Detention

Detention is the custodial deprivation of liberty. Detention refers to the deprivation of liberty caused by the act of confining a person in a narrowly bounded place, under the control or with the consent of a State, or, in non-international armed conflicts, a non-State actor. Detainees cannot exercise many of their freedoms, including that of leaving the place of detention at will.  People can be considered as having been detained from the time they are apprehended/held without permission or authority to leave, until their release. Under IHL and human rights law, arbitrary detention – i.e., detention which is not foreseen by law - is prohibited.

Persons detained for reasons related to an international armed conflict benefit from detailed rules, which can be found in Geneva Convention III (devoted to prisoners of war), Geneva Convention IV (which extensively regulates the treatment of civilians interned for security reasons and, more summarily regulates that of protected persons who are awaiting trial or have been sentenced), and Additional Protocol I (in particular for detainees who do not benefit from protected person status).

In comparison to IACs, the treaty law regarding detention in relation to non-international armed conflicts is very limited. For example, the four Geneva Conventions, which are applicable to international armed conflicts, contain more than 175 provisions regulating detention. However, there is no comparable regime for NIACs. In particular, IHL treaty law for NIACs does not stipulate grounds and procedures for detention.

See Civil internees; Detainees; Detaining Power; Indicted or convicted persons; Internment; Prisoners of war;

OUTLINE

CASES

LEGAL SOURCE

places of detention

    GCIII, 97

    GCIII, 108

    GCIV, 83-88

    GCIV, 124

    PII, 5/1(b)

    PII, 5/2

women

    GCIII, 97/4

    GCIII, 108/2

    GCIV, 76/4

    GCIV, 124/3

    PI, 75/5

    PII, 5/2(a)

children

    PI, 77/4

deduction of time in detention pending trial from sentence

    GCIII, 103

    GCIV, 69

    GCIV, 118/4

as disciplinary punishment for POWs

    GCIII, 89/4

    GCIII, 90

    GCIII, 95

    GCIII, 97-98

awaiting trial for POW

    GCIII, 103

of protected persons in occupied territory See internment

    GCIV, 68-69

    GCIV, 76-78

as disciplinary punishment for civil internees

    GC IV, 118-119

awaiting trial for civil internee

    GCIV, 122
 

    GCIV, 124-125

    PI, 75/3

information to be recorded for persons in detention

    PI, 33/2

 BIBLIOGRAPHIC RESOURCES

Suggested readings:

BORELLI Silvia, “Casting Light on the Legal Black Hole: International Law and Detentions Abroad in the ‘War on Terror’”, in IRRC, No. 857, March 2005, pp. 39-68
 
Case Western Reserve Journal of International Law, “Security Detention”, Vol. 40, No. 3, 2009, pp. 315-650
 
FORSYTHE David P., “United States Policy Toward Enemy Detainees in the “War on Terrorism””, in Human Rights Quarterly, Vol. 28, No. 2, May 2006, pp. 465-491
 
GOODMAN Ryan, “The Detention of Civilians in Armed Conflicts”, in AJIL, Vol. 103, No. 1, January 2009, pp. 48-74
 
NAERT Frederik, “Detention in Peace Operations: the Legal Framework and Main Categories of Detainees”, in Revue de droit militaire et de droit de la guerre, Vol. 1-2, No. 45, 2006, pp. 51-78
 
OLSON Laura, “Guantanamo Habeas Review: Are the D.C. District Court’s Decisions Consistent with IHL Internment Standards?”, in Case Western Reserve Journal of International Law, Vol. 42, No. 1 & 2, 2009, pp. 197-243
 
OSWALD Bruce, “The Law on Military Occupation: Answering the Challenges of Detention During Contemporary Peace Operations?”, in MelbourneJournal of International Law, Vol. 8, No. 2, 2007, 16 pp
 
OSWALD Bruce, “The Detention of Civilians in Military Operations: Reasons for and Challenges to Developing a Special Law of Detention”, in Melbourne University Law Review, Vol. 32, 2008, pp. 524-553
 
RODLEY Nigel S., The Treatment of Prisoners under International Law, Oxford, OUP, 3rd ed., 2009, 697 pp
 
TURNS David, “The Treatment of Detainees and the “Global War on Terror”: Selected Legal Issues”, in IYHR, Vol. 38, 2008, pp. 145-167
 
VIERUCCI Luisa, “Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled”, in Journal of International Criminal Justice, Vol. 1, 2003, pp. 284-314
 
WAXMAN Matthew C., “Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists”, in Columbia Law Review, 2008, Vol. 108, pp. 1365-1430
 
Further readings:
 
DROEGE Cordula, “Transfer of Detainees: Legal Framework, Non-Refoulement and Contemporary Challenges”, in IRRC, Vol. 90, No. 871, September 2008, pp. 669-701
 
ICRC, Chatam House, “Expert Meeting on Procedural Safeguards for Security Detention in Non-International Armed Conflict”, in IRRC, Vol. 91, No. 876, December 2009, pp. 859-881
 
LEVIE Howard S., “Legal Aspects of the Continued Detention of the Pakistani Prisoners of War by India”, in AJIL, Vol. 67 (3), 1973, pp. 512-516
 
SADAT Leila Nadya, “International Legal Issues Surrounding the Mistreatment of Iraqi Detainees by American Forces”, in ASIL Insight Newsletter, May-July 2004
 
SASSÒLI Marco & OLSON Laura, “The Relationship Between International Humanitarian and Human Rights Law Where it Matters: Admissible Killing and Internment of Fighters in Non-International Armed Conflicts”, in IRRC, Vol. 90, no. 871, September 2008, pp. 599-627