.68 An unlawful combatant is does not fall within article 4 or 5 of the Geneva Conventions. Individuals can therefore be

prosecuted by the other party for participating in the hostilities. They can be prosecuted by the Host State if participating in hostilities is forbidden

according to domestic law.69

Participating in hostilities unlawfully will subject the civilian to attacks. They may be detained to in order to prevent them from taking part in further

64

65 Ibid, p 386 66 Ibid, p. 380 67 Ibid, p. 384 68

J.A. Schoettler, Detention of Combatants in the War on Terror, in: The War on Terror and the Laws of War, 2015, p. 2 [Online]

69

Ruys & de Cock, Protected Persons in International Armed Conflict, in: Research handbook on international conflict and security law, 2013, p. 377

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hostilities.70 The ICRC defines direct participation as 1) participation having effect on military operations, detainees or cause death or harm, 2) direct causation between and act and harm or a continuing operation and 3) a nexus, the aim must be to inflict damage.71

The commentary to Geneva Convention IV states; “every person in enemy hands must have some sort of status under International Law”72, they have to either be POW, a civilian or a member of medical personnel. Members of a resistance movement, for instance, may or may not qualify as POW’s, if they do not they are civilians. If they directly participate in hostilities they will lose their protective status and are liable for attacks. They can be prosecuted under national law for participating in the hostiles and are not protected by the combatant status. In any case, they will always have the minimum protection granted by article 75 AP I.73

The reason for the importance of the commentary is that in case unlawful combatants are not protected persons they are unprotected. States might take advantage of this knowledge and try to qualify all unlawful combatants as being in this category.74

Even though most of the provisions of AP I are considered to be customary law, not all of the provisions are.75 Article 2 of AP III states “the present Convention shall apply to all cases of declared war or other armed conflict which may arise between two or more High Contracting Parties”.76 It is therefore an important step to review if both parties are High Contracting Parties.77

70

Sassoli & Reisner, “Unlawful Combatants”, in: American Society of International Law, 2003, p. 198

71

Ruys & de Cock, Protected Persons in International Armed Conflict, in: Research handbook on international conflict and security law, 2013, p.383

72

Pre-amble Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (GC IV)

73

74 Ibid, p 394 75 Ibid, p. 376 76 Article 2 AP II 77

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Combatants can only be detained for the time of the conflict. The POW status gives the combatant the right to be treated humanely. Ill-treatment and

reprisal by the detaining party is considered a breach of Geneva Convention III, which is never accepted.78 This means that the party has an obligation to; protect the POW from acts of violence, threats and public curiosity, detainees should be transported to a safe location, the detainees should be treated equally to the parties’ own soldiers, they must be supplied with enough food, water and medical attention and death marches are strictly forbidden.79

The ICRC reviews the conditions in the POW camps. The POW is allowed to send a card to the Control Prisoners of War Agency, this is one of the ways ICRC collects up to date information regarding the status and health of the POW.80 It is forbidden to punish the POW for participating in hostilities. They are allowed to be punished for acts committed in the camps, the POWs are subject to the same rules governing the domestic army. In case of a violation the least invasive punishment should be applied, a disciplinary measure would be best. A judicial court can only sentence a POW to a penal punishment. Death penalties, torture or collective punishment are strictly forbidden.81 Disciplinary punishments, fines, stripping of privileges, physical exercise and incarceration are allowed.82

The internment can end on the following grounds. Upon ending of the hostilities the POW must be repatriated to his State.83 It is not clear what should be done with a POW who does not want to be repatriated.84 Parties have an obligation to repatriate sick or wounded POWs who will likely die within a year.85 If a POW does not want to be repatriated, and the hostilities 78 Ibid, p.399 79 Ibid, p.400 80

81

82

83

Ibid, p.1113

84

85

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are not over yet, he cannot be forced to do so.86 If a POW escapes successfully he can return to his Party, he cannot be punished for a

successful escape.87 If he fails, however, he can be punished. Upon warning he can even be shot during a failed escape.88 A Party can also release a POW on a voluntary base.

The POW can be released entirely, partially or on parole. A partial release would mean that they are still confined to the territory. 89

It is evident that a combatant of an organized armed group in a TAC typically does not meet the requirements of article 4 GC III. They are not part of a military force of a State.90 They usually do not fulfill the requirements of article 4(2) GC III. In most cases they will therefore not be granted the POW status.

Internment in NIAC

Domestic law can be a ground for detention, provided detention has a legal base and is specific in formulating the grounds.91 It is, however, unclear if a State can apply domestic law in the Host State. The domestic law must fulfill the requirements set out by IHL and IHRL; these are binding to the State.

Not only can the State’s own domestic law be relevant, the law of the Host State can be relevant as well. It is not clear if the State can detain on grounds of the Host State’s law.92 They can capture a detainee and temporarily hand them over to the Host States authorities, provided that the Host State’s treatment meets the minimum requirements of Common Article 3 and IHRL. States can agree with the Host State to apply this practice. If a criminal prosecution is possible will depend upon het domestic law of the prosecuting State. 86 Article 109 GC III 87 Article 91 GC III 88

89

Ibid, p.1113

90

Article 4 (1) GC III

91

92

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There is no explicit ground set out for detention in NIAC in a body of law; scholars do agree that detention in NIAC is authorized.93 They base this on the rationale of IHL and IHRL. IHRL does not forbid detention, it only forbids arbitrary detention.94

Detention must be necessary on the grounds of imperative reasons of security and have a legal basis under the law.95 It is an exceptional measure under IHRL.96 Internment can be necessary for imperative reasons of security if it is highly likely, or even certain, that the detainee will continue to commit crimes against the detaining power upon his release.97

The detainee has a right to be informed on the grounds of his internment.98 This follows from article 75 (3) AP I. This article has been found to be of a customary nature in case of a NIAC.99 This information should enable him to question the legality of his internment. The information can be delayed or restricted on grounds of military necessity.100 The information must be given as soon as possible.101 The longer the detainee has been interned, the heavier his right to information is weighed.102

It has been argued that the internee has a right to legal assistance.103 This should only be provided if it is possible. There have to be enough qualified attorneys.104

A review process is of great importance. The detainee has a right to challenge the grounds for his internment, in order for him to effectively do that there has

93 Ibid, p. 863 94 Ibid, p 863 95 Ibid, p 863 96 Ibid, p. 864 97 Ibid, p 865 98 Ibid, p 871 99 Ibid, p 875 100 Ibid, p. 871 101 Ibid, p. 872 102 Ibid, p. 873 103 Ibid, p. 876 104 Ibid, p. 876

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to be a review mechanism.105 This can be a court or an administrative body.106 It has to be independent and impartial.107 The ICRC has stated that the review has to take place initially and every six months.108 The detainee must be released as soon as the imperative reasons of security seize to exist.109

Internment in Transnational armed conflict

Combatants can only be detained for the time of the armed conflict.110 The time of the conflict is harder to define in case of a TAC. This has to do with the geographical scope of the conflict. The type of conflict must be defined in every State individually where the conflict takes place. Should the duration of the internment then also be defined in every State individually or should one look at the time of the entire conflict? If a conflict is neither an IAC nor a NIAC, what is the status of the armed groups? Could they be irregular combatants or merely civilians taking part in hostilities?111

Detention grounds for a transnational armed conflict remain controversial.112 I would like to start of with the notion that States do detain combatants during a TAC, the grounds on which this should happen are subject to discussion.113 For that reason I will set out the method of detention that has been used so far.

The US Supreme Court described detention as a fundamental incident of waging war, combatants in armed conflicts can be detained to prevent them from committing acts against the State.114 Detention might be the only way for a State to accomplish this. In a transnational armed conflict the conflict

105 Ibid, p 877 106 Ibid, p 877 107 Ibid, p 877 108 Ibid, p. 877 109 Ibid, p 877 110

Dinstein, the conduct of hostilities under the Law of International Armed Conflict, 2004, p.61

112

J.A. Schoettler, Detention of Combatants in the War on Terror, in: The War on Terror and the Laws of War, 2015 p. 4 [Online]

113

Ibid, p. 4

114

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typically cannot be defined as an IAC. Even if it can be defined as such, most of the times the combatants will not meet the criteria of a POW.115

The US based a right to detain on the Law of Armed Conflict.116 It was based on the right of preventive detention.117 Because a transnational armed conflict is an armed conflict the US finds itself empowered to detain combatants as long as the armed conflict is ongoing.118 The US also applied Common Article 3 to the Geneva Conventions to provide IHL protection.119

The US opted for a definition of an unlawful combatant that can be detained. Under domestic law they defined combatants that can be detained. They defined an unlawful enemy belligerent as a person who engaged in hostilities against the US, who has purposefully and materially supported hostilities against the US120 or was already part of Al-Qaida at the time of the offence.121 Persons who are detained under this definition fall within IHL.122 By defining them as unlawful-combatants, as defined by the US, they do not fall within the Geneva Conventions III or IV and they are liable for attack and can be

detained without the protection of a POW or lawful combatant.123 It should be noted that according to the Geneva Conventions no one can fall between the Conventions124, therefore this reasoning wrong in my opinion.

It is correct to state that they are not POWs, they do not belong to a State and they did not distinguish themselves.125 If they cannot fall between the Geneva Conventions then they should therefore be considered civilians and they should be detained as civilians according to Article 4 GC IV. An unlawful combatant is a civilian who participated in hostilities, but he is still a civilian. 115 Ibid, p. 2 116 Ibid, p 2 117 Ibid, p 2 118 Ibid, p. 3 119 Ibid, p 3 120 Ibid, p. 6 121 Ibid, p 6 122 Ibid, p. 7 123

124

125

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They fall within article 4 GC IV if they are not nationals of the US.126 They are therefore allowed to be detained for as long as they pose a security threat to the detaining State.127

The right of preventive detention is not contested much under international law.128 Under International Law all combatants in an armed conflict can be detained.129 The purpose of preventive detention lies within the neutralization of de combatant, it is not a punishment.130 That is why he should also be freed as soon as he no longer forms a threat.131 The problem lies with long-term detention. The use of IHL for long-long-term detention, such as Guantanamo Bay, has been viewed as stretching the legal limits of IHL.132 Another problem that arises with the application of this policy in a TAC is the undefined scope of the conflict.133 The uncertainty of the scope of the conflict, geographically speaking and the duration of it, make it hard to determine when the conflict ends and thus when the combatants should be released.134 Even though the US applies Common Article 3 to the Geneva Conventions this is still viewed as inadequate protection. Common Article 3 only provide the bare minimum of protection.135

This discussion shows that IHL as it stands does not does not provide an adequate legal ground for detention in transnational armed conflicts. There is, however, an agreement that in armed conflicts there is an inherent right to intern. The right to the minimum guarantees of Common Article 3 can also be distillated from this discussion. Even though it has not been found to be sufficient, there is an agreement that this is the bare minimum.136 The US Supreme Court held that the existence of an armed conflict gives a right to

126

Article 4 GC IV

127

J.A. Schoettler, Detention of Combatants in the War on Terror, in: The War on Terror and the Laws of War, 2015, p 8 [Online]

128 Ibid, p. 2 129 Ibid, p. 6 130 Ibid, p. 3 131 Ibid, p. 3 132 Ibid, p. 3 133 Ibid, p. 4 134 Ibid, p. 4 135 Ibid, p. 3 136 Ibid, p. 3

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intern enemy combatants.137 This does not mean that the US has “a black check when it comes to the rights of the Nations citizens”.138 This means that the detainees have a habeas corpus right to challenge the grounds for

detention.139 He also has a right to counsel.140 This does not only apply in cases where the detainee is held in the detaining State, but also in a Host State.141 According to the US administration foreign detainees do not have a habeas corpus right under the constitution. They can therefore not challenge the lawfulness of the detention leaving them in a “legal black hole”.142 The Supreme Court finally rejected this line of reasoning and stated that they did have jurisdiction to hear the habeas corpus complaints of foreign

detainees.143 It should be noted that under this practice none of the detainees has successfully challenged the authority of the US.144

There are still the bare minimums of rights that can be granted.

137 Ibid, p. 15 138 Ibid, p. 15 139 Ibid, p. 15 140 Ibid, p. 16 141 Ibid, p. 20 142

Yin, “Anything but Bush”, in: Harvard Journal of Law & Public Policy, 2011, p. 463 [Online]

143

Ibid, p. 464

144

J.A. Schoettler, Detention of Combatants in the War on Terror, in: The War on Terror and the Laws of War, 2015, p. 23 [Online]

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Chapter 3; IHL and IHRL

During a NIAC the relevant bodies of law are considered to be IHL, IHRL and domestic law.145 The provisions of IHL are considered to be the lex specialis in case of conflicting provisions. The recent opinion of scholars is, however, that IHRL is still applicable during and an armed conflict.146 It should be kept in mind that IHRL only applies to States.147

There are no explicit provisions of IHL that governs internment during a NIAC; States do, however, intern people during a NIAC.148 It follows from Additional Protocol II that internment is allowed under the Convention. AP II can be applicable during a NIAC and speaks frequently of internment. Common article 3 of the Geneva Convention applies as well. It must be kept in mind that many states who did not ratify AP II are therefore not bound by it; it has been argued by scholars that they would need another ground for internment. It has also been stressed that these articles are not explicit enough to provide a legal ground.149

Scholars are of the opinion that IHL offers an authorization to intern, a so-called “power to intern”.150 They came to this conclusion on the grounds that it follows from practice and the logic of IHL. IHL protects the rights of individuals in time of war. If it would not allow internment by States when the individual poses a threat, the alternative would be to release the individual or kill him.151 Releasing him would not be a likely scenario. In IAC IHL provides the POW status. 152 The ground the Geneva Convention IV provides for detaining

145

Chatham house and International Committee of the Red Cross, Expert meeting on procedural safeguards for security detention in non-international armed conflict, in: international review of the Red Cross, 2009, p.860

146 Ibid, p.861 147 Ibid, p 861 148 Ibid, p.862 149 Ibid, p 866 150 Ibid, p.863 151 Ibid, p 863 152

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civilians is “necessary for security reasons”. The combatants can be detained for participating in hostilities.153

IHRL allows States to detain individuals, however, arbitrary detention is prohibited. It does not specifically have a ground for internment for reasons of security.154 Most human rights treaties only state that the detention may not be arbitrary. There must be a ground for the interment in the law of the

detaining State and it must be just and predictable.155 One of the treaties that falls within IHRL is the European Convention on Human Rights. ECHR

applies to the States of the Council of Europe.156 It is primarily limited to the territory of the States. It can, however, apply extraterritorially.157 It applies extraterritorially to persons under its “actual authority and responsibility”, regardless whether this is internally or abroad.158 This refers to, amongst others, the exception of conduct of a State that causes persons to fall within their jurisdiction. The State will have effective control over these persons.159 The State then has control because it has detained people; because they are detained they fall within the State’s jurisdiction. The ECHR has confirmed this. They found that the convention cannot be interpreted in a manner where

States can violate the convention on the territory of a non-contracting State.160

The ECHR has further restrictions; article 5 ECHR contains a list of grounds for detention. A security reason is not one of the mentioned grounds.161 For the Netherlands this treaty is binding. If the Netherlands would want to detain on grounds of security reasons it would have to derogate from the treaty. This has been established in case law.162

153 Ibid 154 Ibid 155 Ibid 156

Article 1 European Convention on Human Rights (ECHR)

157

Pouw & Ducheine, ISAF Operaties in Afganistan. Oorlogsrecht, doelbestrijding in counterinsurgency ROE, mensenrechten & ius ad bellum, 2010, p.17

158

ECHR, 10 May 2001, No. 25781/94, (Cyprus/Turkey) [Online]

159

Pouw & Ducheine, ISAF Operaties in Afganistan. Oorlogsrecht, doelbestrijding in counterinsurgency ROE, mensenrechten & ius ad bellum, 2010, p. 19

160

ECHR, 16 November 2004, No. 31821/96 (Others v. Turkey) [Online]

161

Article 5 (1) ( a-f) ECHR

162

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The internment must be “necessary” for “imperative reasons of security” on a “legal basis” on “permissible grounds”.163 The burden of proof lies on the detaining power. It must be kept in mind that internment is an exceptional measure, which makes the requirement of necessity even more important. It should be applied in the context of the military operation, the available

alternatives and common sense.164 Imperative reasons of security should be viewed in the light of article 78 Geneva Convention IV. It is a preventive measure, not a punitive measure.165 It should be “highly likely” or certain that the individual will continue posing a threat to the interning Party. The

internment must be adequate to prevent this.166 An independent judicial authority must assess this.167 The assessment must be made on an individual bases.

When an individual is detained, he as a right to information. Most importantly; the reasons regarding his internment.168 A State is not allowed to intern an individual for other reasons then security; holding for the sole purpose of obtaining information is not allowed.169 The internee has 1) a right to know why he is detained, on what grounds and the following consequences of the detainment, 2) a right to contest his detainment and 3) his State and family must be informed if he is foreign national. He should be provided as much information as soon as possible.170

This right to information can be limited for reasons of military necessity. It can only be limited in special circumstances. A balance has to be struck between security necessity and the rights of the internee.171 With security reasons is meant; to protect intelligence sources and methods. The longer the detainee is detained the more the balance will shift in his favor.172

163

164 Ibid, p. 864 165 Ibid, p. 865 166 Ibid, p. 865 167 Ibid, p. 866 168

Article 9 (2) ICCPR jo art 5(2) ECHR

169 Ibid, p. 865 170 Ibid, p. 872 171 Ibid, p. 872 172 Ibid, p. 873

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When a person is detained, IHL requires an initial and periodic review. A judicial or administrative body must do this as soon as possible.173 IHRL does require the review to be done by a competent court, initially and periodically. The court has the power to release the individual if it finds the detention unlawful.174 This should be done on recent information, especially regarding the periodical review.

Interment must end when the hostilities end.175 IHL requires release when there are no grounds for necessity of internment anymore.176 IHRL states that the prisoner must be released when the State cannot provide justification for the interment any longer. 177 The ICRC requires an initial review and a periodical review every six months.

IHL contains the principle of equality. It follows from that principle that not only the State can detain, the non-State actor can detain as well. In order to apply this right provided by IHL, the non-State actor must respect the whole set of IHL rules.178

173

Article 43 (1) GC IV

174

Hill-Cawthrone, The Copenhagen Principles on the Handling of Detainees, 2013 [Online]

175

Article 133 (1) GC IV

176

Art 132(1) GC IV

177

HRC, Baban v Australia Communication No 1014/2001 UN Doc CCPR/C/78/D/1014/2001, par. 7.2 [Online]

178

Chatham house and International Committee of the Red Cross, Expert meeting on procedural safeguards for security detention in non-international armed conflict, in: international review of the Red Cross, 2009, p 870

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Chapter 4; Problems of definition

Human Rights

IHL

IHL grants protection to detained persons in case of an IAC or a NIAC. It grants protection to regular and irregular armed forces. When a combatant is captured and his status is unclear, article 5 GC III applies. The combatant will have the protection given in article 4. Article 44 AP I will still grant protection to combatants who do not wear their arms openly. As said before, IHL makes a distinction between IAC and NIAC.179

It has been questioned by scholars if IHL applies in transnational armed conflicts. Mainly because it is no longer reciprocal.180 This especially goes for conflicts that are not IAC because they are not between two High Contracting Parties and are debatable if they are NIAC because the irregular armed forces are not in conflict with the Host State. It can also be argued that armed groups cannot be a Party to a conflict outside the scope of NIAC.181

If a TAC cannot be defined as NIAC IHL can still protect the combatants in some cases.182 This is not only the case when they are qualified as irregular armed forces. Sassoli argues that they can be considered civilians in case of an already ongoing IAC when they are nationals.183 He also argued that the armed group could be protected by IHL if there is a NIAC between two other parties.184 The armed group is bound and protected by IHL for participation or no longer taking part in the hostilities.185 In order to be protected by IHL the group must exercise control over a territory. This is hardly ever the case with

179

Vashakmadze, The Applicability of International Humanitarian Law to “Transnational” Armed Conflicts, 2009, p.1.

180

Ibid, p 2

181

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p.11 182 Ibid, p. 11 183 Ibid, p. 11 184 Ibid, p. 12 185 Ibid, p. 12

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transnational-armed conflicts.186 Since there is no separate body of law applicable to TAC there has to be made a choice to either apply the body of law regarding IAC, NIAC or a new set of rules entirely.

IHRL

IHRL forms a system that intends to protect persons at all times. IHRL is, however, insufficient to be the only body to grand protection to detained persons in these types of conflicts.187 It is not specific enough to govern detention in armed conflicts because it primarily sees to detention in time of peace.188 IHRL is only binding for States.189 IHRL does not prohibit

interment.190 In order to intern combatants in compliance with IHRL detention may not be arbitrary.191 Lawful detention requires a legal base; this can lie within domestic law if IHL cannot be applied. The grounds have to be just and predictable. If is, however, unclear if domestic law can be applied on the territory of another State. It is also unclear if the detaining State can detain on grounds of the law of the Host State.

ECHR does not provide a specific ground for internment for security reasons. ICCPR does not have an exhaustive list of grounds for detention like ECHR has. In order to intern on the ground of security reasons IHL or domestic law will then have to provide a legal ground. Because of the uncertainty if

domestic law can be applied in these case it becomes more important to apply IHL.

Just because domestic law might not apply does not mean that ECHR and ICCPR do not apply either because the Host State is not a High Contracting Party. The moment a State detains combatants, the combatants are under actual authority and responsibility, therefore the State has to act in

186

Ibid, p.11

187

188

Ibid, p 3

189

190

Ibid, p. 861

191

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conformance with applicable human rights treaties.192 It is not clear if States have to derogate from the obligation in order to detain for security reasons.193

If there were no legal ground to detain on, the alternatives would be killing the combatants of letting them go. As I stated previously, letting them go will be an unlikely outcome. Killing them will not be in conformity with the goal of IHL and IHRL.

IHRL requires a judicial review, periodically and initially. This can be an obstacle in time of war and perhaps an unrealistic demand.

IHRL is primarily designed for protection of detainees in time of peace. IHL is a lex specialis that governs detention in times of armed conflict in case of conflicting provisions. Even though IHRL remains applicable as a body of law, IHL is the lex specialis. This means that if there are conflicting obligations IHRL subsides.

This shows the importance of applying IHL. Not only does it give a ground for internment it also protects combatants. IHRL is not designed to function as to only body of law governing internment and domestic law might fail us.

Guantanamo Bay

In this paragraph I will demonstrate the consequences of the lack of an applicable body of law in a TAC by describing the effect it had during the so-called war on terrorism.

In 2001 The United States of America acknowledged the Taliban as the effective government of Afghanistan. During the attack of the US on the Taliban the conflict was acknowledged as an IAC. Therefore the Geneva

192

Pouw & Ducheine, ISAF Operaties in Afganistan. Oorlogsrecht, doelbestrijding in counterinsurgency ROE, mensenrechten & ius ad bellum, 2010, p. 19

193

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Conventions were applicable during the IAC.194 Taliban member were therefore, POW upon capture. This was not the opinion of the US

government. They stated that they did not fall within article 4 because they did not distinguish themselves and did not act in accordance with IHL.195 They did apply Common Article 3 to captured Taliban fighters.

Al Qaida is a different story. The US considered itself in a war on terrorism. The attacks on Al Qaida were based on the principle of self-defense. It should be noted that self-defense is not a ground for internment. Most States did seem to allow this.196

The US approaches both parties as different conflicts. There is a conflict with the former government of Afghanistan, the Taliban, and a conflict with Al Qaida.197 First of all, Al Qaeda is neither a State nor a subject mentioned in IHL. The US defined it as a criminal organization as defined in national and international law.198 Secondly, the territory where Al Qaida was active was not limited to Afghanistan. This attributes to the opinion that Al Qaida is not a State organ.199

This situation can be treated as two different conflicts; the IAC with the Taliban and the armed conflict with Al Qaida.

The Taliban had become a de facto government.200 They were, at the relevant time, the effective government in Afghanistan. Afghanistan is a High

Contracting Party to the Geneva Conventions, as is the United States. Therefore, IHL applied in this conflict.201 The captured Taliban combatants should have become POW. As stated above, the US government initially did

194

Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal, in: American Society of International American Journal of International Law, 2002, p. 2

195

Ibid, p. 4

196

Kress, Some reflections on the International Legal Framework Governing Transnational Armed Conflicts, in: Journal of Conflict & Security Law, 2010, p. 249 [Online]

197

Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal, in: American Society of International American Journal of International Law, 2002,p.3 [Online]

198 Ibid, p. 3 199 Ibid, p. 3 200 Ibid, p. 3 201 Ibid, p. 3

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not grant the POW status to the Taliban member. If one looks at the grounds of the governments reasoning, it is clear that they applied the test of irregular armed forces. Because the Taliban was a de facto government this test was not correct. The test for regular armed forces should have been applied. At the very least article 5 and article 45(1) API should have been applied. Giving the Taliban members the option to prove to a tribunal that they are indeed entitled to the POW status and granting that status until a tribunal decides.

Al Qaida is not a State, nor a State organ. It can be viewed as a criminal organization and should therefore be entitled to a criminal trial.202 This

argument has been made by the US as well as scholars. Mainly because the group was loosely link with one another and did not distinguishes its

members.203 If they would organize themselves in a more structured manner they could indeed be an irregular armed group.204 This did not mean that they did not have any rights under the law. Under customary law they have the right to the same protection as given under Common Article 3 and Article 75 API.205 Under IHRL arbitrary detention is forbidden.

At the same time Al-Qaida was being attacked just similarly to combatants and were being detained without the privileges of combatants and without a domestic criminal charge.206 The Convention, however, does not allow any prisoner to fall between the Conventions. The US states that they were not combatants, and then they should viewed as civilians and be granted the civilian protection.

In case of doubt of the status of Al-Qaida they should have been granted POW status until a tribunal decides of the status of the members. The US on

202

Ibid, p.3

203

Vitė, Typology of armed conflicts in international Humanitarian law, in: international review of the Red Cross, 2009, p. 93

204

Ibid, p .93

205

Aldrich, The Taliban, Al Qaeda, and the Determination of Illegal, in: American Society of International American Journal of International Law, 2002, p.3

206

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the other hand stated without further arguments that there was no doubt about the status of the individuals.207

During the 2008 campaign Obama stated that he disagreed with the

Guantanamo Bay detention policy.208 He wanted to close Guantanamo Bay within a year209, until this date it is still open. By now a number of detainees have been charged or released, yet there are still prisoners detained without charges.210

In 2009 there was a system to determine whether or not the detainee had a combatant status and to determine the continued status of the risks of the detainee.211 The new course was that no new combatants would be sent to Guantanamo, a few were released on the grounds of the risk assessments.212 There was a special task force assigned to determine which detainees could be released, the task force concluded that most detainees could be

repatriated, only a few would remain in detention.213 The US tried a few suspected Al-Qaida members in federal court214, however, a group of suspected Al-Qaida member have been tried in military court for security intelligence reasons.215 The difference between the federal court and the military court is that the military commission allows hearsay evidence under circumstances in which it would not be allowed in federal court216, and

derivative evidence is allowed.217 The derivative evidence can be a result of a coerced confession.218

Guantanamo Bay is still open because of the political dilemma on how to deal with the remaining fifty prisoners, who will remain in indefinite detention.219

207

Ibid, p. 17

208

Yin, “Anything but Bush”, in: Harvard Journal of Law & Public Policy, 2011, p. 453 [Online]

209 Ibid, p. 454 210 Ibid, p. 455 211 Ibid, p. 462 212 Ibid, p. 462 213 Ibid, p. 463 214 Ibid, p. 470 215 Ibid, p. 471 216 Ibid, p. 482 217 Ibid, p. 484 218 Ibid, p. 484 219 Ibid, p. 455

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Chapter 5; Possible solutions

Should TAC be a separate category of conflicts?

As I stated before TAC is not a type of conflict as defined by the Conventions, it is only a working term used in the literature. The question is if it should be a separate type of conflict.

IHL classifies two different types of conflicts; IAC220 and NIAC.221 If one would look at the wording of the articles alone, a transnational armed conflict cannot be categorized as a NIAC because it crosses borders.222 It is not an IAC either because it does not involve two States. Nor can a non-State armed group be a party to the Geneva Conventions.223 This would leave us with a gap in the law concerning the protection of detainees. This gap in protection contradicts the goal of IHL.224

According to the Tadic case “an armed conflict exists whenever there is a resort to armed forces between States or protracted armed violence between government authorities and organized armed groups or groups within a State.”225 In the Nicaragua case the ICJ stated that Common Article 3 to the Geneva Conventions is applicable in all situations of an armed conflict.226 These two cases show that in any type of armed conflict the minimum rules of Common Article 3, Article 75 AP I and customary law applies.227

A TAC is an armed conflict if there is protracted armed violence between a State and organized armed groups.228 On the other hand it does not fit the description of IAC or NIAC neatly. For this reason I find that this should be a 220 Article 2 GC I 221 Article 3 GC III 222

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p.9 223 Ibid, p.4 224 Ibid, p.9 225

ICTY 15-07-1999, No. IT-94-1A (Prosecutor v. Tadic), par. 70 [online]

226

ICJ 27-06-1986, No. 520 Nicaragua v. United States of America, par 218 [Online]

227

Vashakmadze, The Applicability of International Humanitarian Law to “Transnational” Armed Conflicts, 2009, p. 5

228

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new type of armed conflict. I do, however, believe that via interpretation of the GC, the Additional Protocols and customary law, the law of IAC or NIAC can be applicable.

New body of Law

It has been argued by Scholars that IHL as it stands was not designed to govern TAC.229 Therefore there should be a separate set of rules to govern TAC, according to some Scholars. The problem here is that there have been no proposals of what these articles should contain.230It is also unclear which rules are still adequate; this will then lead to unclarity in practice.231 It has not really been pointed out why there should be new body of law, does IHL not apply or does it not give an adequate answer to the problems?232

Because the conflict is between a non-governmental group and a State Party and the conflict is internationalized Schöndorf suggests to apply the law of non-combatants as found in IAC and the law of combatants as found in NIAC.233

Sassoli is of the opinion that IHL is sufficient to govern all aspects of TAC.234 He also finds it doubtful if a new body of law, partially protecting the armed groups, is going to be accepted by all the States.235 Adding a new category to IHL would be a solution; the existing IHL can be combined and applied to TAC.236 I agree with Sassoli, I think that the law as is stands is adequate to deal with TACs and is applicable.

Interpret Customary Law

According to the ICRC study on customary law there are not that many differences between customary humanitarian law and the Geneva

229

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p20 230 Ibid, p. 21 231 Ibid, p. 21 232 Ibid, p. 21

234

235

Ibid, p. 39

236

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Conventions.237 This is not the case when it comes to detention. State practice and customary law show that the threshold to apply the Geneva Conventions is lower then suggested in art 1 AP I.238 States are more willing to apply IHL, mainly because it benefits the States to qualify a conflict as a NIAC. The IHL rules on detention are more favorable to the State then the IHRL obligations.239 Most of the Geneva Conventions and API are of a customary nature.240

The ICRC conducted a study on customary rules and found that the following rules concerning detention to be of a customary nature. The study made a distinction between rules that are of a customary nature in an IAC or a NIAC. First of all; persons hors de combat must be treated humanely241. This

corresponds with article 75 AP I. This rule is of a customary nature in IAC and NIAC. The next rule is that combatants must distinguish themselves from civilians in order to receive the POW status.242 This is the requirement as laid down in article 4 AP III. This rule is of a customary nature in case of an IAC. Following the rules that combatants engaged in espionage and mercenaries are not granted the POW status.243 This goes for IAC. The following rights have been called customary law and have been declared to be customary law in IAC and NIAC; detainees have a right to food, water, clothing, shelter and medical attention244, woman should be held separately from man except for families245, children must be held separately except for families246, detainees must be held away from the combat zone with a safeguard to their health and hygiene247, personal details must be recorded248, the ICRC must be granted

237

238

Ibid, p.260

239

Ibid, p. 260

240

241

Henckaerts, study on customary international humanitarian law, 2005, p.206

242 Ibid, p. 207 243 Ibid, p. 207 244 Ibid, p. 208 245 Ibid, p. 208 246 Ibid, p. 208 247 Ibid, p. 208 248 Ibid, p. 208

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access249, the ICRC may offer its services to check the conditions and restore contact250 (only in case of NIAC), correspondence with family must be

allowed251, right to visitation from close relatives252, respect for religion253, detainees must be released as soon as the reasons for the detainment cease to exist254(NIAC).

The rules that are of a customary nature should therefore also be applied in a transnational armed conflict.

It does show that a lot of rules regarding internment are of a customary nature. The rules that lay down the interment grounds are not of a customary nature. Customary law is therefore inadequate to govern the transnational armed conflict. It can, however, be of assistance.

Applicability of IAC

It can be argued that a transnational armed conflict should be categorized as an IAC because it crosses the borders.255 This mostly goes for transnational armed conflicts under direction and control of a State, a de facto

government256, or where there is no consent of the Host State to pursue the armed conflict on its territory.257 This can also be the case when a State adopts the actions of the armed group as its own or supports the group from a distance.258 In case of support there should be overall control over the group by the State.259 Not every act of support to an armed group leads to the internationalization of the conflict. There has to be a level of control by the State over the armed group. The level of control must be of an overall

249 Ibid, p. 208 250 Ibid, p. 209 251 Ibid, p. 209 252 Ibid, p. 209 253 Ibid, p. 209 254 Ibid, p. 209 255

256

Sassoli, Transnational Armed Groups and International Humanitarian Law, In: Occasional Paper Series, 2006, p.4

257

Ibid p. 5

258

Vitė, Typology of armed conflicts in international Humanitarian law, in: international review of the Red Cross, 2009, p. 71

259