Arbitrary deprivation of liberty is prohibited by international law; hence even during armed conflict internment of adversaries must have a legal basis in international humanitarian law or national law. The law of non-international armed conflict contains an inherent power to intern. Nevertheless, a further legal source is needed to ensure detention is not arbitrary, outlining grounds and procedure of detention. Such legal grounds do not exist for internment by organised armed groups. This article will outline the possible consequences for members of armed groups when interning without a further legal basis, thus in violation of the prohibition of arbitrary detention, and will subsequently suggest solutions to overcome the imbalance between obligations imposed upon and instruments granted to these actors.

  • 11

    Henckaerts and Doswald-Beck, supra note 3, Rule 99.

  • 12

    In 2005, in order to provide delegations with some guidance for their dialogue with States and non-governmental armed groups, the ICRC adopted an institutional position on the procedural safeguards to be observed with respect to internment/administrative detention in all situations of armed conflict, see J. Pejic, ‘Procedural principles and safeguards for internment/ administrative detention in armed conflict and other situations of violence’, 87 IRRC 858 (2005).

  • 14

    Henckaerts and Doswald-Beck, supra note 3, Rule 99, at 344; Pejic, supra note 12, at 377.

  • 18

    Art. 42 and 78 GC IV, supra note 8.

  • 19

    Commentary GC IV, supra note 16, (Article 42) at 258, while Article 78, at 368 merely states ‘for reasons of its own’.

  • 20

    Art. 147 GC IV, supra note 8, and repeated in Art. 85 AP I, supra note 10.

  • 24

    Henckaerts and Doswald-Beck, supra note 3, Rule 99.

  • 31

    Pejic, supra note 12, at 375.

  • 38

     See Arts. 42 and 78 GC IV, supra note 8.

  • 40

    Schabas, supra note 2, at 918-919.

  • 44

    Henckaerts and Doswald-Beck, supra note 3, Rule 99, at 344.

  • 46

    Commentary GC IV, supra note 16, (Article 3), at 34.

  • 48

    As argued by Dingwall, supra note 13, at 152-155. However, an attempt to prosecute unlawful confinement as cruel treatment under the ICTY Statute failed; the Court held that whether deprivation of liberty amounted to this had to be seen on a case by case basis, but in the circumstances did not in and of itself constitute cruel treatment in the particular case, Judgment, Prosecutor v. Fatmir Limaj, Case No. IT-03-66-T, ICTY, 30 November 2005, para. 232.

  • 53

    Commentary GC IV, supra note 16, at 38 and 600. See also Art. 1 of the Hostage Convention: a specific intent is required for an act to constitute to a hostage: to force another natural of judicial person or group of persons, a State, or an international organization to do or refrain from doing something, Art. 1, 1979 International Convention against the Taking of Hostages, 1316 UNTS 205: ‘…in order to compel a third party (…) to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage’ However, this is of less relevance seeing that a situation of application of the GCs excludes the application of the hostage convention; see Art. 12 of the Convention, ibid.

  • 58

    Art. 2(1), ICCPR, supra note 10; Art. 1 ACHR, supra note 27; Art. 1, 1981 African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 (ACHPR); Art. 1 ECHR, supra note 27 uses the word ‘secure’ which seems to contain the same broad meaning.

  • 74

    Art. 8, Draft Articles, supra note 59.

  • 78

    Zegveld, supra note 76, at 176.

  • 82

    Henckaerts and Doswald-Beck, supra note 3.

  • 87

    Talmon, supra note 85, at 123. The effect of this will nevertheless be tempered by the non-reciprocal character of the obligations stemming from international humanitarian law.

  • 88

    Sassòli, supra note 8, at 16.

  • 90

    Art. 78 GC IV, supra note 8, will further be left out of the scope of this analysis since a similar phenomenon to occupation does not exist in non-international armed conflict.

  • 94

    Commentary GC IV, supra note 16, (Article 3), at 34.

  • 99

    Henckaerts and Doswald-Beck, supra note 3, Rules 1-24.

  • 100

    ICRC DPiH Study, supra note 7, at 27 and 30.

  • 101

    Art. 4 GC III, supra note 17, gives conditions for the acquisition of POW status, which divides between the possibilities of being member of the armed forces f the conflict, members of militia forces belonging to a party to the conflict and fulfilling the 4 criteria given in Art. 4(a)(2) GC III, ibid., or members of armed forces of a non-recognized government. Art. 44 (3) AP I, supra note 10, defines combatants by those who distinguish themselves from the civilian population.

  • 102

    ICRC DPiH Study, supra note 7, at 31.

  • 106

    Goodman, supra note 104, at 50 and 53.

  • 107

    J. Pejic, supra note 12, at 380; ICRC Expert meeting, supra note 9, at 5.

  • 108

    Commentary GC IV, supra note 16, art. 42 at 258.

  • 109

    Art. 4 GC IV, supra note 8.

  • 111

    ICRC Expert meeting, supra note 9, at 5; a two-pronged test is proposed that the person commits a further harmful act is ‘highly likely’ and that the threat needs to be neutralized. However, this clearer definition still leaves wide discretion.

  • 112

    Sassòli and Olson, supra note 96, at 623.

  • 115

    Commentary GC IV (Article 3), supra note 16, at 42.

  • 117

    Art. 3, 1969 Vienna Convention, supra note 92.

  • 118

    Zegveld, supra note 76, at 28.

  • 123

    Art. 75, AP I, supra note 10.

  • 124

    M. Veuthey, ‘Learning from History: Accession to the Conventions, Special Agreements, and Unilateral Declarations’, in Proceedings of the Bruges Colloquium, Relevance of International Humanitarian Law to Non-State Actors, 25-26 October 2002 139 (2003).

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  • 130

    Sassòli, supra note 118, at 50.

  • 138

    Mack, supra note 135, at 19.

  • 144

    Sassòli, supra note 8, at 22.

  • 145

    Commentary GC IV (Article 3), supra note 16.

  • 146

    D. Capie and P. Policzer, ‘Keeping the Promise of Protection: Holding Armed Groups to the Same Standards as States’, Armed Group Project, Working Paper Series 3 (2004), at 2-3.

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  • 147

    Goodman, supra note 104, at 51.

  • 148

    ICRC Expert meeting, supra note 9.

  • 151

    N. Florquin and E. Decrey Warner, ‘Engaging non-State armed groups or listing terrorists? Implications for the arms control community’, UNIDIR Disarmament Forum (2008), at 19-20.

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