Rule 99. Deprivation of LibertyRule 99. Arbitrary deprivation of liberty is prohibited.
SummaryState practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. It should be noted that common Article 3 of the Geneva Conventions, as well as both Additional Protocols I and II, require that all civilians and persons hors de combat be treated humanely (see Rule 87), whereas arbitrary deprivation of liberty is not compatible with this requirement.
The concept that detention must not be arbitrary is part of both international humanitarian law and human rights law. Although there are differences between these branches of international law, both international humanitarian law and human rights law aim to prevent arbitrary detention by specifying the grounds for detention based on needs, in particular security needs, and by providing for certain conditions and procedures to prevent disappearance and to supervise the continued need for detention.
International armed conflictsGrounds for detention
Rules on the reasons for which persons may be deprived of their liberty by a party to an international armed conflict are to be found in all four Geneva Conventions:
• The First Geneva Convention regulates the detention or retention of medical and religious personnel.
• The Second Geneva Convention regulates the detention or retention of medical and religious personnel of hospital ships.
• The Third Geneva Convention is based on the long-standing custom that prisoners of war may be interned for the duration of active hostilities. There are additional conditions in the Third Geneva Convention with respect to disciplinary punishments, judicial investigations and repatriation of seriously wounded or sick prisoners of war.
• The Fourth Geneva Convention specifies that a civilian may only be interned or placed in assigned residence if “the security of the Detaining Power makes it absolutely necessary” (Article 42) or, in occupied territory, for “imperative reasons of security” (Article 78). In the Delalić case, the International Criminal Tribunal for the former Yugoslavia interpreted Article 42 as permitting internment only if there are “serious and legitimate reasons” to think that the interned persons may seriously prejudice the security of the detaining power by means such as sabotage or espionage.
The grounds for initial or continued detention have been limited to valid needs, as evidenced by the list above. For example, the detention of “enemy aliens” has been restricted in the Fourth Geneva Convention to those “absolutely necessary” for security purposes, and the Third Geneva Convention requires the repatriation of seriously wounded and sick prisoners of war because they are no longer likely to take part in hostilities against the Detaining Power.
In addition to valid grounds, certain procedures must be followed in order for a deprivation of liberty to be lawful. Article 43 of the Fourth Geneva Convention provides that any person interned or placed in assigned residence is entitled to have such decision reconsidered as soon as possible by an appropriate court or administrative board and if the decision is maintained to have it reviewed periodically, and a least twice yearly. Article 78 of the Fourth Geneva Convention provides that decisions regarding assigned residence or internment in occupied territory must be made according to a regular procedure to be prescribed by the occupying power in accordance with the provisions of the Convention. It also provides that such decision is subject to an appeal to be decided with the least possible delay. If the appeal is upheld it must be subject to periodical review, if possible every six months, by a competent body set up by the occupying power. These procedures are also set forth in a number of military manuals. In addition, the Third Geneva Convention requires the examination of sick or wounded prisoners of war by a Mixed Medical Commission in order to establish whether they should be repatriated or accommodated in neutral countries.
Apart from the specific provisions of Articles 43 and 78 of the Fourth Geneva Convention, the Geneva Conventions provide for the appointment of Protecting Powers to try and prevent arbitrary detention and the ill-treatment that often accompanies such detention. The Protecting Powers must be impartial supervisors who scrutinize the implementation of the Conventions in order to safeguard the interests of the parties to the conflict. In particular, a Detaining Power must immediately inform the Protecting Powers, as well as the Information Bureau and Central Information Agency, of the capture of prisoners of war or the internment of civilians.
Furthermore, Additional Protocol I provides that “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”. This rule is set forth in a number of military manuals.
Detention that is not in conformity with the various rules provided by the Geneva Conventions is referred to as “unlawful confinement”. “Unlawful confinement” of civilians is a grave breach of the Fourth Geneva Convention. “Unlawful confinement” of a person protected under the Geneva Conventions is a grave breach under the Statute of the International Criminal Court, the Statute of the International Criminal Tribunal for the former Yugoslavia and UNTAET Regulation 2000/15 for East Timor. The Elements of Crimes for the International Criminal Court states that unlawful confinement may be in relation to any person protected under one of the Geneva Conventions and not only in relation to civilians.
The military manuals of many States prohibit unlawful confinement. This prohibition is also contained in the legislation of numerous States. The terminology used in these manuals and legislation varies: unlawful/illegal confinement, unlawful/illegal detention, arbitrary detention, unnecessary detention, arrest or deprivation of liberty contrary to international law, unjustified restriction of liberty and indiscriminate mass arrests. The prohibition of unlawful detention was also upheld in several cases after the Second World War.
Non-international armed conflictsGrounds for detention
The prohibition of arbitrary deprivation of liberty in non-international armed conflicts is established by State practice in the form of military manuals, national legislation and official statements, as well as on the basis of international human rights law (see infra). While all States have legislation specifying the grounds on which a person may be detained, more than 70 of them were found to criminalize unlawful deprivation of liberty during armed conflict. Most of this legislation applies the prohibition of unlawful deprivation of liberty to both international and non-international armed conflicts. Several military manuals which are applicable in or have been applied in non-international armed conflicts also prohibit unlawful deprivation of liberty. As indicated above, the terminology used in these manuals and legislation varies from unlawful/illegal confinement and unlawful/illegal detention to arbitrary or unnecessary detention.
No official contrary practice was found with respect to either international or non-international armed conflicts Alleged cases of unlawful deprivation of liberty have been condemned. The UN Security Council, for example, has condemned “arbitrary detention” in the conflicts in Bosnia and Herzegovina and Burundi. Similarly, the UN General Assembly has expressed its deep concern over serious violations of international humanitarian law and of human rights in the former Yugoslavia and Sudan, including “unlawful detention” and “arbitrary detention”. The UN Commission on Human Rights has also condemned “detentions” in the former Yugoslavia and “arbitrary detention” in Sudan in resolutions adopted without a vote.
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the regional human rights treaties recognize the right to liberty and security of person and/or provide that no one may be deprived of his or her liberty except for reasons and under conditions previously provided by law. These principles are also provided for in other international instruments.
The International Covenant on Civil and Political Rights, the Convention on the Rights of the Child and the European and American Conventions on Human Rights provide that no one may be subjected to arbitrary arrest or detention. The European Convention on Human Rights spells out the grounds on which a person may be deprived of his or her liberty. In its General Comment on Article 4 of the International Covenant on Civil and Political Rights (concerning states of emergency), the UN Human Rights Committee stated that States parties may “in no circumstances” invoke a state of emergency “as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … through arbitrary deprivations of liberty”. The prohibition of arbitrary arrest or detention is also set forth in other international instruments.
The need for a valid reason for the deprivation of liberty concerns both the initial reason for such deprivation and the continuation of such deprivation. Detention which continues beyond that provided for by law is a violation of the principle of legality and amounts to arbitrary detention. This point was made by the UN Human Rights Committee and the African Commission on Human and Peoples’ Rights in cases concerning persons who continued to be detained after their prison term was completed, or despite an acquittal, or despite an order for their release.
Since the adoption of the Geneva Conventions, there has been a significant development in international human rights law relating to the procedures required to prevent arbitrary deprivation of liberty. Human rights law establishes (i) an obligation to inform a person who is arrested of the reasons for arrest, (ii) an obligation to bring a person arrested on a criminal charge promptly before a judge, and (iii) an obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention (so-called writ of habeas corpus). Although obligations (i) and (ii) are not listed as non-derogable in the relevant human rights treaties, human rights case-law has held that they may never be dispensed with altogether.
(i) Obligation to inform a person who is arrested of the reasons for arrest. The requirement that persons who are arrested be informed promptly of the reasons therefore is contained in the International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights. While the African Charter on Human and Peoples’ Rights does not explicitly provide for this right, the African Commission on Human and Peoples’ Rights has specified that it is part and parcel of the right to fair trial. This requirement is also provided for in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote. In its General Comment on Article 9 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee held that “if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. … information of the reasons must be given”. This rule is part of the domestic law of most, if not all, States in the world. It was included in the agreements concluded between the parties to the conflicts in the former Yugoslavia.
(ii) Obligation to bring a person arrested on a criminal charge promptly before a judge. The International Covenant on Civil and Political Rights and the European and American Conventions on Human Rights require the prompt appearance of a person who is arrested or detained before a judge or other officer authorized to exercise judicial power.
 While the African Charter on Human and Peoples’ Rights does not explicitly provide for this right, the African Commission on Human and Peoples’ Rights has specified that it is part and parcel of the right to fair trial. This requirement is also provided for in the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the UN Declaration on Enforced Disappearance, both adopted by the UN General Assembly without a vote. This rule is part of the domestic law of most, if not all, States in the world. In its General Comment on Article 9 of the International Covenant on Civil and Political Rights, the UN Human Rights Committee stated that a prompt appearance means that “delays must not exceed a few days”. There is now also significant case-law by regional human rights courts on the application of this principle during states of emergency.
(iii) Obligation to provide a person deprived of liberty with an opportunity to challenge the lawfulness of detention. The International Covenant on Civil and Political Rights and European and American Conventions on Human Rights provide for the right to have the lawfulness of detention reviewed by a court and the release ordered in case it is not lawful (so-called writ of habeas corpus). This right is also provided for in the American Declaration on the Rights and Duties of Man and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote. This rule is part of the domestic law of most, if not all, States in the world. It was included in the Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines.
In its General Comment on Article 4 of the International Covenant on Civil and Political Rights (states of emergency), the UN Human Rights Committee stated that “in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”. In its advisory opinions in the Habeas Corpus case and the Judicial Guarantees case in 1987, the Inter-American Court of Human Rights concluded that the writ of habeas corpus is among those judicial remedies that are “essential” for the protection of various rights whose derogation is prohibited under the American Convention on Human Rights and which is non-derogable in itself as a result.
The African Commission on Human and Peoples’ Rights has held that proceedings to decide on the lawfulness of detention must be brought before a court that is independent of the executive authority that ordered the detention, in particular in emergency-type situations where administrative detention is practiced. The European Court of Human Rights has similarly stressed the requirement that the review of the legality of detention be undertaken by a body which is independent of the executive.
There is, in addition, extensive practice to the effect that persons deprived of their liberty must have access to a lawyer. The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly without a vote, also specifies that “a detained person shall be entitled to have the assistance of a legal counsel”. In particular, the opportunity to challenge the lawfulness of one’s detention requires the assistance of a lawyer, in order to be effective.
It should be noted, however, that all persons deprived of their liberty for reasons related to a non-international armed conflict must be given the opportunity to challenge the legality of the detention unless the government of the State affected by the non-international armed conflict claimed for itself belligerent rights, in which case captured enemy “combatants” should benefit from the same treatment as granted to prisoners of war in international armed conflicts and detained civilians should benefit from the same treatment as granted to civilian persons protected by the Fourth Geneva Convention in international armed conflicts.