Practice Relating to Rule 99. Deprivation of Liberty

Geneva Convention IV
Article 78, second paragraph, of the 1949 Geneva Convention IV provides:
Decisions regarding such assigned residence or internment [for imperative reasons of security] shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 78, second para.
European Convention on Human Rights
Article 5(1) of the 1950 European Convention on Human Rights provides: “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 5(1).
International Covenant on Civil and Political Rights
Article 9(1) of the 1966 International Covenant on Civil and Political Rights provides: “No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 9(1).
American Convention on Human Rights
Article 7(2) of the 1969 American Convention on Human Rights provides:
No one shall be deprived of his physical liberty except for reasons and under the conditions established beforehand by the constitution of the State Party concerned or by law established pursuant thereto. 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 7(2).
African Charter on Human and Peoples’ Rights
Article 6 of the 1981 African Charter on Human and Peoples’ Rights provides: “No one may be deprived of his freedom except for reasons and conditions previously laid down by law.” 
African Charter on Human and Peoples’ Rights, adopted by the Eighteenth Ordinary Session of the OAU Assembly of Heads of State and Government, Nairobi, 27 June 1981, OAU Doc. CAB/LEG/67/3 rev.5, Article 6.
Convention on the Rights of the Child
Article 37 of the 1989 Convention on the Rights of the Child provides: “The arrest, detention or imprisonment of a child shall be in conformity with the law.” 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 37.
ICC Statute
Article 55(1)(d) of the 1998 ICC Statute provides: “In respect of an investigation under this statute, a person … shall not be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established in this Statute.” 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 55(1)(d).
Convention on Enforced Disappearance
The 2006 Convention on Enforced Disappearance provides:
Recalling … relevant international instruments in the fields of human rights, humanitarian law and international criminal law,
Article 17
2. Without prejudice to other international obligations of the State Party with regard to the deprivation of liberty, each State Party shall, in its legislation:
(a) Establish the conditions under which orders of deprivation of liberty may be given;
(b) Indicate those authorities authorized to order the deprivation of liberty. 
International Convention for the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 61/177, 20 December 2006, Annex, Preamble and Article 17(2).
American Declaration on the Rights and Duties of Man
Article XXV of the 1948 American Declaration on the Rights and Duties of Man provides: “No person may be deprived of his liberty except in the cases and according to the procedure established by pre-existing law.” 
American Declaration on the Rights and Duties of Man, adopted by the Ninth International Conference of American States, Res. XXX, Bogotá, 2 May 1948, Article XXV.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 2 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides: “Arrest, detention or imprisonment shall only be carried out strictly in accordance with the provisions of the law and by competent officials or persons authorized for that purpose.” 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 2.
Canada
Canada’s LOAC Manual (2001), in its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Treatment of internees”, states: “Protected persons may be interned only in accordance with the provisions of [the 1949 Geneva Convention IV] and only in cases when they pose a threat to the state in whose hands they are.” 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1129.2.
Mexico
Mexico’s Army and Air Force Manual (2009), in a section on the Fourth Geneva Convention, states:
If protected persons are ordered to be interned or placed in assigned residence, this decision must be reconsidered as soon as possible and, if it is upheld, the case must be re-examined at least twice a year. 
Mexico, Manual de Derecho Internacional Humanitario para el Ejército y la Fuerza Área Mexicanos, Ministry of National Defence, June 2009, § 233.
Peru
Peru’s IHL and Human Rights Manual (2010), in a section on the human rights obligations of the security forces, states: “Each person has the right to liberty and security; he or she may not be subjected to arbitrary detention or imprisonment. Deprivation of liberty is only allowed … in accordance with the established procedures.” 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 105(h), pp. 146–147; see also § 102(h), p. 136.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) states:
The decisions regarding such assigned residence or internment [for imperative reasons of security] can only be made in accordance with a regular procedure to be prescribed by the Occupant in accordance with the obligations of [the 1949 Geneva Convention IV]. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 555.
United States of America
The US Manual on Detainee Operations (2008) states:
Legal Considerations
a. As a subset of military operations, detainee operations must comply with the law of war during all armed conflicts, however such conflicts are characterized, and in all other military operations …
c. The four Geneva Conventions of 1949 are fully applicable as a matter of international law to all military operations that qualify as international armed conflicts … The principles reflected in these treaties are considered customary international law, binding on all nations during international armed conflict. Although often referred to collectively as the “Geneva Conventions,” the specific treaties are:
(4) The [1949] Geneva Convention [IV] … This convention deals with the protection of civilians who find themselves under the control of an enemy nation (normally during a period of belligerent occupation). It regulates the treatment of such civilians, including establishing procedures for the deprivation of liberty (arrest, internment, assigned residence). 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-2–I-3.
The manual also states:
Civilian Internee … [is a] civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power. Such individuals, unless they have committed acts for which they are considered unlawful combatants, generally qualify for protected status IAW [in accordance with] the GC [1949 Geneva Conventions], which also establishes procedures that must be observed when depriving such civilians of their liberty. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. I-5.
Afghanistan
Afghanistan’s Interim Criminal Procedure Code (2004) states:
Conduct of the Hearing.
3. The Court proceedings are conducted according to the following order:
b. When the accused is under detention the Court shall immediately assess the legality of the arrest and order the liberation of the accused … [if] the arrest was unlawful or not necessary. 
Afghanistan, Interim Criminal Procedure Code, 2004, Article 53(3)(b).
Afghanistan
Afghanistan’s Presidential Decree on Special Operations (2012) states:
Handing over the Special Operations from … NATO to [the] mixed – MoD [Ministry of Defence], MoI [Ministry of the Interior] and NDS [National Directorate of Security] – Afghan security forces was an essential [step] to ensure and guarantee the national sovereignty and rule of law in Afghanistan. Implementation of such operation[s] makes the responsibilities of the judicial and justice bodies harder, and requires them to have a[n] [in-]depth concentration on the fundamental rights and freedom[s] of the citizens, guaranteed in the Constitution and Criminal Procedure Code in [all] phases – inspection, detection, investigation, prosecution and trial.
Thus, I order observance of the following provisions … :
6. Operational force[s] can't arrest or detain the accused person without prosecutor's warrant, except [in] flagrante delicto (immediate situation).
7. Arrest and detention should be based on sufficient reasons in accordance with the law. The [files of i]ndividuals, who are kept [as] suspicious in … custody, should be completed in the legal time frame and be submitted to the investigation bodies. 
Afghanistan, Presidential Decree on Special Operations, 2012, Article 7.
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states: “The deprivation of personal liberty, understood as the placement of a child or adolescent in a location that cannot be left by his or her own will, must be done in conformity with the legislation in force.” 
Argentina, Law on the Protection of Childrens and Adolescents Rights, 2005, Article 19.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime. 
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
Police may deprive a person of liberty if there are grounds for suspicion that he may have committed a criminal offence and if there are any of the reasons as referred to in Article 132 of this Code [Grounds for Pre-trial Custody], but they must immediately, but no later than 24 hours, bring that person before the Prosecutor. In apprehending the person concerned, the police authority shall notify the Prosecutor of the reasons for and time of the deprivation of liberty. Use of force in accordance with law is allowed when apprehending the person. 
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 139(1); see also Article 134(1)–(3).
China
China’s Criminal Procedure Law (1979), as amended in 1996, states:
Article 64 When detaining a person, a public security organ must produce a detention warrant.
Within 24 hours after a person has been detained, his family or the unit to which he belongs shall be notified of the reasons for detention and the place of custody, except in circumstances where such notification would hinder the investigation or there is no way of notifying them.
Article 65 A public security organ shall interrogate a detainee within 24 hours after detention. If it is found that the person should not have been detained, he must be immediately released and issued a release certificate. If the public security organ finds it necessary to arrest a detainee when sufficient evidence is still lacking, it may allow the detainee to obtain a guarantor pending trial or place him under residential surveillance. 
China, Criminal Procedure Law, 1979, as amended in 1996, Articles 64 and 65.
China
China’s Martial Law (1996) states:
The martial-law-enforcing officers shall have the persons, whom they have detained in accordance with the provisions of this Law, immediately registered and interrogated and shall release the ones as soon as they find that there is no need to detain them any longer.
During the period of martial law, the procedures and time limit for detention and arrest may be free from the restrictions of the relevant provisions of the Criminal Procedure Law of the People’s Republic of China, except that an arrest shall be subject to approval or decision of a People’s Procuratorate. 
China, Martial Law, 1996, Article 27.
Colombia
Colombia’s Criminal Procedure Code (2004) states: “Nobody’s right to personal integrity and liberty may be infringed except by virtue of a written order by a competent judicial authority, established in accordance with legal procedures and for reasons previously established by the law.” 
Colombia, Criminal Procedure Code, 2004, Article 2.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides:
Chapter II: Preparatory investigation and prosecution
Article 182:
The military investigating judge can, depending on the case, issue a summons to appear before the court mandat de comparution, a warrant of enforced appearance before the court mandat d’amener, or a warrant of arrest mandat d’arrêt.
Article 187:
The military investigating judge immediately interrogates the accused who is the object of a summons to appear or a warrant of enforced appearance.
However, if the accused cannot be heard immediately, he is taken to the remand centre, where he cannot be held for longer than 48 hours.
Article 188:
Every accused arrested according to a warrant of enforced appearance who has been held in a remand centre for more than 48 hours without having been heard is regarded as arbitrarily detained.
Every judge, officer or official who has ordered or knowingly tolerated that arbitrary detention is punished according to the penalties provided by article 180 of the ordinary Penal Code.
Article 191:
If the accused has absconded, the military investigating judge can, after hearing the Military Auditor, issue a warrant of arrest against him.
The accused seized according to a warrant of arrest is, without delay, taken to the detention centre indicated in the warrant.
Article 192:
During the 48 hours of the accused’s detention his interrogation takes place. If not, the provisions of article 180 of the ordinary Penal Code are applicable.
Article 196:
Without prejudice to the provisions of articles 188 and 192 of the present Code, the inobservance of the formalities prescribed for a summons to appear, a warrant of enforced appearance, and a warrant of arrest, give rise to disciplinary sanctions against the investigating judge of the Military Auditor. 
Democratic Republic of the Congo, Military Judiciary Code, 2002, Articles 182, 187–188, 191–192 and 196.
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states: “‘No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.’ (Article 9(1) of the International Covenant of Civil and Political Rights).” 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 44.
India
Countless pieces of national legislation require that arrest be carried out in accordance with legal procedures. For instance, India’s Code of Criminal Procedure (1973) contains elaborate rules regarding arrest by law enforcement agencies and the protection of human rights while arrest is being executed. 
India, Code of Criminal Procedure, 1973, Sections 41–60.
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Article 78 of the Geneva Convention IV, is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Morocco
Morocco’s Penal Code (1962) provides:
Article 228
Any supervisor or guard of a penitentiary institution or a place allocated to the holding of detainees who has received a prisoner without one of the regular titles of detention provided for in article 653 of the criminal procedure code or who has refused, without showing a prohibition by the investigating magistrate, to present that prisoner to the authorities or persons authorized to visit him, according to the provisions of articles 660 to 662 of the criminal procedure code, or has refused to present his register to the authorized persons mentioned, is guilty of arbitrary detention and punished by imprisonment for 6 months to two years and a fine of 200 to 500 dirhams. 
Morocco, Penal Code, 1962, Article 228.
Morocco
Morocco’s Constitution (1996) provides: “No one shall be arrested, put into custody or penalized except under the circumstances and procedures prescribed by law.” 
Morocco, Constitution, 1996, Article 10(1).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the Geneva Conventions of 12 August 1949 … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(a).
Philippines
The Philippines’ Republic Act No. 6975 (1990) provides: “The PNP [Philippine National Police] shall have the following powers and functions: … (e) Detain an arrested person for a period not beyond what is prescribed by law, informing the person so detained of all his rights under the Constitution.” 
Philippines, Republic Act No. 6975, 1990, Section 24.
Philippines
The Philippines’ Republic Act No. 9054 (2001) provides:
Sec. 5. Powers and Functions of Regional Police Force. –
The Regional Police Force [of the Autonomous Region In Muslim Mindanao] shall exercise within the autonomous region the following powers and functions:
(e) Detain persons for a period not exceeding what is prescribed by law, inform the person so detained of all his or her rights under the Constitution, and observe the human rights of all people in the autonomous region. 
Philippines, Republic Act No. 9054, 2001, Section 5(e).
Qatar
Qatar’s Code of Criminal Procedure (2004) states: “No individual may be arrested or detained except by virtue of a relevant order from competent authorities and in legally defined cases.” 
Qatar, Code of Criminal Procedure, 2004, Article 40.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states:
Art. 196 Definition
Compulsory measures are procedural acts carried out by the criminal justice authorities that restrict the fundamental rights of the persons concerned …
Art. 197 Principles
1. Compulsory measures may be taken only if:
a. they are permitted by law;
2. Particular caution must be taken when carrying out compulsory measures that restrict the fundamental rights of persons not accused of an offence. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Articles 196 and 197(1)(a) and (2).
The Code further states: “An accused person … may be subjected to compulsory measures involving deprivation of liberty only in accordance with the provisions of this Code.” 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Article 212(1).
United States of America
In July 2004, the US Secretary of Defense issued a memorandum to the Secretary of the Navy that ordered the establishment of a Combatant Status Review Tribunal (CSRT) process for enemy combatants detained at Guantánamo Bay Naval Base, Cuba:
This Order applies only to foreign nationals held as “enemy combatants” in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba (“detainees”).
a. Enemy Combatant. For purposes of the Order, the term “enemy combatant” shall mean an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces. Each detainee subject to this Order has been determined to be an enemy combatant through multiple levels of reviews by officers of the Department of Defense.
b. Notice. Within ten days after the date of this Order, all detainees shall be notified of the opportunity to contest designation as an enemy combatant in the proceeding described herein, of the opportunity to consult with and be assisted by a personal representative as described in paragraph (c), and of the right to seek a writ of habeas corpus in the courts of the United States.
c. Personal Representative. Each detainee shall be assigned a military officer, with the appropriate security clearance, as a personal representative for the purpose of assisting the detainee in connection with the review process described herein. The personal representative shall be afforded the opportunity to review any reasonably available information in the possession of the Department of Defense that may be relevant to a determination of the detainee’s designation as an enemy combatant, including any records, determinations, or reports generated in connection with earlier determinations or reviews, and to consult with the detainee concerning that designation and any challenge thereto. The personal representative may share any information with the detainee, except for classified information, and may participate in the Tribunal proceeding as provided in paragraph (g)(4).
d. Tribunals. Within 30 days after the detainee’s personal representative has been afforded the opportunity to review the reasonably available information in the possession of the Department of Defense and had an opportunity to consult with the detainee, a Tribunal shall be convened to review the detainee’s status as an enemy combatant.
e. Composition of Tribunal. A Tribunal shall be composed of three neutral commissioned officers of the U.S. Armed Forces, each of whom possesses the appropriate security clearance and none of whom was involved in the apprehension, detention, interrogation, or previous determination of status of the detainee. One of the members shall be a judge advocate. The senior member (in the grade of 0–5 and above) shall serve as President of the Tribunal. Another non-voting officer, preferably a judge advocate, shall serve as the Recorder and shall not be a member of the Tribunal.
f. Convening Authority. The Convening Authority shall be designated by the Secretary of the Navy. The Convening Authority shall appoint each Tribunal and its members, and a personal representative for each detainee. The Secretary of the Navy, with the concurrence of the General Counsel of the Department of Defense, may issue instructions to implement this Order. 
United States, Deputy Secretary of Defense, Paul Wolfowitz, Memorandum for The Secretary of the Navy, Order Establishing Combatant Status Review Tribunal, 7 July 2004.
United States of America
In July 2004, and in response to a Deputy Secretary of Defense Order of 7 July 2004 that had established a Combatant Status Review Tribunal (CSRT) Process, the US Secretary of the Navy issued a memorandum on the Implementation of CSRT Procedures for Enemy Combatants detained at Guantánamo Bay Naval Base, Cuba:
[The Deputy Secretary of Defense Order of 7 July 2004] has established a Combatant Status Review Tribunal (CSRT) process to determine, in a fact-based proceeding, whether the individual detained by the Department of Defense at the US Naval Base Guantánamo Bay, Cuba, are properly classified as enemy combatants and to permit each detainee the opportunity to contest such designation. The Secretary of the Navy has been appointed to operate and oversee this process.
The Combatant Status Review Tribunal process provides a detainee: the assistance of a Personal Representative; an interpreter if necessary; an opportunity to review unclassified information relating to the basis for his detention; the opportunity to appear personally to present reasonably available information relevant to why he should not be classified as an enemy combatant; the opportunity to question witnesses testifying at the Tribunal; and to the extent they are reasonably available, the opportunity to call witnesses on his behalf.
The CSRT Process, contained in Enclosure 1 to the 29 July memorandum, states:
This process will provide a non-adversarial proceeding to determine whether each detainee in the control of the Department of Defense at the Guantánamo Bay Naval Base, Cuba, meets the criteria to be designated as an enemy combatant, defined in [Deputy Secretary of Defense Order of 7 July 2004] as follows:
An “enemy combatant” for purposes of this order shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.
Each detainee whose status will be reviewed by a Tribunal has previously been determined, since capture, to be a combatant through multiple levels of review by military officers and officials of the Department of Defense.
The Director, CSRT, shall convene Tribunals pursuant to this implementing directive to conduct such proceedings as necessary to make a written assessment as to each detainee’s status as an enemy combatant. Each tribunal shall determine whether the preponderance of the evidence supports the conclusion that each detainee meets the criteria to be designated as an enemy combatant.
Adoption of the procedures outlined in this directive is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities or entities, its officers, employees or agents, or any other person. 
United States, Secretary of the Navy, Gordon England, Memorandum, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at Guantánamo Bay Naval Base, Cuba, 29 July 2004.
United States of America
In September 2004, the US Secretary of the Navy, acting in his capacity as Designated Civilian Official, Administrative Review of the Detention of Enemy Combatants at Guantánamo Bay Detention Facility, issued a memorandum regarding the Administrative Review procedures to be followed at Guantánamo:
In accordance with the policy guidelines set by the Secretary of Defense, the Administrative Review Procedures will encompass an administrative proceeding for consideration of all relevant and reasonably available information to determine whether the enemy combatant represents a continuing threat to the US or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters (e.g., Taliban), and whether there are other factors that could form the basis for continued detention (e.g., the enemy combatant’s intelligence value and any law enforcement interest in the detainee). The proceeding will result in a recommendation to release, transfer, or continue to detain each enemy combatant. This process is non-adversarial. It provides an enemy combatant the opportunity to review unclassified information relating to his continued detention, and to appear personally to present information relevant to his continued detention, transfer or release.
The Administrative Review Procedures were established [and subsequently amended] to permit annual reviews of DoD [Department of Defense] detainees in the Global war on Terrorism at US Naval Base Guantánamo Bay, Cuba, except those whom the President has determined to be subject to a Military Commission … until the disposition of any charges against them or by the service of any sentence imposed by a Military Commission. The Administrative Review Procedures involve military authority exercised in the field in time of war. These proceedings are not governed by the Federal Rules of Evidence or equivalent state evidentiary rules. 
United States, Department of Defense, Designated Civilian Official, Administrative Review of the Detention of Enemy Combatants at Guantánamo Bay Detention Facility, Gordon England, Memorandum, Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 September 2004.
United States of America
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum regarding the Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. These procedures amended those promulgated in the Department of Defense Memorandum, Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 September 2004, through the incorporation of requirements contained within the Detainee Treatment Act of 2005:
[The Detainee Treatment Act of 2005] requires that the procedures governing the Administrative Review process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the Administrative Review process ensure that, in making a determination of a detainee’s disposition, an Administrative Review Board (ARB), to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such statement. 
United States, Department of Defense, Deputy Secretary of Defense, Gordon England, Memorandum, Revised Implementation of Administrative Review Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba, 14 July 2006.
United States of America
In July 2006, the US Deputy Secretary of Defense, Gordon England, issued a memorandum on the Implementation of Combatant Status Review Tribunal (CSRT) Procedures for Enemy Combatants Detained at US Naval Base Guantánamo Bay, Cuba. This memorandum amended a memorandum on the same subject that had been issued by Mr England on 29 July 2004, in his then capacity as Secretary of the Navy. The amendments, which incorporated requirements contained within the Detainee Treatment Act of 2005 into the text of the original memorandum, stated:
[The Detainee Treatment Act of 2005] requires that the procedures governing the CSRT process provide for periodic review of any new evidence that may become available relating to the enemy combatant status of a detainee … [The Detainee Treatment Act of 2005] also requires that the procedures governing the CSRT process ensure that, in making a determination of a detainee’s status, a CSRT, to the extent practicable, assess whether any statement derived from or relating to such a detainee was obtained as a result of coercion and the probative value, if any, of such a statement. 
United States, Deputy Secretary of Defense, Gordon England, Memorandum, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants detained at US Naval Base Guantánamo Bay, Cuba, 14 July 2006.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
The provisions of this Code that authorize the preventive detention or restriction of freedom … of the indicted [person] … are of an exceptional character; they may only be interpreted restrictively and their application must be proportional to the sentence or security measure that could be imposed.
The only preventive measures [that may be taken] against the indicted [person] are those authorized by this Code, in accordance with the Constitution of the Republic. 
Venezuela, Penal Procedure Code, 2009, Article 9.
The Code further states:
The supervisory judge can order the preventive deprivation of liberty of the indicted [person] by request of the Prosecution Office if there is:
1. A punishable offence that merits the preventive deprivation of liberty, and for which criminal proceedings are not time-barred.
2. A founded belief that the indicted [person] is the author or has participated in the commission of a punishable offence.
3. A reasonable suspicion, through the assessment of the particular circumstances of the case, that there is a danger of flight or of obstructing the search for the truth with regards to the act under investigation. Internment can last up to eight days. 
Venezuela, Penal Procedure Code, 2009, Article 250; see also Articles 129 and 254.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
The provisions of this code that authorize the preventive detention or restriction of freedom … of the indicted [person] … are of an exceptional character; they may only be interpreted restrictively and their application must be proportional to the sentence or security measure that could be imposed.
The only preventive measures [that may be taken] against the indicted [person] are those authorized by this code, in accordance with the Constitution of the Republic. 
Venezuela, Penal Procedure Code, 2012, Article 9.
The Code further states:
The supervisory judge can order the preventive deprivation of liberty of the indicted [person] by request of the Prosecution Office if there is:
1. A punishable offence that merits the preventive deprivation of liberty, and for which criminal proceedings are not time-barred.
2. A founded belief that the indicted [person] is the author or has participated in the commission of a punishable offence.
3. A reasonable suspicion, through the assessment of the particular circumstances of the case, that there is a danger of flight or of obstructing the search for the truth with regards to the act under investigation. Internment can last up to eight days. 
Venezuela, Penal Procedure Code, 2012, Article 236; see also Articles 131 and 240.
Bosnia and Herzegovina
In 2007, in the Lučić case, the Panel of the Court of Bosnia and Herzegovina stated:
The elements of “imprisonment” as a crime against humanity are as follows: “an individual is deprived of his or her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty” [ICTY, Krnojelac case, Judgement, 15 March 2002, para. 115].
The Court notes that imprisonment of civilians is unlawful where: “civilians have been detained in contravention of Article 42 of the [1949] Geneva Convention IV, i.e. that they are detained without reasonable grounds to believe that the security of the Detaining Power makes it absolutely necessary; the procedural safeguards required by Article 43 of the IV Geneva Convention are not complied with in respect of detained civilians, even where initial detention may have been justified; and the imprisonment occurs as part of a widespread or systematic attack against a civilian population” [ICTY, Kordić and Čerkez case, Appeals Chamber Judgement, 17 December 2004, para. 114].
The Court also considers that “… deprivation of an individual’s liberty is arbitrary if imposed without due process of law. The Trial Chamber outlined the following elements to establish a crime of imprisonment (or unlawful confinement) as a crime against humanity … : an individual is deprived of his or her liberty; the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; the act or omission by which the individual is deprived of his or her physical liberty is performed by the accused or a person or persons for whom the accused bears criminal responsibility with the intent to deprive the individual arbitrarily of his or her physical liberty or in the reasonable knowledge that his act or omission is likely to cause arbitrary deprivation of physical liberty”. [ICTY, Simić case, Judgement, 17 October 2003, para. 64].
The Court considers that the deprivation of liberty of the individual without the due process of law is a distinctive element of the definition of imprisonment. Indeed, the ICTY Appeal Chamber noted that it “agrees with the Trial Chamber’s finding that the term imprisonment in Article 5(e) of the statute should be understood as arbitrary imprisonment, that is to say, the deprivation of liberty of the individual without the due process of law, as part of a widespread and systematic attack directed against the civilian population” [ICTY, Kordić and Čerkez case, Appeals Chamber Judgement, 17 December 2004, para. 116]. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 51–52.
The Court also held:
It is true that the Geneva Conventions and their additional protocols, in case of an armed conflict, both international and non-international, provide for internment and assigned residence as possible measures to be taken. But this exceptional measure is subject to many guarantees that must be met … Indeed, the Court emphasizes that these measures must be “absolutely necessary for the State security”. This is implied under the general principle that personal liberty is a rule and that criminal justice system is able to deal with persons suspected of representing a danger to State security. Another guarantee provided by Article 78 of the [1949] Fourth Geneva Convention and Article 4(2)(b) of the [1977] Additional Protocol II, consists in the prohibition of internment as a collective punishment, meaning that this internment can only be ordered on a case-by-case basis, and not as a collective measure. Also, the principle of legality implies that where a State decides to derogate the right to liberty, such a decision must, inter alia, be officially proclaimed so as to enable the affected population to know the exact material, territorial and temporal scope of application of that emergency measure. Furthermore, “internment” implies the right to be informed about the reasons for such a measure and to be registered and held in a recognized place of internment, with a right to challenge the lawfulness of the detention …
The Court concludes that … none of the required guarantees for internment have been respected. The Court further concludes that the detention at issue was not “interment” but proper unlawful imprisonment. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Lučić case, Judgment, 19 September 2007, pp. 67–68.
[footnotes in original omitted]
Pakistan
In its judgment in the Baluch case in 1968, the Supreme Court of Pakistan stated:
It is well-settled that a law is not to be given retrospective effect unless it is expressly or by necessary intendment made retrospective … In the present case, what was under challenge in the High Court, was the validity of the detention order passed on the 11th August 1966, which was made before the present amendments came into force. The validity of that order has, of necessity, therefore, to be judged on the basis of the law prevailing on that day. 
Pakistan, Supreme Court, Baluch case, Judgment, 24 May 1968.
Peru
In 2009, in the Fujimori case, the Special Criminal Chamber of Peru’s Supreme Court of Justice was called upon to decide whether the former Peruvian president was criminally responsible for acts committed in 1991 and 1992 in the context of anti-terror operations. He was charged with various offences under domestic criminal law, including the abduction of two officials after his coup d’état in 1992. The Court summarized the facts as follows:
1. … [X] … was deprived of his liberty by heavily armed military personnel and SIE [Army Intelligence Service] personnel … Subsequently, and without being given any notification or information as to the [legal] process initiated against him and in a context that saw the democratic system being disrupted [as a result of the coup d’état], he was forcefully transferred to military units of the SIE where he was stealthily taken to the detention facilities in the basement. In the morning of the next day, … he eventually regained his liberty …
2. … [Y] was forcefully taken to the basements of the SIE without any judicial order, formal notification of the charges against him, or any other previous information, thus violating the regular procedural rules. … [H]e was investigated for [alleged] terrorism [offences] but, unusually, remained deprived of his liberty in SIE units. Although DINCOTE [the National Counterterrorism Directorate] declared his innocence on the third of August [1992], he remained in detention without any justification or explication until the fifth of August [1992] when he was able to flee with the help of unidentified individuals. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 678.
Drawing on the domestic criminal law in force at the time when the alleged events took place, the court held:
The destruction of the rule of law which resulted from the establishment of the so-called “National Emergency and Reconstruction Government”, which by its very nature undermined the constitutional order … , does not constitute a sufficient reason under criminal law to justify or, at any rate, excuse a rebellion and the abductions that took place to “consolidate” the new dictatorial regime. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 681(1).
[footnotes in original omitted]
The defence put forward the following justification for the deprivation of liberty:
The Defence argues that the physical liberty was suspended because a State of Emergency had been declared by Presidential Decree number 019-92-DE-CCFFAA of 28 March 1992 which suspended not only the right to liberty, but also the protection from detention and the protection of habeas corpus. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 686.
In response to this argument, the court found:
687. This reasoning is not acceptable either for the following reasons:
1. It is correct that Lima and El Callaro were in a State of Emergency in accordance with Presidential Decree number 019-92-DE-CCFFAA, which … suspended the constitutional guarantees set out in paragraphs 7), 9), 10) and 20-g) of Article 20 of the 1979 Constitution. At the same time, Law number 24150 and Legislative Decree number 7649 gave the armed forces control over the internal order. …
2. … [P]ersonal liberty, reflected in the fundamental right to be free from detention by a political authority except based on legal reasons and subject to remand [hearings], was specifically suspended, not derogated, after the State of Emergency had been declared (strictly speaking, the State of Emergency had been prorogated) (in any case, not the constitutional right of the individual is suspended, but its full and effective exercise). In such circumstances, the State of Emergency does not wipe out the legally protected good of personal liberty. It merely gives rise to a type of authorization to restrict the liberty of an individual under certain conditions. … Therefore, the legally protected good remains in force and must continue to be respected, except within the legally authorized limits.
Nevertheless, the legal guarantee of habeas corpus cannot be suspended …
3. By its very nature, the State of Emergency is declared in defence of the constitutional order and the value system protected and recognized by this order … A State of Emergency may not be invoked to justify the beginning or consolidation of a coup d’état which in and of itself negates the constitutional order, even less so when it concerns citizens who are not related to any terrorist subversion.
4. Not only was the victim [X] not linked to the terrorist subversion, but the authorities and officials who ordered and carried out his deprivation of liberty also acted outside the law. They also acted outside their powers under the State of Emergency as their acts were not in line with the principles and reasons that justify the State of Emergency as an indispensable institution in a democratic society. Such conduct … amounts to the crime of abduction and, as such, must be prosecuted and, in this case, punished. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 687.
[footnotes in original omitted]
The Court further held:
[In the present two cases of deprivation of liberty, it] is particularly relevant that public officials acted in a context of outright deviation from the law. They were not pursuing private goals, but used the means of the State in order to strengthen an unconstitutional regime or, in the second case, in order to arbitrarily persecute an individual, incorrectly alleging that the victim [X] had committed serious offences against public order or, in the second case [of Y], serious offences against national security. 
Peru, Supreme Court of Justice, Fujimori case, 7 April 2009, § 690.
United States of America
In the Bismullah case in 2007, a writ of habeas corpus appeal involving eight detainees at the Guantánamo Bay Naval Base (each petitioner seeking review of the determination by a Combatant Status Review Tribunal (CSRT) that he is an “enemy combatant”), the US Court of Appeals for the District of Columbia Circuit stated:
In order to review a Tribunal’s determination that, based upon a preponderance of the evidence, a detainee is an enemy combatant, the court must have access to all the information available to the Tribunal. We therefore hold that, contrary to the position of the Government, the record on review consists of all the information a Tribunal is authorized to obtain and consider, pursuant to the procedures specified by the Secretary of Defense, hereinafter referred to as Government Information and defined by the Secretary of the Navy as “such reasonably available information in the possession of the U.S. Government bearing on the issue of whether the detainee meets the criteria to be designated as an enemy combatant,” which includes any information presented to the Tribunal by the detainee or his Personal Representative.
In addition, we must implement such measures to govern these proceedings as are necessary to enable us to engage in meaningful review of the record as defined above. Therefore, we will enter a protective order adopting a presumption, as proposed by the petitioners, that counsel for a detainee has a “need to know” the classified information relating to his client’s case, except that the Government may withhold from counsel, but not from the court, certain highly sensitive information. 
United States, Court of Appeals for the District of Columbia Circuit, Bismullah case, Judgment, 20 July 2007.
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated that its Constitution provides:
[N]o one shall be arrested or detained without a written court warrant issued on the basis of law. Such a warrant shall be read and served on the person being arrested. The police may arrest a person without a warrant when the person is reasonably suspected of having committed a serious criminal offence defined by law. 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 205.
Ethiopia
According to the Report on the Practice of Ethiopia, during the Mengistu regime in Ethiopia, unlawful detention and internment were widely practised. The report also states: “The law seems to allow deprivation of one’s liberty on mere suspicion. The individual may also lose his liberty in circumstances where formal arrest is not justified for lack of evidence.” 
Report on the Practice of Ethiopia, 1998, Chapter 5.3 and 5.7.
Germany
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Measures to transfer detainees (rendition and extraordinary rendition) and the prohibition on refoulement
The United States defines “rendition” as the transfer of a person into another State. This comprises both the transfer of persons into the United States (from another State, with the consent of that State) and the transfer from the United States into another State (for example for the purpose of interrogation). The latter is sometimes referred to in the United States as “extraordinary rendition”. “Rendition” and “extraordinary rendition” can also be insofar combined as a person is transferred from a State other than the United States, not into the United States but directly into a third State.
Such “renditions” apparently do not follow the rules on international legal assistance in criminal law matters …
As regards the assessment of the US “rendition” practice under international law, aspects relating to the possible violation of State sovereignty and aspects relating to the possible violation of the human rights of the persons concerned must be distinguished.
If a State consents to the transfer of persons from its territory to another State, State sovereignty is not infringed …
To be separated from this is the question whether and to what extent this form of “rendition” violates individual human rights. The case law of the Strasbourg bodies indicates that the rendition as such is not a violation of individual human rights by the State into which the person was transferred.
It needs to be underlined that the cases decided by the Strasbourg bodies concerned the transfer of persons from a State not party to the ECHR [1950 European Convention on Human Rights] into a State party to the ECHR, and (necessarily) proceedings only against the State party. A “rendition” by a State party to the ECHR outside the formal procedures of extradition/legal assistance provided for this could probably not be reconciled with Article 5 ECHR (right to liberty and security) and would – at least in Germany – also violate domestically applicable law. As regards Germany, formal procedures must be adhered to, and have been adhered to in the past.
The transfer of persons into other States, for example for the purpose of interrogation, is to be rejected for reasons of international law if it is intended to curtail the possibilities of legal protection guaranteed under international law. In any event prohibited under international law is such an “extraordinary rendition” which violates the imperative of “non-refoulement”, or, respectively, the absolute prohibition on torture. 
Germany, Federal Government, Report in response to request by Parliamentary Control Panel (2006), 23 February 2006, pp. 55, 69–70 and 76–78.
[emphasis in original]
Greece
In 1969, in the context of derogation under Article 15 of the 1950 European Convention on Human Rights, Greece informed the Secretary-General of the Council of Europe that it was beginning to restore application of the Constitution. The Constitution considered personal liberty to be inviolable, so that no one should be arrested or detained without a guarantee of constitutional forms and procedures. However, Greece added that this did not apply to persons charged with crimes against public order, who could be arrested without formalities if necessary. 
Greece, Letter to the Secretary-General of the Council of Europe, Doc. 2199, 4 October 1969, § A.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated: “No one shall be arrested during the night except in accordance with the prevailing laws.” 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, § 4.
Philippines
In a memorandum order issued in 1988, the President of the Philippines required the armed and police forces to strictly comply with the required legal processes in all cases of arrest and detention, for which they were given specific instructions. 
Philippines, Memorandum Order 209, 13 December 1988, § 1.
Philippines
A 1998 memorandum by the President of the Philippines, addressed to the Philippine Secretary of Justice, the Solicitor General and the Presidential Chief Legal Counsel, provides:
Pursuant to the 50th Anniversary Celebration of the Universal Declaration on Human Rights, you are hereby directed to jointly undertake the following activities:
1. Review all laws, decrees and executive issuances deemed repressive and ensure that all rights guaranteed in the Philippine Constitution are upheld, promoted and protected.
2. Review the Jurisprudence so that those judicial decisions and procedures not compatible with the standards of human rights and dignity can be brought to the attention of the Supreme Court, in particular, cases of warrantless arrests … and the circumvention of Habeas Corpus proceedings, among others. 
Philippines, President of the Republic of the Philippines, Memorandum, Review of Laws and Jurisprudence to Ensure Protection and Promotion of Human Rights, 10 December 1998.
Uganda
In 2003, in its initial report to the Human Rights Committee, with reference to the Constitution of the Republic of Uganda, Uganda stated that “where a person is restricted or detained under a law made for the purpose of a state of emergency”:
Not more than thirty days after the commencement of restriction of his or her restriction or detention, a notification shall be published in the gazette and in the media stating that he or she has been restricted or detained and giving particulars of the provisions of law under which his or her restriction or detention is authorised and the grounds of his or her restriction or detention. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, § 109; see also § 226.
Ukraine
In 1999, in its sixth periodic report to the Human Rights Committee, Ukraine stated:
72. In article 64, paragraph 2, the Constitution lists those rights and freedoms which may not be restricted under martial law or a state of emergency.
73. These rights and freedoms include, among others, the following:
- No one may be arrested or remanded in custody other than pursuant to a court decision … and only … in accordance with the procedure established by law. 
Ukraine, Sixth periodic report to the Human Rights Committee, 11 April 2006, UN Doc. CCPR/C/UKR/6, submitted 3 November 1999, §§ 72–73.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.12. … Arbitrary deprivation of liberty is prohibited.
12.13. The ICRC commentary to this rule distinguishes between international armed conflicts and non-international armed conflicts. In relation to the former, it refers exclusively to the internment regime set out in GC4 [the 1949 Geneva Convention IV] in relation both to the substantive right to intern and procedural protections during internment. The ICRC’s commentary on the [1977] additional protocols recognises that the procedural standards which apply during preventive detention may have to differ during wartime from standards which apply to peacetime detention.  
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, §§ 12, 12.12 and 12.13, pp. 28 and 31.
[footnote in original omitted; emphasis in original]
United States of America
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to William J. Haynes II, General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Two constitutional provisions that might be thought to extend to interrogations – the Fifth and Eighth Amendments – do not apply here. The Fifth Amendment provides in relevant part that “[n]o person … shall be deprived of life, liberty, or property, without due process of law.” … The Eighth Amendment bars the “inflict[ion]” of “cruel and unusual punishments.” … These provisions, however, do not regulate the interrogation of alien enemy combatants outside the United States during an international armed conflict. This is clear as a matter of the text and purpose of the Amendments, as they have been interpreted by the federal courts.
We conclude below that the Fifth Amendment Due Process Clause is inapplicable to the conduct of interrogations of alien enemy combatants held outside the United States for two independent reasons. First, the Fifth Amendment Due Process Clause does not apply to the President’s conduct of a war. Second, even if the Fifth Amendment applied to the conduct of war, the Fifth Amendment does not apply extraterritorially to aliens who have no connection to the United States.
If each time the President captured and detained enemy aliens outside the United States, those aliens could bring suit challenging the deprivation of their liberty, such a result would interfere with and undermine the President’s capacity to protect the Nation and to respond to the exigencies of war.
[E]ven if the Fifth Amendment applied to enemy combatants in wartime, it is clear that that the Fifth Amendment does not operate outside the United States to regulate the Executive’s conduct toward aliens. The Supreme Court has squarely held that the Fifth Amendment provides no rights to non-citizens who have no established connection to the country and who are held outside sovereign United States territory. Rasul v. Bush, 215 F. Supp. 2d 55, 72 n.16 (D.D.C. 2002) (“The Supreme Court in Eisentrager, Verdugo-Urquidez, and Zadvydas, and the District of Columbia Circuit in Harbury, have all held that there is no extraterritorial application of the Fifth Amendment to aliens.”) .
[T]he President’s power to detain and interrogate enemy combatants arises out of his constitutional authority as Commander in Chief. Any construction of criminal laws that regulated the President’s authority as Commander in Chief to determine the interrogation and treatment of enemy combatants would raise serious constitutional questions whether Congress had intruded on the President’s constitutional authority. Moreover, we do not believe that Congress enacted general criminal provisions such as the prohibitions against assault, maiming, interstate stalking, and torture pursuant to any express authority that would allow it to infringe on the President’s constitutional control over the operation of the Armed Forces in wartime. In our view, Congress may no more regulate the President’s ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. In fact, the general applicability of these statutes belies any argument that these statutes apply to persons under the direction of the President in the conduct of war.
Under our Constitution, the sovereign right of the United States on the treatment of enemy combatants is reserved to the President as Commander-in-Chief. In light of the long history of discretion given to each nation to determine its treatment of unlawful combatants, to construe these statutes to regulate the conduct of the United States toward such combatants would interfere with a well established prerogative of the sovereign. While the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 U.S.T. 3316, T.I.A.S. 3364 (“GPW”), imposes restrictions on the interrogations of prisoners of war, it does not provide prisoner of war status to those who are unlawful combatants. See Treaties (Ind Laws Memorandum at 8–9. Those restrictions therefore would not apply to the interrogations of unlawful belligerents such as al Qaeda or Taliban members. 
United States, Department of Justice, Office of Legal Counsel, John C. Yoo, Deputy Assistant Attorney General, Memorandum for William J. Haynes II, General Counsel of the Department of Defense, Military Interrogation of Alien Unlawful Enemy Combatants Held Outside the United States, 14 March 2003.
United States of America
In June 2004, the US Department of Defense issued a statement regarding the establishment of an administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. Entitled “Navy Secretary to Oversee Enemy Combatant Admin Review”, it stated:
The Department of Defense announced today that the Secretary of the Navy, Gordon R. England, has been named the designated civilian official to oversee the annual administrative review of the continued detention of enemy combatants at Guantánamo Bay Naval Base, Cuba. As the designated civilian official, England will operate and oversee the review process to assess whether each detainee held by the Department of Defense at Guantánamo should be released, transferred or should continue to be detained.
During the review, each detainee will have an opportunity to appear in person before a board of three military officers and provide factual data to support his release. The detainee will be provided a military officer to assist him. In addition, the review board will accept written information from the family and national government of the detainee. Based on all of this information, as well as submissions by other U.S. government agencies, the board will make a recommendation to England, who will decide whether to release, transfer or continue to detain the individual.
England has assembled a joint civilian and military team that is developing a detailed, comprehensive process to expedite the review of detainee records and establish review boards in the near future. This process will provide an annual review of each enemy combatant and will assist DoD [Department of Defense] in fulfilling its commitment to help ensure no one is detained any longer than is warranted, and that no one is released who remains a threat to our nation’s security. 
United States, Department of Defense, Office of the Assistant Secretary of Defense (Public Affairs), News Release, Navy Secretary to Oversee Enemy Combatant Admin Review, 23 June 2004.
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Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the prohibition on arbitrary imprisonment, stating:
347. Imprisonment refers to the arbitrary deprivation of an individual’s liberty without due process of law. The customary status of the prohibition of arbitrary imprisonment under international law initially developed from the laws of war and is supported by human rights instruments.
349. Not every minor infringement of liberty forms the material element of imprisonment as a crime against humanity; the deprivation of liberty must be of similar gravity and seriousness as the other crimes enumerated as crimes against humanity in Article 5 of the ECCC Law [Law on the Establishment of the ECCC (2001), as amended in 2004].
350. It must be shown that the perpetrator intended to arbitrarily deprive the individual of liberty, or that he [or she] acted in the reasonable knowledge that his or her actions were likely to cause the arbitrary deprivation of physical liberty. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 347 and 349–350.
[footnotes in original omitted]
The Trial Chamber also considered the offence of unlawful confinement, stating:
464. The elements of the offence of unlawful confinement under Article 6 of the ECCC Law are in substance the same as those of imprisonment under Article 5 of the ECCC Law (crimes against humanity).
465. Unlawful confinement of a civilian is expressly prohibited as a grave breach in [the 1949] Geneva Convention IV. … an initially lawful internment becomes unlawful if the detaining party fails to respect the detainee’s basic procedural rights ….
466. The jurisprudence of the ICTY has established that the requisite mental element for this offence, in common with all grave breaches of the Geneva Conventions, includes both culpable intent and recklessness. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 464–466.
[footnotes in original omitted]
Human Rights Committee
In its concluding observations on the third periodic report of the Democratic Republic of the Congo in 2006, the Human Rights Committee noted:
While an arrest must be authorized by a warrant issued by the public prosecutor’s office, such a warrant is often not produced, and although pretrial detention is not supposed to exceed 48 hours, such detention is often prolonged considerably beyond this limit. The Committee is also concerned that the civil and military security forces place detainees in unauthorized and/or secret holding cells or centres, often without allowing them to contact a lawyer or a member of their family (article 9 of the [1966 International Covenant on Civil and Political Rights]).
The State party should ensure that its practice with regard to detention and oversight of the legality of detention conforms to all the provisions of article 9 of the Covenant. All unauthorized holding cells or centres should be closed immediately.
Precise details on steps taken to ensure respect in practice for the rights of persons held in police custody, and on methods of supervising the conditions of such detention, should be provided in the next periodic report. 
Human Rights Committee, Concluding observations on the third periodic report of the Democratic Republic of the Congo, UN Doc. CCPR/C/COD/CO/3, 26 April 2006, § 19.
[emphasis in original]
Human Rights Committee
In Gorji-Dinka v. Cameroon in 2005, the Human Rights Committee considered claims by the author that, inter alia, his detention by Cameroon authorities from 31 May 1985 to 3 February 1986 was arbitrary and in breach of article 9, paragraph 1, of the 1966 International Covenant on Civil and Political Rights. The Human Rights Committee held:
In accordance with the Committee’s constant jurisprudence, “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law. This means that remand in custody must not only be lawful but reasonable and necessary in all the circumstances, for example to prevent flight, interference with evidence or the recurrence of crime. 
Human Rights Committee, Gorji-Dinka v. Cameroon, Views, 10 May 2005, § 5.1.
European Commission of Human Rights
In McVeigh, ONeill and Evans v. UK in 1981, the European Commission of Human Rights did not condemn the UK Arrest under Prevention of Terrorism Act, which allows detention based on the “examining officer’s appreciation” of the information available to him. 
European Commission of Human Rights, McVeigh, ONeill and Evans v. UK, Report, 18 March 1981, §§ 195 and 205.
European Court of Human Rights
In its judgment in Fox, Campbell and Hartley in 1990, the European Court of Human Rights, when considering the notion of “reasonable suspicion” when conducting an arrest of a person, stated:
The “reasonableness” of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c) [of the 1950 European Convention on Human Rights … The Court agrees … that having a “reasonable suspicion” presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will however depend upon all the circumstances.
As the Government pointed out, in view of the difficulties inherent in the investigation and prosecution of terrorist-type offences in Northern Ireland, the “reasonableness” of the suspicion justifying such arrests cannot always be judged according to the same standards as are applied in dealing with conventional crime. Nevertheless, the exigencies of dealing with terrorist crime cannot justify stretching the notion of “reasonableness” to the point where the essence of the safeguard secured by Article 5 § 1 (c) (art. 5-1-c) is impaired. 
European Court of Human Rights, Fox, Campbell and Hartley, Judgment, 30 August 1990, § 32.
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