ICRC Opinion Paper on Internment in Armed Conflict

About the author(s):

Rogier Bartels

Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.

Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.

Three days ago, the ICRC published an opinion paper called “Internment in Armed Conflict: Basic Rules and Challenges” on its website.

The Opinion Paper is “an outline of the basic concepts and rules related to detention in both international and non-international armed conflict with, subsequently, a particular focus on internment, i.e. detention for security reasons in situations of armed conflict. The similarities and differences between IHL and the corresponding rules of international human rights law are also addressed where relevant.”

The paper identifies areas of legal debate, but also gives the ICRC’s position in such debates. For example with regards to internment in non-international armed conflicts “with an extraterritorial element”, it says that “[o]ne view is that a legal basis for internment would have to be explicit, as it is in the Fourth Geneva Convention; in the absence of such a rule, IHL cannot provide it implicitly”. The ICRC’s disapproval of the UK High Court’s findings in the recent Serdar Mohammed v Ministry of Defence case then becomes clear from the following: “Another view, shared by the ICRC, is that both customary and treaty IHL contain an inherent power to intern and may in this respect be said to provide a legal basis for internment in NIAC.”

Most of the content, and the ICRC’s views, contained in the paper can be found in other ICRC sources, but it is nonetheless very useful to have this overview, clearly setting out the ICRC’s position on some internment related matters.

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