Note: This chapter addresses the treatment of persons deprived of their liberty for reasons related to armed conflict, whether international or non-international. With regard to international armed conflicts, this term includes combatants who have fallen into the hands of the adverse party, civilian internees and security detainees. With regard to non-international armed conflicts, it includes persons who have taken a direct part in hostilities and who have fallen into the power of the adverse party, as well as those detained on criminal charges or for security reasons, provided that a link exists between the situation of armed conflict and the deprivation of liberty. The term “detainees” as used in this chapter covers all persons thus deprived of their liberty.
Rule 118. Persons deprived of their liberty must be provided with adequate food, water, clothing, shelter and medical attention.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts.
The rule according to which prisoners of war must be provided with adequate food and clothing is a long-standing rule of customary international law already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual.[1] It was codified in the Hague Regulations and is now dealt with in detail by the Third Geneva Convention.[2] Under the Fourth Geneva Convention, this rule is also applicable to civilians deprived of their liberty in connection with an international armed conflict.[3]
The rule requiring provision for the basic needs of persons deprived of their liberty is set forth in numerous military manuals.[4] Violation of this rule is an offence under the legislation of many States.[5] This rule is also supported by official statements and other practice.[6]
In a resolution on the protection of prisoners of war adopted in 1969, the 21st International Conference of the Red Cross recognized that, irrespective of the Third Geneva Convention, “the international community has consistently demanded humane treatment for prisoners of war, including … provision of an adequate diet and medical care”.[7]
Specific treaty law with respect to the provision of detainees’ basic needs in non-international armed conflicts is contained in Additional Protocol II.[8] In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.[9] The Standard Minimum Rules for the Treatment of Prisoners provides detailed provisions concerning accommodation, hygiene, clothing, bedding and food.[10]
Several military manuals which are applicable in or have been applied in non-international armed conflicts contain this rule.[11] Violation of this rule is an offence under the legislation of a number of States.[12] This rule is also supported by official statements and other practice in the context of non-international armed conflicts.[13]
The rule that persons deprived of their liberty must be provided with their basic needs is supported by practice of the United Nations. For example, in 1992, the UN Security Council demanded that all detainees in camps, prisons and detention centres in Bosnia and Herzegovina “receive humane treatment, including adequate food, shelter and medical care”.[14] In addition, the Code of Conduct for Law Enforcement Officials and the Basic Principles for the Treatment of Prisoners, adopted by the UN General Assembly without a vote in 1979 and 1990 respectively, require, in particular, that prisoners’ health be protected.[15] It should be noted that lack of adequate food, water or medical treatment for detained persons amounts to inhuman treatment (see commentary to Rule 90). In the Aleksovski case in 1999, the International Criminal Tribunal for the former Yugoslavia took into consideration the quality of the shelter, food and medical care allotted to each detainee in determining whether the accused had treated detainees inhumanely.[16]
No official contrary practice was found with respect to either international or non-international armed conflicts.
Practice indicates that provision for the basic needs of persons deprived of their liberty has to be adequate, taking into account the means available and the local conditions. Additional Protocol II states that provision of basic needs is required “to the same extent as the local civilian population”.[17]
In the Aleksovski case, the International Criminal Tribunal for the former Yugoslavia considered that the relative lack of food was the result of shortages caused by the war and affected everyone and that the medical care would probably have been considered insufficient in ordinary times, but that the detainees in question did receive available medical care.[18]
According to practice, if the detaining power is unable to provide for the basic needs of detainees, it must allow humanitarian agencies to provide assistance in their stead and detainees have a right to receive individual or collective relief in such a context. The right to receive relief shipments is recognized in the Third and Fourth Geneva Conventions and in Additional Protocol II.[19] This interpretation is also supported by military manuals, national legislation and a report by the Inter-American Commission on Human Rights.[20] This practice is further supported by the practice cited in the commentaries to Rules 53 and 55 on starvation and access to humanitarian relief.
[1] Lieber Code, Article 76 (cited in Vol. II, Ch. 37, § 9); Brussels Declaration, Article 27 (ibid., § 10); Oxford Manual, Article 69 (ibid., § 11).
[2] Hague Regulations, Article 7 (ibid., § 1); Third Geneva Convention, Articles 25–32 (ibid., § 3) and Article 125 (ibid., § 5).
[3] Fourth Geneva Convention, Articles 76, 85, 87 and 89–92 (ibid., § 4) and Article 142 (ibid., § 5).
[4] See, e.g., the military manuals of Argentina (ibid., §§ 19–20), Australia (ibid., §§ 21–22), Benin (ibid., § 23), Cameroon (ibid., § 24), Canada (ibid., §§ 26–27), Colombia (ibid., §§ 28–29), Dominican Republic (ibid., § 31), Ecuador (ibid., § 32), France (ibid., §§ 34–35), Germany (ibid., § 36), Hungary (ibid., § 37), Israel (ibid., § 38), Italy (ibid., § 39), Kenya (ibid., § 40), Madagascar (ibid., § 41), Mali (ibid., § 42), Netherlands (ibid., §§ 43–44), New Zealand (ibid., § 45), Nicaragua (ibid., § 46), Nigeria (ibid., § 47), Philippines (ibid., § 48), Romania (ibid., § 49), Senegal (ibid., § 50), Spain (ibid., § 51), Switzerland (ibid., § 52), Togo (ibid., § 53), United Kingdom (ibid., §§ 54–55) and United States (ibid., §§ 56–59).
[5] See, e.g., the legislation of Australia (ibid., § 61), Azerbaijan (ibid., § 62), Bangladesh (ibid., § 63), Chile (ibid., § 64), Dominican Republic (ibid., § 65), Ireland (ibid., § 66), Mexico (ibid., § 67), Nicaragua (ibid., § 68), Norway (ibid., § 69), Peru (ibid., § 70), Rwanda (ibid., § 71), Spain (ibid., § 72) and Uruguay (ibid., § 73); see also the draft legislation of Argentina (ibid., § 60).
[6] See, e.g., the statement of the United States (ibid., § 79) and the practice of Azerbaijan (ibid., § 76) and United States (ibid., § 79).
[7] 21st International Conference of the Red Cross, Res. XI (ibid., § 88).
[8] Additional Protocol II, Article 5(1) (adopted by consensus) (ibid., § 8).
[9] See, e.g., Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law in the Philippines, Part IV, Article 4(6) (ibid., § 17); UN Secretary-General’s Bulletin, Section 8(c) (ibid., § 18).
[10] Standard Minimum Rules for the Treatment of Prisoners, Rules 9–20 (ibid., § 12).
[11] See, e.g., the military manuals of Australia (ibid., § 22), Benin (ibid., § 23), Cameroon (ibid., § 24), Canada (ibid., §§ 26–27), Colombia (ibid., §§ 28–29), Ecuador (ibid., § 32), Germany (ibid., § 36), Hungary (ibid., § 37), Italy (ibid., § 39), Kenya (ibid., § 40), Madagascar (ibid., § 41), New Zealand (ibid., § 45), Nicaragua (ibid., § 46), Philippines (ibid., § 48), Senegal (ibid., § 50) and Togo (ibid., § 53).
[12] See, e.g., the legislation of Azerbaijan (ibid., § 62), Nicaragua (ibid., § 68) and Spain (ibid., § 72); see also the legislation of Peru (ibid., § 70) and Uruguay (ibid., § 73), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 60).
[13] See, e.g., the statement of Yugoslavia (ibid., § 82), the practice of the Philippines (ibid., § 78) and the reported practice of Malaysia (ibid., § 77) and United States (ibid., § 81).
[14] UN Security Council, Res. 770 (ibid., § 86).
[15] Code of Conduct for Law Enforcement Officials, Article 6 (ibid., § 14); Basic Principles for the Treatment of Prisoners, § 9 (ibid., § 16).
[16] ICTY, Aleksovski case, Judgment (ibid., § 90).
[17] Additional Protocol II, Article 5(1)(b) (adopted by consensus).
[18] ICTY, Aleksovski case, Judgment (cited in Vol. II, Ch. 37, § 90).
[19] Third Geneva Convention, Articles 72–73 (ibid., § 4); Fourth Geneva Convention, Articles 76 and 108–109 (ibid., § 4); Additional Protocol II, Article 5(1)(c) (adopted by consensus) (ibid., § 8).
[20] See, e.g., the military manuals of Benin (ibid., § 23), Cameroon (ibid., § 24), Croatia (ibid., § 30), Israel (ibid., § 38), Netherlands (ibid., § 43), New Zealand (ibid., § 45), Nigeria (ibid., § 47), Senegal (ibid., § 50), Spain (ibid., § 51), Switzerland (ibid., § 52), Togo (ibid., § 53), United Kingdom (ibid., § 54) and United States (ibid., §§ 56 and 58); the legislation of Azerbaijan (ibid., § 62), Bangladesh (ibid., § 63), Ireland (ibid., § 66) and Norway (ibid., § 69); Inter-American Commission on Human Rights, Report on the Situation of Human Rights in Peru (ibid., § 93).