Rule 124. ICRC Access to Persons Deprived of Their LibertyRule 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.
SummaryState practice establishes these rules as norms of customary international law applicable in international and non-international armed conflicts respectively.
International armed conflictsThe right of the ICRC to visit detainees in international armed conflicts is provided for in the Third and Fourth Geneva Conventions. 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. The right of the ICRC to visit persons deprived of their liberty is also recognized in other treaties and instruments.
Numerous military manuals recognize the right of the ICRC to visit detainees. This right is supported by official statements and other practice. 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”.
Non-international armed conflictsThere 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. 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.
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. 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. There are also numerous examples of armed opposition groups and separatist entities according the ICRC access to persons held in detention.
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. 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.
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”.
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.
ConditionsWhen 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.
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.