International Humanitarian Law
Certain provisions of international humanitarian law instruments
also address the manner in which the liberty of individuals may be
restricted and regulated. In the case of international armed conflicts
in particular, both the Third and Fourth Geneva Conventions of 1949
contain extensive and specialized provisions addressing the
circumstances under which prisoners of war and civilians may be interned
or detained and the manner in which their internment or detention must
With regard to prisoners of war, Articles 21, 118 and 119 of the Third
Geneva Convention permit the internment of prisoners of war until their
repatriation at the “cessation of active hostilities” or the
completion of any criminal proceedings or punishment for an indictable
offense that may be pending against a prisoner of war.
In addition, the detailed provisions under Articles 17 to 117 of the
Third Geneva Convention regulate the conditions of internment. Prisoners
of war are not by reason of that status considered to be criminals and,
accordingly, their internment should not constitute a form of
Prisoners of war may, however, also be confined while awaiting trial for
crimes for which they may properly be prosecuted if a member of the
armed forces of the Detaining Power would be so confined if he were
accused of a similar offense or if it is essential in the interests of
national security and then only for a maximum period of three months.
Similarly, a prisoner of war may be confined for offenses against
discipline if a member of the armed forces of the Detaining Power would
be so confined if he were accused of a similar offense or if it is
essential in the interests of camp order or discipline and then only for
a maximum period of 14 days.
It should be noted in this connection that prisoner of war status
applies only in situations of international armed conflict and those
categories of armed conflict prescribed in Article 1(4) of
Additional Protocol I, and that in cases of doubt in the course
of an international armed conflict as to an individual’s
classification as a prisoner of war, he or she shall enjoy the
protection afforded to prisoners of war until such time as his or her
status has been determined by a competent tribunal pursuant to Article 5
of the Third Geneva Convention.
Articles 42, 43 and 78 of the Fourth Geneva Convention, which
apply to enemy aliens within the territory of a party to an
international armed conflict or protected persons in occupied
territories, permit the internment or placing in assigned residence of
such protected persons only if the security of the Detaining or
Occupying Power makes it absolutely necessary. These provisions also
mandate that any person so interned or placed in assigned residence
shall have the right to have such action reconsidered or appealed with
the least possible delay and, if it is continued, subject to periodic
review, by an appropriate
or competent body, court or administrative tribunal designated for that
With regard to persons who are in the power of a party to an
international armed conflict and who do not benefit from more favorable
treatment under the Conventions or under Additional Protocol I,
including, for example, combatants who are not covered by Article 4 of
the Third Convention and other persons who are denied prisoner-of-war
Article 75(3), (5) and (6) of Additional Protocol I provides as follows:
Any person arrested, detained or interned for actions related to the
armed conflict shall be informed promptly, in a language he understands,
of the reasons why these measures have been taken. Except in cases of
arrest or detention for penal offences, such persons shall be released
with the minimum delay possible and in any event as soon as the
circumstances justifying the arrest, detention or internment have ceased
Women whose liberty has been restricted for reasons related to the armed
conflict shall be held in quarters separated from men’s quarters. They
shall be under the immediate supervision of women. Nevertheless, in
cases where families are detained or interned, they shall, whenever
possible, be held in the same place and accommodated as family units.
Persons who are arrested, detained or interned for reasons related to
the armed conflict shall enjoy the protection provided by this article
until their final release, repatriation or re-establishment, even after
the end of the armed conflict.
It is also worth emphasizing that these provisions, as with all
fundamental protections under international humanitarian law, cannot be
the subject of derogation.
Similar to the rules governing international human rights law,
relevant provisions of humanitarian law regulating international armed
conflicts provide for specific mechanisms by which detailed information
concerning prisoners of war is to be gathered and provided to states
concerned and next of kin, and which oblige detaining Powers to
facilitate the provision of information to these mechanisms.
Also, as indicated in Part II(C), the detention of victims of armed
conflict may be the subject of supervision by the International
Committee of the Red Cross and, where established for the purposes of a
specific international armed conflict, the Protecting Powers regime
contemplated by the 1949 Geneva Conventions.
International humanitarian law applicable to non-international
armed conflicts similarly does not prohibit the capture and detention of
take an active part in hostilities, but prohibits the detention or
internment of civilians except where necessary for imperative reasons of
Where circumstances justifying the detention of combatants or civilians
exist, common Article 3 and Articles 4 and 5 of Additional Protocol II
subject the treatment of persons deprived of their liberty for reasons
related to the armed conflict to minimum standards of humane treatment
As noted previously, the conduct of states in situations of
terrorism is at all times subject to the requirements of international
human rights law, and may concurrently be the subject of the rules of
international humanitarian law where the conditions for the application
of that law may exist.
The right to personal liberty and security, to the extent that it
is addressed by these two regimes of international law, may give rise to
varying requirements as to when a person may be detained, for what
duration, and subject to what supervisory mechanisms; in all
circumstances, however, such requirements must conform to and be
continuously evaluated in accordance with the fundamental principles of
necessity, proportionality, humanity and non-discrimination.
In circumstances not involving a state of emergency as strictly
defined under applicable human rights instruments, states are fully
bound by the restrictions and limitations under international human
rights law governing deprivations of personal liberty. These include the
rights of persons:
Subject to the discussion below concerning the particular
circumstances of armed conflicts, should a terrorist situation within a
state’s jurisdiction be of such nature or degree as to give rise to an
emergency that threatens a state’s independence or security, that
state is nevertheless precluded from suspending certain fundamental
aspects of the right to liberty and personal integrity which are
considered necessary for the protection of non-derogable rights or which
are non-derogable under the state’s other international obligations.
These include the requirement that the grounds and procedures for the
detention be prescribed by law, the right to be informed of the reasons
for the detention, prompt access to legal counsel, family and, where
necessary or applicable, medical and consular assistance, prescribed
limits upon the length of prolonged detention, and maintenance of a
central registry of detainees. These protections are also considered to
include appropriate judicial review mechanisms to supervise detentions,
promptly upon arrest or detention and at reasonable intervals when
detention is extended.
Other aspects of the right to liberty and personal security may
potentially be suspended, subject to the rules and principles governing
derogation as described in Part II(B). This may include in particular
the requirement that an individual be tried within a reasonable time or
released. A state might, for example, be justified in subjecting
individuals to periods of preventative or administrative detention for a
period longer than would be permissible under ordinary circumstances,
where their extended detention is demonstrated to be strictly necessary
by reason of the emergency situation.
Any such detention must, however, continue for only such period as is
necessitated by the situation and remain subject to the non-derogable
protections described above, including continued judicial oversight
through periodic review.
As indicated in Part II(C), in armed conflict situations,
consideration must be given to international humanitarian law rules and
principles as the applicable lex
specialis in interpreting and applying the protections under
international human rights instruments, including the right to personal
liberty and security, with due regard to the overarching principles of
necessity, proportionality, humanity and non-discrimination.
In this respect, there are several characteristics particular to the
manner in which international humanitarian law regulates the
justifications for and conditions of deprivations of liberty that must
inform an analysis of the state’s compliance with its international
human rights obligations in armed conflict situations. The significant
implications that international humanitarian law may have for a
person’s right to personal liberty and security, particularly that of
a lawful or unlawful combatant, also highlights the importance of
ensuring that a fair procedure exists for determining the status of
individuals taken into custody by a state in order to ensure that they
are afforded the international protections to which they are entitled.
One of the principal factors to be taken into account in
evaluating compliance with the right to liberty in the context of armed
conflicts is the justification under international humanitarian law for
detaining persons in times of war. In particular, international
humanitarian law permits the internment of combatants by a party to the
conflict as a fundamental component of achieving the party’s military
objectives, namely to prevent the opposing party from benefiting from
the continued participation of members of their forces who have laid
down their arms or those placed hors de combat by sickness,
wounds, detention or any other cause.
As discussed above, international humanitarian law also generally
permits the internment of combatants to continue until their
repatriation at the cessation of active hostilities. By reason of these
particular and more specific international legal principles underlying
the detention of combatants in armed conflict, therefore, applicable
international law should not be considered to provide for any
entitlement on the part of detained combatants to be informed of the
reasons for their detention, to challenge the legality of their
detention, or, in the absence of disciplinary or criminal proceedings,
to be provided with access to legal counsel.
Conversely, as noted previously, international humanitarian law
generally permits the administrative detention or internment of
civilians and others who have not taken any active part in hostilities
only under exceptional circumstances. In particular, such detention may
only be undertaken pursuant to specific provisions, and may be
authorized only when imperative concerns of security require it, when
less restrictive measure could not accomplish the objective sought, and
when the action is taken in compliance with the grounds and procedures
established in pre-existing law.
The applicable rules of international humanitarian law relative to the
detention of civilians also require that any detention be made pursuant
to a "regular procedure," which shall include the right of the
detainee to be heard and to appeal the decision, and any continuation of
the detention must be subject to regular review.
The particular requirements of the review process may vary depending
upon the circumstances of a particular case, including, for example the
capabilities of the detainee. In all instances, however, minimum
standards of human rights law require that detention review proceedings
comply with the rules of procedural fairness. These rules include the
requirements that the decision-maker meets prevailing standards of
impartiality, that the detainee is given an opportunity to present
evidence and to know and meet the claims of the opposing party, and that
the detainee be given an opportunity to be represented by counsel or
It should be emphasized that even where armed hostilities may occur over
a prolonged period, this factor alone cannot justify the extended
detention or internment of civilians; their detention is only justified
as long as security concerns strictly require it.
As to the conditions under which deprivations of liberty may be
effected, international humanitarian law recognizes that the
apprehension of persons in armed conflict circumstances may occur in the
heat of battle, in or near to the theatre of combat or in similar
hazardous situations. Partly as a consequence, international
humanitarian law applicable to international armed conflicts provides
for a series of assumptions and decision-making mechanisms in order to
determine the status and corresponding rights and obligations of
individuals captured during an armed conflict, including their
susceptibility to detention or internment. In respect of persons who
have committed belligerent acts and have fallen into the hands of the
enemy and whose status as a prisoner of war is in doubt, for example,
Article 5 of the Third Geneva Convention, as further elaborated upon by
Article 45 of Additional Protocol I,
establishes a presumption of application of the protection of the
Convention to such persons until such time as their status is determined
by a “competent tribunal.” While the features of a competent
tribunal in turn may necessarily be affected by such exigencies as
proximity to the frontline, past practice has indicated that such
tribunals may be administrative in nature, which may include military
commissions, and should be composed of qualified officers.
145. This in turn suggests that, in circumstances where terrorist acts may trigger or otherwise occur during an international armed conflict, a state’s compliance with the liberty rights of persons detained in the course of the conflict must be evaluated in light of the particular presumptions and mechanisms prescribed under international humanitarian law. Where the detainee is not a combatant or where there is a doubt as to his or her status, the law of armed conflict requires review of the person’s status and, accordingly, his or her susceptibility to and conditions of detention or internment.
Notwithstanding these specific rules and mechanisms governing the
detention of persons in situations of armed conflict, there may be
circumstances in which the continued existence of active hostilities
becomes uncertain, or where a belligerent occupation continues over a
prolonged period of time. Where this occurs, the regulations and
procedures under international humanitarian law may prove inadequate to
properly safeguard the minimum human rights standards of detainees.
The Commission recognizes that situations of this nature are not clearly
addressed by existing international law. Nevertheless, in the
Commission’s view the paramount consideration must at all times remain
the effective protection pursuant to the rule of law of the fundamental
rights of detainees, including the right to liberty and the right to
Accordingly, where detainees find themselves in uncertain or protracted
situations of armed conflict or occupation, the Commission considers
that the supervisory mechanisms as well as judicial guarantees under
international human rights law and domestic law, including habeas
corpus and amparo remedies, may necessarily supercede international
humanitarian law where this is necessary to safeguard the fundamental
rights of those detainees.
In the regime of international humanitarian law, internment must be
distinguished from detention. As explained by the International
Committee of the Red Cross:
intern a person is to put him in a certain area or place–in the case
of prisoners of war, usually a camp–and to forbid him to leave its
limits. The concept of internment should not be confused with that of
detention. Internment involves the obligation not to leave the town,
village, or piece of land, whether or not fenced in, on which the camp
installations are situated, but it does not necessarily mean that a
prisoner of war may be confined to a cell or a room. Such confinement
may only be imposed in execution of penal or disciplinary sanctions,
for which express provision is made in Section VI, Chapter III [of the
Third Geneva Convention] [. . .].
Commentary on the Third Geneva Convention Relative to the Treatment of
Prisoners of War
(ICRC, Jean S. Pictet, ed., 1960), p. 178 [hereinafter ICRC Commentary
on the Third Geneva Convention].
Article 119(5) of the Third Geneva Convention provides in this regard
that “[p]risoners of war against whom criminal proceedings for an
indictable offense are pending may be detained until the end of such
proceedings, and, if necessary, until the completion of the
punishment. The same shall apply to prisoners of war already convicted
of an indictable offense.”
See, e.g., Third Geneva Convention, supra note 67,
Article 21 (“[. . .] Subject to the provisions of the present
Convention relative to penal and disciplinary sanctions, prisoners of
war may not be held in close confinement except where necessary to
safeguard their health and then only during the continuation of the
circumstances which make such confinement necessary”).
Third Geneva Convention, supra note
67, Article 103.
Third Geneva Convention, supra note
67, Article 95.
Third Geneva Convention, supra note
67, Articles 4, 5. See also
Additional Protocol I, supra
note 68, Article 45, with respect to States parties to that
ICRC Commentary on the
Additional Protocols, supra
note 210, at 869-870.
See, e.g., supra
Part II(C), para. 78.
See, e.g., Third Geneva
Convention, supra note 67,
Articles 122, 123 (providing for the transmission to Powers at issue
through an official Information Bureau and Central Prisoners of War
Information Agency information concerning prisoners of war, including
their surname, first names, place and full date of birth, name and
address of person to be informed and the address to which
correspondence for the prisoner may be sent).
See supra Part II(B), para.
71, citing Article 3 common to the 1949 Geneva Conventions; Third
Geneva Convention, supra
note 67, Articles 8, 9.
See IACHR Report on
Colombia (1999), supra note
110, Ch. IV, para. 122.
For discussions of these principles under international human rights
and humanitarian law, see supra
Part II(A), para. 51, Part II(C), paras. 65-66.
Respect for the right to personal liberty and security in the context
of migrant workers, asylum-seekers, refugees and other non-nationals
is discussed in further detail in Part III(H), below.
See, e.g., Eur. Court H.R.,
Lawless v. Republic of Ireland (Nº 3), 1 July 1961 (Nº 3), 1 E.H.R.R.
15, paras. 36, 37.
See supra Part II(C), paras.
See supra Part II(C), para.
74. See also IACHR,
Precautionary Measures Requested in Respect of the Detainees in
Guantanamo Bay, Cuba (United States), March 12, 2002.
According to the ICRC, “prisoners of war are in the power of the
State which has captured them. This power is based on force, and the
first concern of the captor is to maintain it by resisting any escape
or attempted escape by prisoners.” ICRC Commentary
on the Third Geneva Convention, supra
note 350, at 178. See similarly
The Handbook of Humanitarian
Law in Armed Conflicts (D. Fleck, ed. 1995), at 326 (indicating
that the “purpose of captivity is to exclude enemy soldiers from
further military operations. Since soldiers are permitted to
participate in lawful military operations, prisoners of war shall only
be considered as captives detained for reasons of security, not as
criminals […] Taking an enemy combatant prisoner can therefore never
serve as a punishment but only to prevent further participation in
military operations against the detaining power. Because of this
fundamental perception of lawful operations during an armed conflict,
the internment of prisoners of war must differ from that of
Coard et al. Case, supra
note 73, paras. 52, 53, 54. See
also Additional Protocol I, supra
note 68, Article 75(3).
Coard et al. Case, supra
note 73, paras. 52, 53, 54.
Ferrer-Mazorra et al. Case,
supra note 114, para. 213. See
similarly Eur. Court H.R., Brannigan v. United Kingdom, May 26,
1993, Ser. A 258-B, para. 58.
In the context of Article 42 of the Fourth Geneva Convention
concerning the internment of aliens in the territory of a party to an
international armed conflict, the ICRC has observed that the
Convention stresses “the exceptional character of internment and
assigned residence by making their application subject to strict
conditions; its object in doing this is to put an end to an abuse
which occurred during the Second World War. All too often the mere
fact of being an enemy subject was regarded as justifying internment.
Henceforward only absolute necessity, based upon the requirements of
state security, can justify recourse to these two measures, and only
then if security cannot be safeguarded by other, less severe means.
All considerations not on this basis are strictly excluded.” ICRC,
Commentary on the Fourth Geneva Convention of 12 August 1949 (ICRC, Jean
S. Pictet, ed., 1960) (hereinafter
ICRC Commentary on the Fourth Geneva Convention], supra
See ICRC Commentary on
the Additional Protocols, supra
note 210, at 551-552 and N. 29, citing, inter alia, W.H. Parks,
The Law of War Adviser, 31 The
JAG Journal, Nº 1, Summer, 1980, p. 14 (indicating that during
the conflict in Vietnam the United States delegated the task of the
classification of captives to tribunals consisting of three officers,
and that in general it was considered that those who pronounced
judgment on the conduct of members of the armed forces should be
qualified and, for example, that only officers of at least equal rank
could judge the conduct of an equal commanding officer).
With respect to the repatriation of prisoners of war following the
Korean War, for example, the ICRC has observed that “[t]he
International Committee of the Red Cross had access to the camps set
up by the United Nations, but was never in a position to make similar
verifications in North Korea. The Protecting Powers never took up
their duties, on either side. Moreover, the prisoners of war were
never able to correspond with their families or to receive parcels
from them. Thus, the essential provisions of the Convention were not
applied and the application of Article 118 was considerably affected
thereby. The Convention constitutes a whole and if some of its
essential provisions are neglected, the whole of it is jeopardized.”
See, e.g., ICRC
Commentary on the Third Geneva Convention, supra note
350, at 546.
The need to ensure that the fundamental rights of individuals are
protected in all circumstances is similarly reflected in the Turku
Declaration of Minimum Humanitarian Standards of December 2, 1990, by
which a group of individual experts in humanitarian and human rights
law affirmed minimum humanitarian standards applicable in all
situations, including internal violence, disturbances, tensions, and
public emergency. These include minimum protections concerning persons
in detention prescribed under Article 4 of the Declaration. See
also Meron, The Humanization of Humanitarian Law, supra
note 189, at 273-275.
Some publicists have similarly posited that, where international
humanitarian law proves inadequate to address certain situations such
as prolonged military occupations, the applicable human rights
protections should be invoked to fill the void. See, e.g.,
Meron, The Humanization of Humanitarian Law, supra note 189, at
266, citing Adam Roberts, Prolonged Military Occupation: The
Israeli-Occupied Territories Since 1967, 84 Am.
J. Int’l L. 70-74 (1990). In the Commission’s view, the
purposes underlying this proposition would apply not only to the
substantive protections under international human rights law, but also
to the supervising mechanisms by which those substantive provisions
are given effect.