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Unravelling Unlawful Confinement in Contemporary Armed Conflicts
Belligerents’ Detention Practices in Afghanistan, Syria and Ukraine
Series: - International Humanitarian Law Series, Volume: 60
Author:
Winner of the 2022 Francis Lieber Prize
This book explores how States and armed groups deprive us of liberty in armed conflict. Intriguing insights into original field records of internal laws and first-hand testimonies by fighters and humanitarians reveal hidden patterns of belligerents’ controversial behaviours in relation to three complex aspects of security detention in non-international armed conflict that remain unsettled in international law – permissible grounds, procedural guarantees, and transfer standards. As you flip through the pages of this fascinating book, you will gain a new understanding of where the boundary of unlawful confinement lies between local and international law and why we need a new international legal framework to protect us from arbitrariness in the warring parties’ decision to detain.
This book has won the 2022 Francis Lieber prize, awarded at ASIL, for the best monograph published on the law of armed conflict.
This book explores how States and armed groups deprive us of liberty in armed conflict. Intriguing insights into original field records of internal laws and first-hand testimonies by fighters and humanitarians reveal hidden patterns of belligerents’ controversial behaviours in relation to three complex aspects of security detention in non-international armed conflict that remain unsettled in international law – permissible grounds, procedural guarantees, and transfer standards. As you flip through the pages of this fascinating book, you will gain a new understanding of where the boundary of unlawful confinement lies between local and international law and why we need a new international legal framework to protect us from arbitrariness in the warring parties’ decision to detain.
This book has won the 2022 Francis Lieber prize, awarded at ASIL, for the best monograph published on the law of armed conflict.
Jelena Plamenac is an international humanitarian lawyer specialised in providing legal advice and building capacity of governments and international organisations to implement and enforce international humanitarian law in their work. For nearly a decade she served at the Office of the Prosecutor of the International Criminal Court and of the International Criminal Tribunal for the former Yugoslavia in The Hague, where she was responsible for legal analysis of international crimes committed in the context of contemporary armed conflicts. Plamenac holds a Ph.D. degree in law from the University of Geneva (Faculty of Law), and an LL.M. from the Geneva Academy of International Humanitarian Law and Human Rights.
This book has won the 2022 Francis Lieber prize, awarded at ASIL, for the best monograph published on the law of armed conflict.
Abbreviations
List of Figures
Introduction
1 The Existing Non-International Armed Conflict Internment “Dilemma”
2 Terminology
3 Analytical Parameters
3.1 The Book’s Aims and Theoretical Approach
3.2 Research Questions
3.3 The Scope of Findings
4 Structure
1 Introducing the Legal Quandary about Internment in Non-International Armed Conflict
1 Formation of International Humanitarian Law Norms
1.1 State-Centric Formation of ihl
1.2 Role of Armed Non-State Actors in the Development of ihl Rules
2 International Legal Framework Applicable to Detention in International Armed Conflict
2.1 International Human Rights Law
2.1.1 Grounds for Internment
2.1.2 Procedural Guarantees Applicable to Internment
2.1.2.1 Notice of Reasons for Detention
2.1.2.2 Judicial Review
2.1.2.3 Access to Third Parties
2.1.3 Exceptions to the ihrl Rules on the Right to Liberty
2.1.4 Detainee Transfers to Third Parties
2.2 ihl Rules on Detention in International Armed Conflict
2.2.1 Internment of Enemy Combatants
2.2.2 Internment of Civilians
2.2.3 Detainee Transfer
2.3 Interplay between ihl and ihrl on Detention in International Armed Conflict
3 International Legal Framework Applicable to Detention in Non-International Armed Conflict
3.1 Power to Detain in Non-International Armed Conflict
3.1.1 ihl Does Not Authorise Warring Parties to Detain
3.1.2 ihl Authorises Warring Parties to Detain
3.1.3 ihl Does Not Prohibit Warring Parties to Detain
3.2 ihl Rules on Detention in Non-International Armed Conflict
3.2.1 Grounds and Procedural Guarantees
3.2.2 Detainee Transfer
3.3 Interplay between ihl and ihrl on Detention in Non-International Armed Conflict
2 Exploring the Legal Approaches to Internment in Armed Conflict
1 Analogical Approach
2 Human-Rights Based Approach
3 Complementary Approach
3 Initiating the Empirical Quest: Methodology
1 The Three Case Studies
1.1 Afghanistan Case Study
1.1.1 Legal Classification of the Situation in Afghanistan
1.1.2 Contextualisation of the Analytical Framework
1.2 Syria Case Study
1.2.1 Legal Classification of the Situation in Syria
1.2.2 Contextualisation of the Analytical Framework
1.3 Ukraine Case Study
1.3.1 Legal Classification of the Situation in Eastern Ukraine
1.3.2 Contextualisation of the Analytical Framework
2 Sources of Conflict-Related Detention Practices
3 Data Collection
3.1 Access
3.1.1 Interviews and Questionnaires
3.1.2 Document Studies/Review
3.1.3 Secondary Data
3.1.4 Ethics
3.1.4 Language
3.1.5 Source Evaluation
4 Data Analysis
5 Limitations
5.1 Research Bias
5.2 Deviations from the Original Sample
5.3 Difficulties throughout Data Collection
4 The Hidden Dimension of States’ Detention in Non-international Armed Conflict
1 Overall Findings on the State Normative Double Negative
1.1 States First Normative Negation
1.2 States Second Normative Negation
2 State Detention Practice in the Afghanistan Armed Conflict
2.1 Afghan Domestic Laws Applicable to Conflict-Related Detentions
2.1.1 Constitutional Guarantees
2.1.2 Grounds and Procedural Guarantees for Conflict-Related Detention under Domestic Criminal Law
2.1.3 Exceptional Legislative Measures for Conflict-Related Deprivation of Liberty
2.1.3.1 Conflict-Related Detention Regime under Presidential Decrees
2.1.3.2 Conflict-Related Regime under Bilateral Agreements with Other State Warring Parties
2.2 Afghanistan Operational Practice
2.2.1 Persons Belonging to Belligerent Party
2.2.2 Persons Not Taking Active Part in the Hostilities
2.3 Internal Laws and Practice of States Deployed Extraterritorially
2.3.1 Detention Standards under the US Military Model
2.3.1.1 Internment under the Enduring Freedom Operation
2.3.1.2 The US Transfer Standards
2.3.2 Detention Standards under the isaf Military Model
2.3.2.1 Internment under the isaf Mission
2.3.2.2 The UK as a Foreign Warring Party with Central Role in the Armed Conflict
2.3.2.3 Transfer Standards Developed by the isaf States
2.4 Detainee Transfers in State Practice
3 State Detention Practice in the Syria Armed Conflict
3.1 Syrian Domestic Laws Applicable to Conflict-Related Detentions
3.1.1 Constitutional Guarantees
3.1.2 Grounds and Procedural Guarantees under Domestic Criminal Law
3.1.3 Exceptional Legal Framework for Internment Prior to the 2011 Non-International Armed Conflict
3.1.4 Exception Legislative Measures in Response to the 2011 Non-International Armed Conflict
3.1.4.1 Grounds for Detention under the Counter-Terrorism Law
3.1.4.2 Procedural Guarantees before the Counter-Terrorism Court
3.2 Syria Operational Practice
3.2.1 Impulsive Phase (2011-mid-2012)
3.2.2 Controlled Phase (mid-2012 – Ongoing)
3.2.2.1 Persons Belonging to the Belligerent Party
3.2.2.2 Persons Not Taking Active Part in the Hostilities
4 State Detention Practice in the Ukraine Armed Conflict
4.1 Ukrainian Domestic Law Applicable to Conflict-Related Internment
4.1.1 Constitutional Guarantees
4.1.2 Grounds and Procedural Guarantees under Domestic Criminal Law
4.1.2.1 Grounds for Conflict-Related Detentions
4.1.2.2 Procedural Guarantees
4.1.3 Exceptional Legislative Measures in Response to Non-International Armed Conflict
4.2 Ukraine Operational Practice
4.2.1 Persons Belonging to a Belligerent Party
4.2.2 Persons Not Taking Active Part in the Hostilities
5 States’ Formal Rejection of Internment in Non-International Armed Conflict
5 The Plurality of Armed Non-State Actors’ Detention in Non-International Armed Conflict
1 Armed Groups’ Lens Look at Detention
1.1 Secular Armed Groups
1.1.1 Kurdish Non-State Armed Actors
1.1.1.1 Conflict-Related Detentions in the Course of Military Operations
1.1.1.2 Conflict-Related Detentions within the Controlled Territory
1.1.2 Syrian Opposition Armed Groups
1.1.3 Armed Groups in Eastern Ukraine
1.1.2.1 The dpr Legislative Measures on Conflict-Related Detentions
(a) “Administrative detention”
(b) “Administrative arrest”
(c) Preventive detention
1.1.2.2 The lpr Legislative Measures on Conflict-Related Detentions
1.2 Anti-Government Jihadist Armed Groups
1.2.1 Islamic Emirate of Afghanistan
1.2.1.1 Code of Conduct
1.2.1.2 Other Normative Measures
1.2.1.3 Structural Regulation of Detention
1.2.1.4 Implementation of the Code of Conduct Rules on Detention of Belligerents
1.2.2 Anti-Government Jihadist Armed Groups in Syria
1.2.2.1 Islamic State of Iraq and al-Sham (isis)
1.2.2.2 Hayat Tahrir al-Sham (hts)
1.2.2.3 Implementation of Internal Norms on Detention of Belligerents
2 Detention of Belligerents by Armed Groups Other Than Anti-Government Jihadists
2.1 Secular Armed Groups
2.2 Pro-Government Faith-Based Armed Groups
2.3 Pro-Government Faith-Based Armed Groups Deployed in Extraterritorial Operations
3 Armed Groups’ Detention of Persons Not Belonging to the Adversary
3.1 Security Detention
3.1.1 Concealment Phase
3.1.2 Exposition Phase
3.2 Disciplinary Detention
3.3 Vindictive Detention
4 Transfer Practices
5 The Problem with Armed Groups’ Regulatory Diversity
6 Objectivising Internment
1 Governance and Detention
1.1 Detention as an Expression of Statehood
1.1.1. Monocentric Detention Regimes
1.1.2 Polycentric Detention Regimes
1.2 Internment as a Means of Maintaining Control Over the Local Population
2 Re-Evaluating the Notion of Unlawful Detention in Non-International Armed Conflict
2.1 Divergence in Conflict-Related Detention Practices of States and Non-State Armed Groups
2.2 Similitude in Conflict-Related Detention Practices of States and Non-State Armed Groups
2.2.1 Detention of Persons Taking Direct Part in the Hostilities
2.2.2 Detention of Persons Not Taking Direct Part in the Hostilities
2.2.2.1 Security Detention
2.2.2.2 Disciplinary Detention
2.2.2.3 Vindictive Detention
2.3 Unpredictable Practice of Detainee Transfers by States and Armed Groups
2.3.1 Recommendations for Conflict-Related Detainee Transfers
2.3.2 Recommendations for Natural Detainee Transfers
3 Proposal for Minimum Legal Standards for Internment of Persons not Taking Direct Part in the Hostilities
3.1 Grounds and Evidentiary Threshold for Internment
3.2 Procedural Guarantees for Internment
3.2.1 Technical Implementation Measures
3.2.2 Notice-Based Procedural Guarantees
3.2.3 Review Procedure
3.2.3.1 Review Body
3.2.3.2 Detainees’ Rights
3.2.3.3 Periodic Review
3.2.4 Access-Based Procedural Guarantees
3.2.5 Communication with the Outside World
4 Conclusion
7 Epilogue The Roadmap to Legislating Unlawful Confinement in Non-International Armed Conflict
1 Summary of Main Findings
2 Contributions
3 Implications
Bibliography
Annex i – Interview Questionnaire
Index
List of Figures
Introduction
1 The Existing Non-International Armed Conflict Internment “Dilemma”
2 Terminology
3 Analytical Parameters
3.1 The Book’s Aims and Theoretical Approach
3.2 Research Questions
3.3 The Scope of Findings
4 Structure
1 Introducing the Legal Quandary about Internment in Non-International Armed Conflict
1 Formation of International Humanitarian Law Norms
1.1 State-Centric Formation of ihl
1.2 Role of Armed Non-State Actors in the Development of ihl Rules
2 International Legal Framework Applicable to Detention in International Armed Conflict
2.1 International Human Rights Law
2.1.1 Grounds for Internment
2.1.2 Procedural Guarantees Applicable to Internment
2.1.2.1 Notice of Reasons for Detention
2.1.2.2 Judicial Review
2.1.2.3 Access to Third Parties
2.1.3 Exceptions to the ihrl Rules on the Right to Liberty
2.1.4 Detainee Transfers to Third Parties
2.2 ihl Rules on Detention in International Armed Conflict
2.2.1 Internment of Enemy Combatants
2.2.2 Internment of Civilians
2.2.3 Detainee Transfer
2.3 Interplay between ihl and ihrl on Detention in International Armed Conflict
3 International Legal Framework Applicable to Detention in Non-International Armed Conflict
3.1 Power to Detain in Non-International Armed Conflict
3.1.1 ihl Does Not Authorise Warring Parties to Detain
3.1.2 ihl Authorises Warring Parties to Detain
3.1.3 ihl Does Not Prohibit Warring Parties to Detain
3.2 ihl Rules on Detention in Non-International Armed Conflict
3.2.1 Grounds and Procedural Guarantees
3.2.2 Detainee Transfer
3.3 Interplay between ihl and ihrl on Detention in Non-International Armed Conflict
2 Exploring the Legal Approaches to Internment in Armed Conflict
1 Analogical Approach
2 Human-Rights Based Approach
3 Complementary Approach
3 Initiating the Empirical Quest: Methodology
1 The Three Case Studies
1.1 Afghanistan Case Study
1.1.1 Legal Classification of the Situation in Afghanistan
1.1.2 Contextualisation of the Analytical Framework
1.2 Syria Case Study
1.2.1 Legal Classification of the Situation in Syria
1.2.2 Contextualisation of the Analytical Framework
1.3 Ukraine Case Study
1.3.1 Legal Classification of the Situation in Eastern Ukraine
1.3.2 Contextualisation of the Analytical Framework
2 Sources of Conflict-Related Detention Practices
3 Data Collection
3.1 Access
3.1.1 Interviews and Questionnaires
3.1.2 Document Studies/Review
3.1.3 Secondary Data
3.1.4 Ethics
3.1.4 Language
3.1.5 Source Evaluation
4 Data Analysis
5 Limitations
5.1 Research Bias
5.2 Deviations from the Original Sample
5.3 Difficulties throughout Data Collection
4 The Hidden Dimension of States’ Detention in Non-international Armed Conflict
1 Overall Findings on the State Normative Double Negative
1.1 States First Normative Negation
1.2 States Second Normative Negation
2 State Detention Practice in the Afghanistan Armed Conflict
2.1 Afghan Domestic Laws Applicable to Conflict-Related Detentions
2.1.1 Constitutional Guarantees
2.1.2 Grounds and Procedural Guarantees for Conflict-Related Detention under Domestic Criminal Law
2.1.3 Exceptional Legislative Measures for Conflict-Related Deprivation of Liberty
2.1.3.1 Conflict-Related Detention Regime under Presidential Decrees
2.1.3.2 Conflict-Related Regime under Bilateral Agreements with Other State Warring Parties
2.2 Afghanistan Operational Practice
2.2.1 Persons Belonging to Belligerent Party
2.2.2 Persons Not Taking Active Part in the Hostilities
2.3 Internal Laws and Practice of States Deployed Extraterritorially
2.3.1 Detention Standards under the US Military Model
2.3.1.1 Internment under the Enduring Freedom Operation
2.3.1.2 The US Transfer Standards
2.3.2 Detention Standards under the isaf Military Model
2.3.2.1 Internment under the isaf Mission
2.3.2.2 The UK as a Foreign Warring Party with Central Role in the Armed Conflict
2.3.2.3 Transfer Standards Developed by the isaf States
2.4 Detainee Transfers in State Practice
3 State Detention Practice in the Syria Armed Conflict
3.1 Syrian Domestic Laws Applicable to Conflict-Related Detentions
3.1.1 Constitutional Guarantees
3.1.2 Grounds and Procedural Guarantees under Domestic Criminal Law
3.1.3 Exceptional Legal Framework for Internment Prior to the 2011 Non-International Armed Conflict
3.1.4 Exception Legislative Measures in Response to the 2011 Non-International Armed Conflict
3.1.4.1 Grounds for Detention under the Counter-Terrorism Law
3.1.4.2 Procedural Guarantees before the Counter-Terrorism Court
3.2 Syria Operational Practice
3.2.1 Impulsive Phase (2011-mid-2012)
3.2.2 Controlled Phase (mid-2012 – Ongoing)
3.2.2.1 Persons Belonging to the Belligerent Party
3.2.2.2 Persons Not Taking Active Part in the Hostilities
4 State Detention Practice in the Ukraine Armed Conflict
4.1 Ukrainian Domestic Law Applicable to Conflict-Related Internment
4.1.1 Constitutional Guarantees
4.1.2 Grounds and Procedural Guarantees under Domestic Criminal Law
4.1.2.1 Grounds for Conflict-Related Detentions
4.1.2.2 Procedural Guarantees
4.1.3 Exceptional Legislative Measures in Response to Non-International Armed Conflict
4.2 Ukraine Operational Practice
4.2.1 Persons Belonging to a Belligerent Party
4.2.2 Persons Not Taking Active Part in the Hostilities
5 States’ Formal Rejection of Internment in Non-International Armed Conflict
5 The Plurality of Armed Non-State Actors’ Detention in Non-International Armed Conflict
1 Armed Groups’ Lens Look at Detention
1.1 Secular Armed Groups
1.1.1 Kurdish Non-State Armed Actors
1.1.1.1 Conflict-Related Detentions in the Course of Military Operations
1.1.1.2 Conflict-Related Detentions within the Controlled Territory
1.1.2 Syrian Opposition Armed Groups
1.1.3 Armed Groups in Eastern Ukraine
1.1.2.1 The dpr Legislative Measures on Conflict-Related Detentions
(a) “Administrative detention”
(b) “Administrative arrest”
(c) Preventive detention
1.1.2.2 The lpr Legislative Measures on Conflict-Related Detentions
1.2 Anti-Government Jihadist Armed Groups
1.2.1 Islamic Emirate of Afghanistan
1.2.1.1 Code of Conduct
1.2.1.2 Other Normative Measures
1.2.1.3 Structural Regulation of Detention
1.2.1.4 Implementation of the Code of Conduct Rules on Detention of Belligerents
1.2.2 Anti-Government Jihadist Armed Groups in Syria
1.2.2.1 Islamic State of Iraq and al-Sham (isis)
1.2.2.2 Hayat Tahrir al-Sham (hts)
1.2.2.3 Implementation of Internal Norms on Detention of Belligerents
2 Detention of Belligerents by Armed Groups Other Than Anti-Government Jihadists
2.1 Secular Armed Groups
2.2 Pro-Government Faith-Based Armed Groups
2.3 Pro-Government Faith-Based Armed Groups Deployed in Extraterritorial Operations
3 Armed Groups’ Detention of Persons Not Belonging to the Adversary
3.1 Security Detention
3.1.1 Concealment Phase
3.1.2 Exposition Phase
3.2 Disciplinary Detention
3.3 Vindictive Detention
4 Transfer Practices
5 The Problem with Armed Groups’ Regulatory Diversity
6 Objectivising Internment
1 Governance and Detention
1.1 Detention as an Expression of Statehood
1.1.1. Monocentric Detention Regimes
1.1.2 Polycentric Detention Regimes
1.2 Internment as a Means of Maintaining Control Over the Local Population
2 Re-Evaluating the Notion of Unlawful Detention in Non-International Armed Conflict
2.1 Divergence in Conflict-Related Detention Practices of States and Non-State Armed Groups
2.2 Similitude in Conflict-Related Detention Practices of States and Non-State Armed Groups
2.2.1 Detention of Persons Taking Direct Part in the Hostilities
2.2.2 Detention of Persons Not Taking Direct Part in the Hostilities
2.2.2.1 Security Detention
2.2.2.2 Disciplinary Detention
2.2.2.3 Vindictive Detention
2.3 Unpredictable Practice of Detainee Transfers by States and Armed Groups
2.3.1 Recommendations for Conflict-Related Detainee Transfers
2.3.2 Recommendations for Natural Detainee Transfers
3 Proposal for Minimum Legal Standards for Internment of Persons not Taking Direct Part in the Hostilities
3.1 Grounds and Evidentiary Threshold for Internment
3.2 Procedural Guarantees for Internment
3.2.1 Technical Implementation Measures
3.2.2 Notice-Based Procedural Guarantees
3.2.3 Review Procedure
3.2.3.1 Review Body
3.2.3.2 Detainees’ Rights
3.2.3.3 Periodic Review
3.2.4 Access-Based Procedural Guarantees
3.2.5 Communication with the Outside World
4 Conclusion
7 Epilogue The Roadmap to Legislating Unlawful Confinement in Non-International Armed Conflict
1 Summary of Main Findings
2 Contributions
3 Implications
Bibliography
Annex i – Interview Questionnaire
Index
The book would be of utmost interest to relevant domestic and international institutions such as international and regional research institutes specialised in international law and policy, academic legal libraries, national and international courts, and international organisations mandated to work on international humanitarian law, human rights and humanitarian assistance in armed conflict. In particular, the book would be highly relevant for legal researchers and practitioners (e.g. legal advisers, trial lawyers, humanitarian staff, and policy makers) specialised in the deprivation of liberty in armed conflict with a focus on strengthening detainee protection and compliance mechanisms.