International law and the procedural regulation of internment in non-international armed conflict

Abstract

'International humanitarian law' (IHL) has long differentiated between international and non-international armed conflicts, regulating the latter, at least at the level of treaty law, far less than the former. One of the starkest examples of this is in the case of administrative detention on security grounds or 'internment'. Thus, IHL applicable in international armed conflicts establishes a seemingly robust regime regarding internment. As such, it specifies the limited grounds on which an individual may be interned, the procedural safeguards that must be provided to internees, and the point at which the internee must be released. In the conventional IHL provisions applicable in non-international armed conflicts, on the other hand, no equivalent rules are made explicit. In addition, the application in such situations of international human rights law (IHRL), which also contains procedural rules applicable to detention, is considered by many to be very controversial. This has led to considerable confusion over the current state of the law governing detention in non-international armed conflict, and it is here that some of the most controversial practices and intractable debates within IHL of the last decade have developed. The present thesis seeks to clarify the law here and does so through a comprehensive examination of both IHL and IHRL. It begins with a discussion of the general context in which the thesis falls, i.e. the distinction between international and non-international armed conflicts. This is considered from an historical perspective, considering the basis for the distinction as well as its appropriateness in contemporary international law. Having considered this general question, the thesis then moves on to an examination of the current lex lata with regard to internment in non-international armed conflicts, with a comprehensive examination of both IHL and IHRL. Regarding IHL, it is shown that, whilst there remains a dearth of conventional and customary rules here, one can discern a general prohibition of internment that is not necessary as a result of the conflict. The application of the IHRL rules on detention in non-international conflicts and their interaction with relevant rules of IHL are then explored, with substantial reference to the practice of both states and human rights treaty bodies. It is shown that, absent derogation, human rights treaty rules continue fully to regulate detentions by states in relation to non-international armed conflicts, alongside the minimal rules of IHL. However, it is also demonstrated that the current law remains inadequate in this area. First, there is significant disagreement between the human rights treaty bodies on the extent to which derogation from these rules is permitted. Second, persons detained in non-international conflicts by non-state armed groups or by states with no human rights treaty obligations are protected by the far more basic customary rules in this area. The thesis, therefore, concludes with a set of concrete proposals for developing the law here, in a manner that builds upon and clarifies the current obligations of all states and non-state armed groups.