Rule 124. ICRC Access to Persons Deprived of Their Liberty
Rule 124.A. In international armed conflicts, the ICRC must be granted regular access to all persons deprived of their liberty in order to verify the conditions of their detention and to restore contacts between those persons and their families.B. In non-international armed conflicts, the ICRC may offer its services to the parties to the conflict with a view to visiting all persons deprived of their liberty for reasons related to the conflict in order to verify the conditions of their detention and to restore contacts between those persons and their families.
Volume II, Chapter 37, Section G.
State practice establishes these rules as norms of customary international law applicable in international and non-international armed conflicts respectively.
The right of the ICRC to visit detainees in international armed conflicts is provided for in the Third and Fourth Geneva Conventions.[1] According to these provisions, the ICRC has full liberty to select the places it wishes to visit and must be able to interview the detainees without witnesses. The duration and frequency of such visits may not be restricted. However, according to the Third Geneva Convention, visits may be refused for reasons of imperative military necessity, but only as an exceptional and temporary measure.[2] The right of the ICRC to visit persons deprived of their liberty is also recognized in other treaties and instruments.[3]
Numerous military manuals recognize the right of the ICRC to visit detainees.[4] This right is supported by official statements and other practice.[5] It is also confirmed by the numerous visits to prisoners of war, civilian internees and security detainees carried out regularly by the ICRC in countries affected by international armed conflict all over the world.
In 1981, in a resolution on humanitarian activities of the ICRC for the benefit of victims of armed conflicts, the 24th International Conference of the Red Cross deplored the fact that “the ICRC is refused access to the captured combatants and detained civilians in the armed conflicts of Western Sahara, Ogaden and later on Afghanistan”.[6]
There is no specific treaty provision requiring access by the ICRC to detainees in non-international armed conflicts. However, on the basis of common Article 3 of the Geneva Conventions, the ICRC may “offer its services” to the parties to the conflict.[7] According to the Statutes of the International Red Cross and Red Crescent Movement, adopted by consensus in 1986 by the 25th International Conference of the Red Cross, it is the role of the ICRC
to endeavour at all times – as a neutral institution whose humanitarian work is carried out particularly in time of international and other armed conflicts or internal strife – to ensure the protection of and assistance to military and civilian victims of such events and of their direct results.[8]
On this basis, the ICRC systematically requests access to persons deprived of their liberty in connection with non-international armed conflicts, and such access is generally granted, for example, in relation to the conflicts in Algeria, Afghanistan, Chechnya, El Salvador, Nicaragua, Nigeria, Rwanda and Yemen.[9] Conditions are often laid down in formal agreements, such as the agreements concluded in the context of the conflicts in the former Yugoslavia and the Ashgabat Protocol on Prisoner Exchange in Tajikistan.[10] There are also numerous examples of armed opposition groups and separatist entities according the ICRC access to persons held in detention.[11]
The UN Security Council, UN General Assembly and UN Commission on Human Rights, as well as the European Parliament and the Organization for Security and Cooperation in Europe, have requested ICRC access to detainees in the context of several non-international armed conflicts, in particular in Afghanistan, Chechnya, Rwanda, Tajikistan and the former Yugoslavia.[12] In 1995, the UN Security Council condemned “in the strongest possible terms” the failure of the Bosnian Serb party to comply with its commitment in respect of access to detainees.[13]
In a resolution adopted in 1986, the 25th International Conference of the Red Cross appealed to the parties involved in armed conflicts “to grant regular access to the ICRC to all prisoners in armed conflicts covered by international humanitarian law”.[14]
The purpose of ICRC visits is to implement other existing rules of customary international law, including the prevention of enforced disappearances, extra-judicial executions, torture and other cruel, inhuman or degrading treatment or punishment, monitoring the standard of detention conditions and the restoration of family links through the exchange of Red Cross messages.
It can therefore be concluded that an ICRC offer to visit persons deprived of their liberty in the context of a non-international armed conflict must be examined in good faith and may not be refused arbitrarily.[15]
When granted access to detainees, the ICRC visits them in accordance with a number of established operational principles. The standard terms and conditions under which the ICRC conducts visits include:
•access to all persons deprived of their liberty for reasons related to armed conflict, at all stages of their detention and in all places where they are held;
•the possibility of talking freely and in private with the detainees of its choice;
•the possibility of registering the identity of the persons deprived of their liberty;
•the possibility of repeating its visits on a regular basis;
•authorization to inform the family of the detention of a relative and to ensure the exchange of news between persons deprived of their liberty and their families, whenever necessary.[16]
These operational principles are the result of the ICRC’s long-standing practice in this field and aim to attain the humanitarian objectives of those visits. The ICRC considers these principles as essential conditions for its visits both in international armed conflicts (where some of these conditions are explicitly set forth in the Geneva Conventions) and in non-international armed conflicts.
[1] Third Geneva Convention, Article 126 (cited in Vol. II, Ch. 37, § 351); Fourth Geneva Convention, Article 76, sixth paragraph, and Article 143 (ibid., § 351).
[2] Third Geneva Convention, Article 126 (ibid., § 351).
[3] Agreement on the Military Aspects of the Peace Settlement annexed to the Dayton Accords, Article IX (ibid., § 356); UN Secretary-General’s Bulletin, Section 8(g) (ibid., § 365).
[4] See, e.g., the military manuals of Argentina (ibid., § 366), Belgium (ibid., § 367), Benin (ibid., § 368), Canada (ibid., § 369), Ecuador (ibid., § 370), El Salvador (ibid., § 371), Israel (ibid., § 372), Madagascar (ibid., § 373), New Zealand (ibid., § 374), Spain (ibid., § 375), Sweden (ibid., § 376), Switzerland (ibid., § 377), Togo (ibid., § 378), United Kingdom (ibid., §§ 379 and 381) and United States (ibid., §§ 380 and 382–383).
[5] See, e.g., the statements of United Kingdom (ibid., § 397) and United States (ibid., §§ 399–401), the practice of the United Kingdom (ibid., §§ 397–398) and United States (ibid., §§ 400–401) and the reported practice of Lebanon (ibid., § 393).
[6] 24th International Conference of the Red Cross, Res. IV (ibid., § 435); see also 21st International Conference of the Red Cross, Res. IX and 22nd International Conference of the Red Cross, Res. I.
[7] Geneva Conventions, common Article 3 (cited in Vol. II, Ch. 37, § 354).
[8] Statutes of the International Red Cross and Red Crescent Movement, Article 5(2)(d) (ibid., § 358).
[9] See, e.g., the practice of El Salvador (ibid., § 390), Russian Federation (ibid., § 395) and Rwanda (ibid., § 396) and the reported practice of Afghanistan (ibid., § 388) and Yemen (ibid., § 403); see also François Bugnion, The International Committee of the Red Cross and the Protection of War Victims, ICRC, Geneva, 2003, pp. 632–648 (describing examples from the conflicts in Algeria, El Salvador, Nicaragua and Nigeria, among others).
[10] Agreement between the Government of Greece and the ICRC (cited in Vol. II, Ch. 37, § 357); Agreement between Croatia and the Socialist Federal Republic of Yugoslavia on the Exchange of Prisoners, § 4 (ibid., § 360); Agreement No. 3 on the ICRC Plan of Action between the Parties to the Conflict in Bosnia and Herzegovina, Section IV (ibid., § 361); Agreement between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners, Article 8 (ibid., § 362); Agreement on the Application of International Humanitarian Law between the Parties to the Conflict in Bosnia and Herzegovina, § 2.4 (ibid., § 363); Ashgabat Protocol on Prisoner Exchange in Tajikistan, § 5 (ibid., § 364).
[11] See, e.g., the reported practice of armed opposition groups and separatist entities (ibid., §§ 452–465).
[12] See, e.g., UN Security Council, Res. 770 and 771 (ibid., § 411), Res. 968 (ibid., § 412), Res. 1009 (ibid., § 413), Res. 1010 (ibid., § 414) and Res. 1019 and 1034 (
ibid., § 415); UN Security Council, Statement by the President (ibid., § 416); UN General Assembly, Res. 46/242 (ibid., § 418); UN Commission on Human Rights, Res. 1998/70 (ibid., § 419); UN Commission on Human Rights, Statement by the Chairman (ibid., § 420); European Parliament, Resolution on violations of human rights and humanitarian law in Chechnya (ibid., § 428); OSCE, Permanent Council, Resolution on Chechnya (ibid., § 431).
[13] UN Security Council, Res. 1019 (ibid., § 415).
[14] 25th International Conference of the Red Cross, Res. I (ibid., § 436).
[15] See also Yves Sandoz, “Le droit d'initiative du Comité international de la Croix-Rouge”, German Yearbook of International Law, Vol. 22, 1979, pp. 352–373.
[16] See the practice of the ICRC (cited in Vol. II, Ch. 37, § 441).
