Practice Relating to Rule 99. Deprivation of Liberty

Note: This document does not include practice on the detention of members of the armed forces as prisoners of war in accordance with Article 3 of the 1907 Hague Regulations, Article 4(A) of the 1949 Geneva Convention III and Article 44(1) of the 1977 Additional Protocol I.
Geneva Convention IV
Article 42 of the 1949 Geneva Convention IV provides: “The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.” 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 42.
Geneva Convention IV
According to Article 147 of the 1949 Geneva Convention IV, “unlawful confinement of a protected person” is a grave breach of this instrument. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 147.
European Convention on Human Rights
Article 5(1) of the 1950 European Convention on Human Rights provides: “Everyone has the right to liberty and security of person.” 
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: “Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.” 
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(1) of the 1969 American Convention on Human Rights provides: “Every person has the right to personal liberty and security.” Article 7(3) provides: “No one shall be subject to arbitrary arrest or imprisonment.” 
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(1) and (3).
African Charter on Human and Peoples’ Rights
Article 6 of the 1981 African Charter on Human and Peoples’ Rights provides: “Every individual shall have the right to liberty and to the security of his person … In particular, no one may be arbitrarily arrested or detained.” 
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: “No child shall be deprived of his or her liberty unlawfully or arbitrarily.” 
Convention on the Rights of the Child, adopted by the UN General Assembly, Res. 44/25, 20 November 1989, Article 37.
ICC Statute
Pursuant to Article 7(1)(e) of the 1998 ICC Statute, “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” is a crime against humanity “when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” 
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 7(1)(e).
The Statute also provides, in Article 8(2)(a)(vii), that “unlawful confinement” constitutes a war crime in international armed conflicts. 
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 8(2)(a)(vii).
Article 55(1)(d) of the Statute further provides: “In respect of an investigation under this statute, a person … [s]hall not be subjected to arbitrary arrest or detention”. 
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).
UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea
Article 9 of the 2003 UN-Cambodia Agreement Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea provides:
The subject-matter jurisdiction of the Extraordinary Chambers shall be the crime of genocide as defined in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, crimes against humanity as defined in the 1998 Rome Statute of the International Criminal Court and grave breaches of the 1949 Geneva Conventions and such other crimes as defined in Chapter II of the Law on the Establishment of the Extraordinary Chambers as promulgated on 10 August 2001. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 9.
In accordance with Article 2 of the Agreement, Cambodia’s Law on the Establishment of the ECCC (2001), as amended, further implements these provisions. 
Agreement between the UN and the Royal Government of Cambodia Concerning the Prosecution under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Phnom Penh, 6 June 2003, Article 2.
Kampala Convention
Article 9(1) of the 2009 Kampala Convention states:
State Parties shall protect the rights of internally displaced persons regardless of the cause of displacement by refraining from, and preventing, the following acts, amongst others:
c. … arbitrary detention. 
African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa, adopted in Kampala, Uganda, 23 October 2009, Article 9(1)(c).
Allied Control Council Law No. 10
Article II(1)(c) of the 1945 Allied Control Council Law No. 10 provides that “imprisonment … or other inhumane acts committed against any civilian population” is a crime against humanity. 
Allied Control Council Law No. 10: Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity, enacted by the Allied Control Council of Germany, composed of the United Kingdom of Great Britain and Northern Ireland, France, the United States of America and the Union of Soviet Socialist Republics, Berlin, 20 December 1945, Article II(1)(c).
Universal Declaration of Human Rights
Article 3 of the 1948 Universal Declaration of Human Rights provides: “Everyone has the right to life, liberty and security of person.” Article 9 provides: “No one shall be subjected to arbitrary arrest, detention or exile.” 
Universal Declaration of Human Rights, adopted by the UN General Assembly, Res. 217 A (III), 10 December 1948, Articles 3 and 9.
American Declaration on the Rights and Duties of Man
Article I of the 1948 American Declaration on the Rights and Duties of Man states: “Every Human Being has the right to … liberty and the security of his person.” 
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 I.
Cairo Declaration on Human Rights in Islam
Article 20 of the 1990 Cairo Declaration on Human Rights in Islam provides: “It is not permitted without legitimate reason to arrest an individual or to restrict his freedom.” 
Cairo Declaration on Human Rights in Islam, adopted at the 19th Session of the Islamic Conference of Foreign Ministers, Res. 49/19-P, Cairo, 5 August 1990, annexed to Letter dated 19 September 1990 from the permanent representative of Egypt to the UN addressed to the UN Secretary-General, UN Doc. A/45/421-S/21797, 20 September 1990, Article 20.
ICTY Statute
Article 2(g) of the 1993 ICTY Statute gives the Tribunal jurisdiction over grave breaches of the 1949 Geneva Conventions, expressly including the unlawful confinement of civilians. 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 2(g).
Under Article 7(e) of the ICTY Statute, “imprisonment” constitutes a crime against humanity “when committed in armed conflict, whether international or internal in character, and directed against any civilian population.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, adopted by the UN Security Council, Res. 827, 25 May 1993, as amended by Res. 1166, 13 May 1998 and by Res. 1329, 30 November 2000, Article 7(e).
ICTR Statute
Under Article 3(e) of the ICTR Statute, “imprisonment” constitutes a crime against humanity “when committed as part of a widespread and systematic attack against any civilian population on national, political, ethnic, racial or religious grounds.” 
Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law in the Territory of Rwanda and Rwandan citizens responsible for genocide and other such violations committed in the territory of neighbouring States between 1 January 1994 and 31 December 1994, adopted by the UN Security Council, Res. 955, 8 November 1994, as amended by Res. 1165, 30 April 1998, and by Res. 1329, 30 November 2000, Article 3(e).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Under Article 18(j) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind, “arbitrary imprisonment” constitutes a crime against humanity. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 18(j).
ILC Draft Code of Crimes against the Peace and Security of Mankind (1996)
Article 20(a)(vii) of the 1996 ILC Draft Code of Crimes against the Peace and Security of Mankind provides that “unlawful confinement of protected persons” is a war crime. 
Draft Code of Crimes against the Peace and Security of Mankind, adopted by the International Law Commission, reprinted in Report of the International Law Commission on the work of its forty-eighth session, 6 May–26 July 1996, UN Doc. A/51/10, 1996, Article 20(a)(vii).
Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines
Article 2(5) of Part III of the 1998 Comprehensive Agreement on Respect for Human Rights and IHL in the Philippines provides that the Agreement seeks to protect and promote the right to liberty, particularly against unwarranted and unjustified arrest and detention, and to effectively avail of the privilege of the writ of habeas corpus. 
Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, The Hague, 16 March 1998, Part III, Article 2(5).
EU Charter of Fundamental Rights
Article 6 of the 2000 EU Charter of Fundamental Rights provides: “Everyone has the right to liberty and security of person.” 
Charter of Fundamental Rights of the European Union, signed and proclaimed by the European Parliament, the Council and the Commission of the European Union, Nice, 7 December 2000, Article 6.
UNTAET Regulation No. 2000/15
The UNTAET Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(a)(vii), “unlawful confinement” constitutes a war crime in international armed conflicts. 
Regulation on the Establishment of Panels with Exclusive Jurisdiction over Serious Criminal Offences, UN Doc. UNTAET/REG/2000/15, Dili, 6 June 2000, Section 6(1)(a)(vii).
Argentina
Argentina’s Law of War Manual (1989) provides that illegal detention of protected persons is a grave breach of the 1949 Geneva Conventions and of the 1977 Additional Protocol I. 
Argentina, Leyes de Guerra, PC-08-01, Público, Edición 1989, Estado Mayor Conjunto de las Fuerzas Armadas, aprobado por Resolución No. 489/89 del Ministerio de Defensa, 23 April 1990, § 8.03.
Australia
Australia’s Commanders’ Guide (1994) states that unlawful confinement of a protected person is a grave breach of the 1949 Geneva Conventions and warrants the institution of criminal proceedings. 
Australia, Law of Armed Conflict, Commanders Guide, Australian Defence Force Publication, Operations Series, ADFP 37 Supplement 1 – Interim Edition, 7 March 1994, § 1305(d).
Australia
Australia’s LOAC Manual (2006) states:
Grave breaches under the Geneva Conventions consist of any of the following acts against persons or property protected under the provisions of the relevant Convention:
• … unlawful confinement. 
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 13.25.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) lists “unlawful detention” as a “grave breach” of IHL. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, p. 115; see also Part I bis, pp. 27 and 46.
Cameroon
Cameroon’s Instructor’s Manual (2006) states that “unlawful detention” constitutes a grave breach of IHL. 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 295, § 661.
Canada
Canada’s LOAC Manual (1999) states that it is a grave breach of the 1949 Geneva Conventions to “unlawfully confine a protected person”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 16-3, § 14(b).
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 “Aliens in the territory of a party to the conflict”, states:
1. If a state considers that the measures of control over protected persons provided in [the 1949 Geneva Convention IV] are inadequate, the most severe additional measure of control that may be imposed by that State is that of assigned residence or internment in accordance with the provisions of [the 1949 Geneva Convention IV].
2. A belligerent may order the internment of protected persons, or their being placed in assigned residences, only if security requirements make such a course absolutely necessary. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1125.1–2.
In the same chapter, in a section entitled “Treatment of internees”, the manual states:
1129. General
2. 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 …
1131. Release and repatriation of internees
1. Interned persons must be released by the detaining power as soon as the reasons which necessitated internment cease to exist. Internment must also cease as soon as possible after the close of hostilities. However, internees who are in the territory of a belligerent and who are undergoing a sentence of confinement or against whom penal (that is, judicial) proceedings for offences not exclusively subject to disciplinary penalties are pending, may be detained until the close of the proceedings or end of the sentence. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, §§ 1129.2 and 1131.
In the same chapter, in a section entitled “Additional Protocol I”, the manual further states:
Except in cases of arrest or detention for penal offences, [any person arrested, detained or interned for actions related to the armed conflict] shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.3.
In its chapter on “War crimes, individual criminal liability and command responsibility”, the manual states: “In the case of civilians in the hands of the adverse party, it is also a grave breach: … b. to unlawfully confine a protected person”. 
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1607.6.b.
Canada
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of force in international operations
401. Introduction
1. The use of force by members of the CF [Canadian Forces] during international operations depends on diplomatic, political, operational and legal factors as well as the nature of the operation.
402. Types of international operations
1. In general, there are four types of international operational relationships in which the CF may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces’ agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
2. When Canada is not acting unilaterally, the doctrine and concepts contained in this publication will underpin the use of force by Canadian forces during other types of international combined operations unless the CDS [Chief of the Defence Staff] specifically directs otherwise. When Canadian forces are in an alliance, coalition, or UN operation, the chain of command shall highlight the differences between Canadian doctrine and CDS authorized ROE and the doctrine and ROE issued by the alliance, coalition, or UN.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, §§ 401, 402 and 407.3–4.
Chad
Chad’s Instructor’s Manual (2006) states that “illegal detention” is a grave breach of the 1949 Geneva Conventions and thus a war crime. 
Chad, Droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces armées et de sécurité, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 108.
Colombia
Colombia’s Basic Military Manual (1995) provides: “It is prohibited to deprive [the civilian population] of its liberty (sequestration, enforced disappearances).” 
Colombia, Derecho Internacional Humanitario – Manual Básico para las Personerías y las Fuerzas Armadas de Colombia, Ministerio de Defensa Nacional, 1995, p. 30.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) states in Book III, Volume 1 (Instruction of first-year trainee officers):
IV.9. Internment camps
During a conflict, a State can decide to intern certain civilians in internment camps. This measure is generally taken in occupied territory, but it has happened that it concerns enemy civilians in the national territory; this was, for example, the case of Iraqi civilians interned by the British during the Gulf war. By and large, internees are treated like prisoners of war. Internment represents a considerable restriction of the individual freedoms. The measure is only authorized if the demands of security cannot be satisfied by less severe measures. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 37–38.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
I.3. War crimes
This is by far the breach which can take the most varied forms. It relates to the grave breaches of the 1949 Geneva Conventions, namely the following acts directed against the persons or objects protected by these acts:
- … unlawful confinement of a civilian. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 2: Instruction de l’élève officier d’active de 2ème année, Manuel de l’instructeur, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 44–45.
Croatia
Croatia’s LOAC Compendium (1991) provides that “unlawful confinement” is a grave breach of IHL and a war crime. 
Croatia, Compendium Law of Armed Conflicts, Republic of Croatia, Ministry of Defence, 1991, Annex 9, p. 56.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states with regard to “children in the justice system” that “parents or guardians of apprehended minors must be informed of their arrest … [A]rrested or detained minors have the same rights as adults, irrespective of the form of arrest or detention”. 
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, pp. 25–26; see also p. 46.
The manual also states: “‘No one shall be subjected to arbitrary arrest or detention.’ The International Covenant on Civil and Political Rights … , the African Charter on Human and Peoples’ Rights … and the national constitution … prohibit arbitrary arrest.” 
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. 45.
El Salvador
El Salvador’s Human Rights Charter of the Armed Forces states: “Any person has the right to liberty.” It further provides that “lengthy detention” is a violation of human rights. 
El Salvador, Derechos Humanos. Decálogo de la Fuerza Armada de El Salvador, Ministerio de la Defensa Nacional, Departamento de Derecho Humanitario, pp. 8 and 18.
France
France’s LOAC Summary Note (1992) provides that “illegal detention” is a grave breach of the 1949 Geneva Conventions. 
France, Fiche de Synthèse sur les Règles Applicables dans les Conflits Armés, Note No. 432/DEF/EMA/OL.2/NP, Général de Corps d’Armée Voinot (pour l’Amiral Lanxade, Chef d’Etat-major des Armées), 1992, § 3.4.
France
France’s LOAC Teaching Note (2000) provides: “Protected persons shall not be detained arbitrarily.” 
France, Fiche didactique relative au droit des conflits armés, Directive of the Ministry of Defence, 4 January 2000, annexed to the Directive No. 147 of the Ministry of Defence of 4 January 2000, p. 5.
France
France’s LOAC Manual (2001) provides under the heading “Interned persons”:
Decisions on internment are taken by military or administrative authorities, whereas decisions on detention in principle come under the competence of judicial authorities. The law of armed conflicts does not refer to the internment measures in the case of internal armed conflicts. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 95.
Germany
Germany’s Military Manual (1992) states that “illegal … confinement of protected civilians” is a grave breach of IHL. 
Germany, Humanitarian Law in Armed Conflicts – Manual, DSK VV207320067, edited by The Federal Ministry of Defence of the Federal Republic of Germany, VR II 3, August 1992, English translation of ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, August 1992, § 1209.
Germany
Germany’s Soldiers’ Manual (2006) states:
Civilians who do not take part in combat operations shall be respected and protected. They may neither be attacked nor killed, wounded or captured …
Internment of civilian persons is permissible only as an exception. 
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaffneten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der Verteidigung, R II 3, August 2006, p. 4.
Hungary
Hungary’s Military Manual (1992) states that “unlawful confinement” is a grave breach of IHL and a war crime. 
Hungary, A Hadijog, Jegyzet a Katonai, Föiskolák Hallgatói Részére, Magyar Honvédség Szolnoki Repülötiszti Föiskola, 1992, p. 90.
Netherlands
The Military Manual (1993) of the Netherlands provides that “unlawful confinement” is a grave breach of the 1949 Geneva Conventions and their 1977 Additional Protocols. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
Protected persons must be able to lead normal lives as far as possible.
Example:
- Captivity in war is not a punishment, but only a means of preventing the opponent from playing any further part in the conflict. 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0224(b).
In its chapter on peace operations, the manual states:
When carrying out its operational mission, the military may be confronted with the following and other human rights, which may affect what they do. The following is based on ECHR [1950 European Convention on Human Rights] and related protocols ratified by the Netherlands. In view of the detailed rules added by extensive legal precedents, this convention forms a basis for the fulfilment of the human rights established in other treaties, at least those with which the military may be involved in pursuit of their duties. Those human rights are as follows: 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1212.
New Zealand
New Zealand’s Military Manual (1992) provides that unlawful confinement of a protected civilian is a grave breach of the 1949 Geneva Conventions. 
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1702(3)(b).
Nicaragua
Nicaragua’s Military Manual (1996) provides: “Any person has the right to individual liberty.” 
Nicaragua, Manual de Comportamiento y Proceder de las Unidades Militares y de los Miembros del Ejército de Nicaragua en Tiempo de Paz, Conflictos Armados, Situaciones Irregulares o Desastres Naturales, Ejército de Nicaragua, Estado Mayor General, Asesoría Jurídica del Nicaragua, 1996, Article 4.
Nigeria
Nigeria’s Manual on the Laws of War states that “unlawful confinement” of persons protected under the 1949 Geneva Convention IV is a grave breach of the 1949 Geneva Conventions. 
Nigeria, The Laws of War, by Lt. Col. L. Ode PSC, Nigerian Army, Lagos, undated, § 6(c).
Peru
Peru’s IHL and Human Rights Manual (2010) states:
[The] right to personal liberty and integrity is one of the most important civil rights and is included in any human rights legislation, whether international or domestic. The violation of this right is related to the following guarantee: “The prohibition of unlawful deprivation of liberty.”
Forms of unlawful deprivation of personal liberty:
(a) Arbitrary detention
Detention is considered arbitrary when it is based on accusations that are not of a criminal nature and it constitutes an offence in all its forms.
Indefinite detention of persons without formulating concrete charges, without due process, without a legal representative and without effective means of defence undoubtedly constitutes a violation of the right to liberty and to due legal process.
As regards arbitrary detention, there are three forms:
1. Detention without judicial order.
2. Detention for political reasons.
3. Detention by the security forces in order to obtain information.
(b) Administrative detention
Detention takes the form of administrative detention when it is not based on criminal acts but on reasons of national security. It is imposed by executive order and without the intervention of the judicial power or any tribunal and it constitutes one of the forms of deprivation of liberty that is most widely denounced.
In order for administrative detention not to be arbitrary, it must fulfil the following conditions: that the detainee represents a “clear and serious threat” to society and that it is impossible to fend off this threat without resorting to administrative detention. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 32(a)–(b), pp. 49–50; see also § 105(h), p. 146.
Philippines
The Philippine National Police (PNP) Manual on Ethical Doctrine (1995) provides:
Respect for Human Rights – In the performance of duty, PNP members shall respect and protect human dignity and uphold the human rights of all persons. No member shall inflict, instigate or tolerate extrajudicial killings, arbitrary arrests, any act of torture or other cruel, inhuman or degrading treatment or punishment, and shall not invoke superior orders or exceptional circumstances such as a state-of-war, a threat to national security, internal political instability or any public emergency as a justification for committing such human rights violations. 
Philippines, Manual on Ethical Doctrine, PNPM-0-0-8-95 (DHRDD), Directorate for Human Resource and Doctrine Development, National Headquarters, Philippine National Police, Revised, August 1995 Edition, Section 2.9.
Philippines
The Philippine Army Soldier’s Handbook on Human Rights and International Humanitarian Law (2006) provides:
While not in combat:
3. As a general rule, arrest/search may be effected following the constitutional precepts found in Section 2 Article III of the Constitution to wit: Section 2 The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be personally determined by the judge after the examinations under oath of affirmation of the complainant and the witnesses he produces and particularly describing the place to be searched and persons or things to be seized.” There are situations, however when you can apprehend without warrant of arrest:
a. When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;
b. When an offense has in fact been committed and he has reasonable ground to believe that the person to be arrested has committed it; and
c. When the person to be arrested is a prisoner who has escaped [from] a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.
But generally, you cannot apprehend or detain a person arbitrar[ily], or just with a mere suspicion that he is insurgent. 
Philippines, Philippine Army Soldiers Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, pp. 54–55, § 3.
In its glossary, the Handbook further notes: “Arbitrary detention – The seizure [or] holding of a person in custody by means that do not conform to established human rights standards or that is perpetrated in pursuance of orders, legislation or practices that violate those standards.” 
Philippines, Philippine Army Soldiers Handbook on Human Rights and International Humanitarian Law, A Practical Guide for Internal Security Operations, 2006, p. 67, Glossary.
South Africa
South Africa’s LOAC Manual (1996) provides that “unlawful confinement of a protected person” is a grave breach of the 1949 Geneva Conventions. 
South Africa, Presentation on the South African Approach to International Humanitarian Law, Appendix A, Chapter 4: International Humanitarian Law (The Law of Armed Conflict), National Defence Force, 1996, § 40.
Switzerland
Switzerland’s Basic Military Manual (1987) provides that “illegal detention” of protected civilians is a grave breach of the 1949 Geneva Conventions. 
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 192(1)(c).
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
185 Mission orders must contain directives for the evacuation and internment of prisoners of war.
198 Foreign civilians or civilians of an adverse party to a conflict are specifically protected under the law of armed conflict. If they are in the hands of a military unit, they must at all times be treated humanely. … They must be turned over to the competent civilian authorities as quickly as possible. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 185 and 198.
[emphasis in original]
Ukraine
Ukraine’s IHL Manual (2004) states: “Serious violations of international humanitarian law directed against people include: … unlawful confinement (detention)”. 
Ukraine, Manual on the Application of IHL Rules, Ministry of Defence, 11 September 2004, § 1.8.5.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides that “unlawful confinement” of persons protected by the 1949 Geneva Convention IV is a grave breach of the Convention. 
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 625(c).
United States of America
The US Field Manual (1956) states that “unlawful confinement of a protected person” is a grave breach of the 1949 Geneva Conventions. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 502.
United States of America
The US Naval Handbook (2007) states:
Because unlawful combatants do not have combatant immunity, they may be prosecuted for their unlawful actions. However, prosecution is not required and unlawful combatants may be detained until the cessation of hostilities without being prosecuted for their acts. If prosecuted and convicted, unlawful combatants may be detained for the duration of their sentence, even if it extends beyond the cessation of hostilities. Likewise, even if their criminal sentence has been served but hostilities have not ceased, they may be held until the cessation of hostilities. Regardless of the fact that hostilities have not ceased or the full sentence has not been served, a detaining nation may release an unlawful combatant at any time. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 11.3.2.
The Handbook defines unlawful enemy combatants as “persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during armed conflict”. 
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 5.4.1.2.
Afghanistan
Afghanistan’s Presidential Decree on Good Governance (2012) states:
Ch. 1
Article 11. The judicial institutions are instructed that no individual by no means shall be arrested or detained without legal basis nor shall be detained more than the period s/he was sentenced by court. …
Ch. 6. General Attorney Office:
Article 1. [With]in one month, all individuals, kept in detention centers, shall be scrutinized by the concerned attorneys’ offices [to] prevent … arbitrary detention (detention without evidence and proof) and [they shall] present [a] complete list of detainees, explaining their charges, to the Judicial and Justice Committee. 
Afghanistan, Presidential Decree on Good Governance, 2012, Chapter 1, Article 11, and Chapter 6, Article 1.
Argentina
Argentina’s Law on the Protection of Children’s and Adolescents’ Rights (2005) states: “Children and adolescents have the right to liberty … [They] cannot be deprived of [their liberty] unlawfully or arbitrarily.” 
Argentina, Law on the Protection of Childrens and Adolescents Rights, 2005, Article 19.
Armenia
Under Armenia’s Penal Code (2003), “unlawful … confinement of a protected person, or any other unlawful deprivation of freedom”, during an armed conflict, constitutes a crime against the peace and security of mankind. 
Armenia, Penal Code, 2003, Article 390.2(4); see also Article 392 (illegal arrest as a crime against humanity).
Australia
Under Australia’s War Crimes Act (1945), as amended in 2001, the internment of a person in a death camp or a slave labour camp is a serious war crime. 
Australia, War Crimes Act, 1945, as amended 2001, Section 6.
Australia
Australia’s Geneva Conventions Act (1957), as amended in 2002, provides: “A person who, in Australia or elsewhere, commits a grave breach of any of the [1949 Geneva] Conventions … is guilty of an indictable offence.” 
Australia, Geneva Conventions Act, 1957, as amended in 2002, Section 7(1).
The grave breaches provisions in this Act were removed in 2002 and incorporated into the Criminal Code Act 1995.
Australia
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to war crimes that are grave breaches of the 1949 Geneva Conventions and of the 1977 Additional Protocol I:
War crime – unlawful confinement
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator unlawfully confines or continues to confine one or more persons to a certain location; and
(b) the person or persons are protected under one or more of the Geneva Conventions or under Protocol I to the Geneva Conventions; and
(c) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the person or persons are so protected; and
(d) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 17 years.
(2) Strict liability applies to paragraph (1)(b). 
Australia, Criminal Code Act, 1995, as amended to 2007, Chapter 8, § 268.33, pp. 324–325.
Australia
Australia’s ICC (Consequential Amendments) Act (2002) incorporates in the Criminal Code the war crimes defined in the 1998 ICC Statute, including “unlawful confinement” in international armed conflicts. 
Australia, ICC (Consequential Amendments) Act, 2002, Schedule 1, § 268.33.
Azerbaijan
Azerbaijan’s Criminal Code (1999) provides that “the arrest or deprivation of liberty of people contrary to the norms of international law” as well as “deprivation of procedural rights” is a war crime. 
Azerbaijan, Criminal Code, 1999, Articles 112 and 116.0.18.
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).
Barbados
The Geneva Conventions Act (1980) of Barbados provides:
A person who commits a grave breach of any of the Geneva Conventions of 1949 … may be tried and punished by any court in Barbados that has jurisdiction in respect of similar offences in Barbados as if the grave breach had been committed in Barbados. 
Barbados, Geneva Conventions Act, 1980, Section 3(2).
Belgium
Belgium’s Law concerning the Repression of Grave Breaches (1993) of the Geneva Conventions and their Additional Protocols as amended in 1999 provides that unlawful detention of a civilian person constitutes a crime under international law. 
Belgium, Law concerning the Repression of Grave Breaches of the Geneva Conventions and their Additional Protocols, 1993, as amended in 1999, Article 1(1)(6); see also Article 1(2)(5)(crime against humanity).
Bosnia and Herzegovina
The Federation of Bosnia and Herzegovina’s Criminal Code (1998) provides that “illegal arrests and detention” are war crimes. 
Bosnia and Herzegovina, Federation, Criminal Code, 1998, Article 154(1).
The Republika Srpska’s Criminal Code (2000) contains the same provision. 
Bosnia and Herzegovina, Republika Srpska, Criminal Code, 2000, Article 433(1).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Code (2003) criminalizes the following acts as a crime against humanity:
Whoever, as part of a widespread or systematic attack directed against any civilian population, with knowledge of such an attack, perpetrates any of the following acts:
e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 172(1)(e).
The Criminal Code also states that, in time of war, armed conflict or occupation, ordering or committing “unlawful confinements in concentration camps and other illegal arrests and detention”, in violation of international law, constitutes a war crime. 
Bosnia and Herzegovina, Criminal Code, 2003, Article 173(1)(e).
Botswana
Botswana’s Geneva Conventions Act (1970) punishes “any person, whatever his nationality, who, whether in or outside Botswana, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] conventions”. 
Botswana, Geneva Conventions Act, 1970, Section 3(1).
Bulgaria
Bulgaria’s Penal Code (1968), as amended in 1999 provides that ordering and committing unlawful detention is a war crime. 
Bulgaria, Penal Code, 1968, as amended in 1999, Article 412(c).
Burundi
Burundi’s Law on Genocide, Crimes against Humanity and War Crimes (2003) states:
[The following are] considered as war crimes:
A. Grave breaches of the Geneva Conventions of 8 August 1949, namely, any of the following acts aimed at persons or objects protected by the provisions of the Geneva Conventions:
g) … unlawful confinement. 
Burundi, Law on Genocide, Crimes against Humanity and War Crimes, 2003, Article 4(A)(g); see also Article 3(e) (crimes against humanity).
Burundi
Burundi’s Penal Code (2009) states:
“War crimes” means crimes which are committed as part of a plan or policy or as part of a large-scale commission of such crimes, in particular:
1. Any of the following grave breaches of the 1949 Geneva Conventions … :
7°. … [U]nlawful confinement. 
Burundi, Penal Code, 2009, Article 198(1)(7°).
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001) provides:
The Extraordinary Chambers shall have the power to bring to trial all suspects who committed or ordered the commission of grave breaches of the Geneva Convention[s] of 12 August 1949 … which were committed during the period from 17 April 1975 to 6 January 1979. 
Cambodia, Law on the Establishment of the ECCC, 2001, Article 6.
Cambodia
Cambodia’s Law on the Establishment of the ECCC (2001), as amended in 2004, provides:
Article 6
The Extraordinary Chambers shall have the power to bring to trial all Suspects who committed or ordered the commission of grave breaches of the Geneva Conventions of 12 August 1949, such as the following acts against persons or property protected under provisions of these Conventions, and which were committed during the period 17 April 1975 to 6 January 1979:
• …
• … unlawful confinement of a civilian. 
Cambodia, Law on the Establishment of the ECCC, 2001, as amended in 2004, Article 6.
Canada
Canada’s Geneva Conventions Act (1985), as amended in 2007, provides: “Every person who, whether within or outside Canada, commits a grave breach [of the 1949 Geneva Conventions] … is guilty of an indictable offence.” 
Canada, Geneva Conventions Act, 1985, as amended in 2007, Section 3(1).
Canada
Canada’s Crimes against Humanity and War Crimes Act (2000) provides that the war crimes defined in Article 8(2) of the 1998 ICC Statute are “crimes according to customary international law” and, as such, indictable offences under the Act. 
Canada, Crimes against Humanity and War Crimes Act, 2000, Section 4(1) and (4).
China
China’s Law Governing the Trial of War Criminals (1946) provides that “making indiscriminate mass arrests” constitutes a war crime. 
China, Law Governing the Trial of War Criminals, 1946, Article 3(32).
China
China’s Criminal Law (1979), as amended in 1997, states:
Article 238 Whoever unlawfully detains another person or unlawfully deprives the personal freedom of another person by any other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, public surveillance or deprivation of political rights. If he resorts to battery or humiliation, he shall be given a heavier punishment.
Whoever commits the crime mentioned in the preceding paragraph and causes serious injury to the victim shall be sentenced to fixed-term imprisonment of not less than three years but not more than 10 years; if he causes death to the victim, he shall be sentenced to fixed-term imprisonment of not less than 10 years. If he causes injury, disability or death to the victim by violence, he shall be convicted and punished in accordance with the provisions of Article 234 or 232 of this Law.
Whoever unlawfully detains or confines another person in order to get payment of a debt shall be punished in accordance with the provisions of the preceding two paragraphs.
Where a functionary of a State organ commits any of the crimes mentioned in the preceding three paragraphs by taking advantage of his functions and powers, he shall be given a heavier punishment in accordance with the provisions in the preceding three paragraphs correspondingly. 
China, Criminal Law, 1979, as amended in 1997, Article 238.
China
China’s Constitution (1982), as amended in 2004, states:
Freedom of the person of citizens of the People’s Republic of China is inviolable.
No citizen may be arrested except with the approval or by decision of a people’s procuratorate or by decision of a people’s court, and arrests must be made by a public security organ.
Unlawful detention or deprivation or restriction of citizens’ freedom of the person by other means is prohibited, and unlawful search of the person of citizens is prohibited. 
China, Constitution, 1982, as amended in 2004, Article 37.
Colombia
Colombia’s Penal Code (2000) imposes a criminal sanction on anyone who, during an armed conflict, carries out or orders the illegal detention of a protected person. 
Colombia, Penal Code, 2000, Article 149.
Colombia
Colombia’s Criminal Procedure Code (2004) states: “Every person has the right to respect for his or her liberty.” 
Colombia, Criminal Procedure Code, 2004, Article 1.
Congo
The Congo’s Genocide, War Crimes and Crimes against Humanity Act (1998) defines war crimes with reference to the categories of crimes defined in Article 8 of the 1998 ICC Statute. 
Congo, Genocide, War Crimes and Crimes against Humanity Act, 1998, Article 4.
Cook Islands
The Geneva Conventions and Additional Protocols Act (2002) of the Cook Islands punishes “any person who in the Cook Islands or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions”. 
Cook Islands, Geneva Conventions and Additional Protocols Act, 2002, Section 5(1).
Côte d’Ivoire
Under Côte d’Ivoire’s Penal Code (1981), as amended in 1995, organizing, ordering or carrying out, in time of war or occupation, systematic detention of the civilian population in concentration camps constitutes a “crime against the civilian population”. 
Côte d’Ivoire, Penal Code, 1981, as amended in 1995, Article 138(3).
Croatia
Croatia’s Criminal Code (1997) provides that unlawful confinement of civilians is a war crime. 
Croatia, Criminal Code, 1997, Article 158(1).
Croatia
Croatia’s Criminal Code (1997), as amended to 2006, states that the “unlawful deportations [of civilians] to concentration camps or illegal detention” is a war crime. 
Croatia, Criminal Code, 1997, as amended to 2006, Article 158(1).
Cyprus
Cyprus’s Geneva Conventions Act (1966) punishes “any person who, whatever his nationality, commits in the Republic or outside the Republic, any grave breach or takes part, or assists or incites another person in the commission of grave breaches of the 1949 Geneva Conventions”. 
Cyprus, Geneva Conventions Act, 1966, Section 4(1).
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Code of Military Justice (1972), as amended in 1978, provides for the punishment of anyone who, in the course of hostilities, without order from the authorities and except when the law so provides, arrests, detains or confines any person. 
Democratic Republic of the Congo, Code of Military Justice as amended, 1972, Article 527.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Penal Code (2002) provides:
Article 165
Crimes against humanity are grave violations of international humanitarian law committed against any civilian population before or during war.
Crimes against humanity are not necessarily linked to the state of war and can be committed not only between persons of different nationality, but even between subjects of the same State.
Article 166
The grave breaches listed hereafter, affecting, by action or omission, the persons and objects protected by the Geneva Conventions of 12 August 1949 and the Additional Protocols of 8 June 1977, constitute crimes against humanity, repressed according to the provisions of the present Code, without prejudice to more severe penal provisions provided by the ordinary Penal Code:
5. Unlawful deportation, transfer or displacement, unlawful confinement of a civilian person protected by the Conventions or the Additional Protocols;
Article 167
The offences contained in the preceding article are punished with penal servitude for life.
If those contained in points 1, 2, 5, 6, 10 to 14 of the same article lead to the death or cause grave injury to the physical integrity or health of one or several persons, the perpetrators are liable to the death penalty.
Article 169
Any of the following acts, perpetrated as part of a widespread or systematic attack knowingly directed against the Republic or the civilian population, equally constitutes a crime against humanity and is punished by death, whether committed in time of peace or in time of war:
5. Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
Article 193
Whoever, during hostilities, without order of the established authorities and except for the cases where the law orders the seizing of a defendant, arrests, detains or illegally confines any persons, shall be punished by fifteen to twenty years of penal servitude.
Whoever lends a locality for the execution of the detention or illegal confinement shall be subject to the same penalty.
If the detention or illegal confinement has lasted more than fifteen days, the penalty shall be penal servitude for life.
Article 194
Whoever, during hostilities, proceeds, in false attire, under a false name or with a false order of public authority, to the arrest, illegal confinement or detention of an individual, or if the arrested, detained or illegally confined individual is threatened with death, shall be punished with penal servitude for life.
The death penalty shall be applicable if the victims of arrest, detention or illegal confinement were submitted to corporal torture. 
Democratic Republic of the Congo, Military Penal Code, 2002, Articles 165–167, 169 and 193–194.
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).
El Salvador
El Salvador’s Penal Code (1997), as amended to 2008, which contains a section on the violations of the laws or customs of war, states in its general provisions: “No punishment or security measure that affects the rights and freedoms of a person can be imposed”. 
El Salvador, Penal Code, 1997, as amended to 2008, Article 2.
The Penal Code further states:
Art. 148.- Anyone who deprives a person of his or her individual freedom will be sanctioned with three to six years of prison.
Art. 149-A.- Soliciting the commission of, and conspiring to commit, any of the acts described in the previous two articles [Art. 148 Deprivation of Liberty and Art. 149 Kidnapping] will be in the latter case sanctioned with one to three years of prison, and in the former with ten to twenty years of prison.
Aggravated Interference with Individual Freedom
Art. 150.- The corresponding sentence for the offences described in the previous articles will increase by a third of the maximum [amount] in the following cases:
7) If [the offence] is carried out [against] a person that is owed special protection by El Salvador according to the rules of international law. 
El Salvador, Penal Code, 1997, as amended to 2008, Articles 148 and 149A–150(7).
Ethiopia
Ethiopia’s Penal Code (1957) provides that illegal detention in concentration camps is a war crime against the civilian population. 
Ethiopia, Penal Code, 1957, Article 282(c).
Finland
Finland’s Criminal Code (1889), as amended in 2008, provides that any person who “holds in unlawful detention … the population or parts thereof” shall be “sentenced for a war crime to imprisonment for at least one year or for life”. 
Finland, Criminal Code, 1889, as amended in 2008, Chapter 11, Section 5(1)(12).
(emphasis in original)
Georgia
Under Georgia’s Criminal Code (1999), the unlawful confinement of a protected person constitutes a crime in both international and non-international armed conflicts. 
Georgia, Criminal Code, 1999, Article 411(2)(f).
Germany
Germany’s Law Introducing the International Crimes Code (2002) punishes anyone who, in connection with an international armed conflict, unlawfully holds a protected person as prisoner. 
Germany, Law Introducing the International Crimes Code, 2002, Article 1, § 8(3)(1).
India
India’s Geneva Conventions Act (1960) provides: “If any person within or without India commits or attempts to commit, or abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] Conventions he shall be punished.” 
India, Geneva Conventions Act, 1960, Section 3(1).
Iraq
Under Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005), “[u]nlawful confinement” constitutes a grave breach of the 1949 Geneva Conventions. 
Iraq, Law of the Supreme Iraqi Criminal Tribunal, 2005, Article 13(1)(G).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that grave breaches of the 1949 Geneva Conventions are punishable offences. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 3(1).
Israel
Israel’s Internment of Unlawful Combatants Law (2002), as amended in 2008, states:
3. (a) Where an officer with the rank of at least major and the function appointed by the Chief of Staff has a reasonable basis to believe that the person brought before him is an unlawful combatant, he may direct that such person be interned until decision is made regarding issuance of an internment order (in this Law – temporary internment order).
7. With regard to this law, a person who is a member of a force that carries out hostilities against the State of Israel or who took part in the hostilities of such a force, whether directly or indirectly, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved. 
Israel, Internment of Unlawful Combatants Law, 2002, as amended in 2008, Articles 3(a) and 7.
Israel
Israel’s Order Concerning Administrative Detention (2007) states:
1. (a) If the IDF forces commander in the area or the military commander authorized by him for the purpose of this Order (hereinafter: Military Commander) has reasonable basis to believe that for reasons of security of the area or public security it is necessary to hold a certain person in detention, he is entitled, by a warrant signed by him, to have that person arrested for a period that will be written on the warrant which will not exceed six months (hereinafter: Arrest Warrant).
(b) If the Military Commander has reasonable basis to believe, before the end of the period of the Arrest Warrant, as per sub para (a), that for reasons of security of the area or public security the detainee should continue to be held in detention, he is entitled, as per the Warrant signed by him, to order from time to time an extension of the period of the original Arrest Warrant for a period that will not exceed six months, and the extension will be as legal as the original Arrest Warrant to all extents and purposes.
(c) An Arrest Warrant as per this para can be given also without the presence of the person to whom the arrest applies.
4. (a) A person detained according to this Order will be brought within 8 days of his above mentioned arrest before a judge, in accordance with para. 3(b)(1) of the Order concerning Security Provisions (Judea and Samaria) (No 378), 1970 (hereafter: The Security Provisions Order), with a rank no lower than Major. The judge may confirm or annul the Arrest Warrant, or shorten the detention period stated in it;
If the detainee was not brought before a judge, and court proceedings not begun within the above mentioned 8 days, the detainee shall be released, unless according to any law or security legislation there is another reason for his detention.
(b) The judge shall annul the Arrest Warrant if it is proven that it was issued on grounds other than security of the area or public security considerations, or that it was not issued in good faith or that its issue was based on irrelevant considerations. 
Israel, Order Concerning Administrative Detention, 2007, Sections 1 and 4.
Jordan
Jordan’s Military Penal Code (2002) states that the following shall be deemed a war crime when committed in the event of armed conflict: “Unlawful confinement of civilian persons protected by the Fourth Geneva Convention”. 
Jordan, Military Penal Code, 2002, Article 41(a)(7).
Kenya
Kenya’s Geneva Conventions Act (1968) punishes “any person, whatever his nationality, who, whether within or outside Kenya commits, or aids, abets or procures the commission by any other person of any grave breach of any of the [1949 Geneva] Conventions”. 
Kenya, Geneva Conventions Act, 1968, Section 3(1).
Kenya
Kenya’s Constitution (1992) provides: “No person may be deprived of his personal liberty save as may be authorized by law.” 
Kenya, Constitution, 1992, Article 72.
Luxembourg
Under Luxembourg’s Law on the Punishment of Grave Breaches (1985), the detention of a protected person contrary to the provisions of the 1949 Geneva Convention III and the 1949 Geneva Convention IV is a grave breach of these instruments. 
Luxembourg, Law on the Punishment of Grave Breaches, 1985, Article 1(7).
Malawi
Malawi’s Geneva Conventions Act (1967) punishes “any person, whatever his nationality, who, whether within or without Malawi commits or aids, abets or procures the commission by any other person of any such grave breach of any of the [1949 Geneva] Conventions”. 
Malawi, Geneva Conventions Act, 1967, Section 4(1).
Malaysia
Malaysia’s Geneva Conventions Act (1962) punishes “any person, whatever his citizenship or nationality, who, whether in or outside the Federation, commits, or aids, abets or procures the commission by any other person of any such grave breach of any of the … [1949 Geneva] conventions”. 
Malaysia, Geneva Conventions Act, 1962, Section 3(1).
Mali
Under Mali’s Penal Code (2001), “illegal detention of protected persons is a war crime”. 
Mali, Penal Code, 2001, Article 31(g); see also Article 29(e) (illegal imprisonment as a crime against humanity).
Mauritius
The Geneva Conventions Act (1970) of Mauritius punishes “any person who in Mauritius or elsewhere commits, or is an accomplice in the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions”. 
Mauritius, Geneva Conventions Act, 1970, Section 3(1).
Morocco
Morocco’s Penal Code (1962) provides:
Article 225
Any magistrate, public official, agent or holder of public authority or power who orders or commits any arbitrary act attacking either the individual liberty or civil rights of one or more citizens, is punished with the loss of his civil rights.
If he justifies his act by an order of his hierarchical superiors in an area of their competence, for which he owed them obedience, he benefits from an absolving excuse. In that case, the penalty is only applied to the superiors who have given the order. 
Morocco, Penal Code, 1962, Article 225.
Myanmar
Myanmar’s Defence Service Act (1959) provides for the punishment of “any person subject to this law who … unnecessarily detains a person in arrest or confinement”. 
Myanmar, Defence Services Act, 1959, Section 49(a).
Nepal
Nepal’s Terrorist and Disruptive Activities (Control and Punishment) Ordinance (2006) provides regarding preventive detention:
1) If there are reasonable grounds to believe that any person must be prevented from committing any acts that could result in a terrorist and disruptive act, the Security Official may issue an order to hold such person under preventive detention in a humane place for a period not exceeding 6 months. If there are grounds to believe that the person held under preventive detention must be prevented from committing any terrorist activities for an additional period, the Security Official, having approval of His Majesty’s Government Ministry of Home Affairs, may, under this Section, issue an order to hold him under preventive detention for another six months.
2) For the purpose of issuing a detention order in accordance with Sub-Section (1), information received from any individual, institution or agency in respect of such person, his activities, acts performed by him in his capacity as a member or official of any terrorist organization or any act as prescribed or ordered by such organization or any responsibility as has been assigned to him or as accepted by him or other similar acts that may indicate his involvement in terrorist and disruptive acts shall be considered “reasonable grounds”. 
Nepal, Terrorist and Disruptive Activities (Control and Punishment) Ordinance, 2006, Section 9.
Netherlands
Under the International Crimes Act (2003) of the Netherlands, it is a crime to commit in an international armed conflict grave breaches of the 1949 Geneva Conventions, including “unlawful confinement” of persons protected by the Conventions. 
Netherlands, International Crimes Act, 2003, Article 5(1)(g); see also Article 4(1)(e) (imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law as a crime against humanity).
New Zealand
New Zealand’s Geneva Conventions Act (1958), as amended in 1987, provides: “Any person who in New Zealand or elsewhere commits, or aids or abets or procures the commission by another person of, a grave breach of any of the [1949 Geneva] Conventions … is guilty of an indictable offence.” 
New Zealand, Geneva Conventions Act, 1958, as amended in 1987, Section 3(1).
New Zealand
Under New Zealand’s International Crimes and ICC Act (2000), war crimes include the crimes defined in Article 8(2)(a)(vii) of the 1998 ICC Statute. 
New Zealand, International Crimes and ICC Act, 2000, Section 11(2).
Nicaragua
Nicaragua’s Military Penal Code (1996) provides for the punishment of “illegal detention of civilians”. 
Nicaragua, Military Penal Code, 1996, Article 58.
Niger
According to Niger’s Penal Code (1961), as amended in 2003, the illegal detention of a person protected by the 1949 Geneva Convention IV or the 1977 Additional Protocols is a war crime. 
Niger, Penal Code, 1961, as amended in 2003, Article 208.3(6).
Nigeria
Nigeria’s Geneva Conventions Act (1960) punishes any person who “whether in or outside the Federation, … whatever his nationality, commits, or aids, abets or procures any other person to commit any such grave breach of any of the [1949 Geneva] Conventions”. 
Nigeria, Geneva Conventions Act, 1960, Section 3(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).
Norway
Norway’s Penal Code (1902), as amended in 2008, states: “Any person is liable to punishment for a war crime who in connection with an armed conflict … in violation of international law … unlawfully confines a protected person.” 
Norway, Penal Code, 1902, as amended in 2008, § 103(h).
The Penal Code further states: “A protected person is a person who does not take, or who no longer takes, active part in hostilities, or who is otherwise protected under international law.” 
Norway, Penal Code, 1902, as amended in 2008, § 103.
Papua New Guinea
Papua New Guinea’s Geneva Conventions Act (1976) punishes any “person who, in Papua New Guinea or elsewhere, commits a grave breach of any of the 1949 Geneva Conventions”. 
Papua New Guinea, Geneva Conventions Act, 1976, Section 7(2).
Paraguay
Under Paraguay’s Military Penal Code (1980), abduction is a crime. 
Paraguay, Military Penal Code, 1980, Articles 287–288.
Paraguay
Paraguay’s Penal Code (1997) punishes anyone who, in violation of the international laws of war, armed conflict or military occupation, deprives members of the civilian population, the wounded and sick, or prisoners of war of their freedom. 
Paraguay, Penal Code, 1997, Article 320(5).
Peru
Peru’s Regulations to the Law on Internal Displacement (2005) states:
Internally displaced persons who return to their places of habitual residence or who have resettled in another part of the country have a right to:
f) be protected against … arbitrary detention … and [unlawful] confinement;
g) be protected against unlawful detention and unjustified arrest warrants. 
Peru, Regulations to the Law on Internal Displacement, 2005, Article 6(f)–(g).
Peru
Peru’s Code of Military and Police Justice (2006) states:
Any member of the military or police shall be imprisoned for a period of no less than five and no more than 15 years if he or she in the context of an international armed conflict:
1. Keeps a protected person in unlawful confinement … In less serious cases, the penalty shall be of no less than two and no more than five years. 
Peru, Code of Military and Police Justice, 2006, Article 93(1).
This article is no longer in force. Along with certain other articles in this legislation, it was declared unconstitutional by the Constitutional Court (en banc decision for case file No. 0012-2006-PI-TC, 8 January 2007) because it does not stipulate a crime committed in the line of duty that would fall under the jurisdiction of a military court pursuant to Article 173 of Peru’s Constitution.
Peru
Peru’s Military and Police Criminal Code (2010), in a chapter entitled “Crimes against persons protected by international humanitarian law”, states:
A member of the military or the police shall be punished with deprivation of liberty of not less than five years and not more than ten years if, in a state of emergency and when the Armed Forces assume control of the internal order, he or she:
1. Subjects a person protected by International Humanitarian Law to unlawful confinement. 
Peru, Military and Police Criminal Code, 2010, Article 90(1).
In a chapter entitled “Proceedings in times of armed conflict”, the Code also states:
Article 416. - Proceedings
The procedure to be followed in proceedings during international armed conflicts shall be subject to the rules established for ordinary proceedings to the extent that they apply.
Article 417.- Rules
In these proceedings, the following rules shall be observed:
1. The accused shall remain in detention. 
Peru, Military and Police Criminal Code, 2010, Articles 416–417(1).
In a chapter entitled “Penal enforcement”, the Code states:
The enforcement of a punishment of deprivation of liberty shall be carried out in accordance with the guarantees and limits established by the Political Constitution of the State [of Peru], the present Law, military and police regulations as well as judicial decisions. 
Peru, Military and Police Criminal Code, 2010, Article 458.
Philippines
The Philippines’ Republic Act No. 8438 (1997) provides: “The regional government [of the Cordillera Autonomous Region] shall take measures to prevent torture; other cruel, inhuman, and degrading treatment or punishment; and illegal detention and extra-judicial executions.” 
Philippines, Republic Act No. 8438, 1997, Section 27.
Poland
Poland’s Constitution (1997) states:
Article 41
1. Personal inviolability and security shall be ensured to everyone. Any deprivation or limitation of liberty may be imposed only in accordance with principles and under procedures specified by statute.
2. Anyone deprived of liberty, except by sentence of a court, shall have the right to appeal to a court for immediate decision upon the lawfulness of such deprivation. Any deprivation of liberty shall be immediately made known to the family of, or a person indicated by, the person deprived of liberty.
3. Every detained person shall be informed, immediately and in a manner comprehensible to him, of the reasons for such detention. The person shall, within 48 hours of detention, be given over to a court for consideration of the case. The detained person shall be set free unless a warrant of temporary arrest issued by a court, along with specification of the charges laid, has been served on him within 24 hours of the time of being given over to the court’s disposal.
4. Anyone deprived of liberty shall be treated in a humane manner.
5. Anyone who has been unlawfully deprived of liberty shall have a right to compensation. 
Poland, Constitution, 1997, Article 41.
Poland
Poland’s Penal Code (1997) provides for the punishment of any person who, in violation of international law, deprives persons hors de combat, protected persons and persons enjoying international protection of their liberty. 
Poland, Penal Code, 1997, Article 124.
Portugal
Under Portugal’s Penal Code (1996), in times of war, armed conflict or occupation, prolonged and unjustified restriction of the liberty of the civilian population, the wounded and sick, or prisoners of war is a war crime. 
Portugal, Penal Code, 1996, Article 241(1)(g).
Republic of Korea
The ICC Act (2007) of the Republic of Korea provides for the punishment of crimes listed in the 1998 ICC Statute, including “[i]mprisonment or other severe deprivation of physical liberty in violation of international law” as a crime against humanity and the war crime of “[u]nlawfully confining or continuing to confine a person who is to be protected under international humanitarian law to a certain location” in an international armed conflict. 
Republic of Korea, ICC Act, 2007, Articles 9(2)(4) and 10(5)(1).
Republic of Moldova
The Republic of Moldova’s Penal Code (2002) punishes “grave breaches of international humanitarian law committed during international and non-international armed conflicts”. 
Republic of Moldova, Penal Code, 2002, Article 391.
Romania
Romania’s Penal Code (1968) provides for the punishment of the illegal detention of the wounded, sick and shipwrecked, members of civil medical services, the Red Cross or similar organizations, prisoners of war, or of all persons in the hands of the adverse party. 
Romania, Penal Code, 1968, Article 358(d).
Senegal
Senegal’s Penal Code (1965), as amended in 2007, states:
[a)] Any of the following acts constitutes a war crime if it concerns members of the armed forces, the wounded, sick or shipwrecked, prisoners of war or civilians or objects protected by the provisions of the Geneva Conventions of 12 August 1949:
6. … unlawful confinement. 
Senegal, Penal Code, 1965, as amended in 2007, Article 431-3(a)(6).
Serbia
Serbia’s Criminal Code (2005) states that, in time of war, armed conflict or occupation, ordering or committing the unlawful “deprivation of freedom”, or “detention” of the civilian population, in violation of international law, constitutes a war crime. 
Serbia, Criminal Code, 2005, Article 372(1); see also Article 132.
Seychelles
The Geneva Conventions Act (1985) of the Seychelles punishes “any person, whatever his nationality, who whether in or outside Seychelles, commits, or aids, abets or procures the commission by any other person of, any such grave breach of any of the [1949 Geneva] Conventions”. 
Seychelles, Geneva Conventions Act, 1985, Section 3(1).
Sierra Leone
Sierra Leone’s Constitution (1991) states:
CHAPTER III – THE RECOGNITION AND PROTECTION OF FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS OF THE INDIVIDUAL
17. Protection from arbitrary arrest or detention.
(1) No person shall be deprived of his personal liberty except as may be authorised by law in any of the following cases …
29. Public Emergency.
(2) The President may issue a Proclamation of a state of public emergency only when –
a. Sierra Leone is at war; [or]
b. Sierra Leone is in imminent danger of invasion or involvement in a state of war; or
c. there is actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof to such an extent as to require extraordinary measures to restore peace and security; or
d. there is a clear and present danger of an actual breakdown of public order and public safety in the whole of Sierra Leone or any part thereof requiring extraordinary measures to avert the same; or
e. there is an occurrence of imminent danger, or the occurrence of any disaster or natural calamity affecting the community or a section of the community in Sierra Leone; or
f. there is any other public danger which clearly constitutes a threat to the existence of Sierra Leone.
(5) During a period of public emergency, the President may make such regulations and take such measures as appear to him to be necessary or expedient for the purpose of maintaining and securing peace, order and good government in Sierra Leone or any part thereof.
(6) Without derogating from the generality of the powers conferred by subsection (5) and notwithstanding the provisions of this Chapter, the regulations or measures may, so far as appears to the President to be necessary or expedient for any of the purposes mentioned in that subsection –
Sierra Leone
Sierra Leone’s Geneva Conventions Act (2012) states:
2. Grave breaches of the [1949 Geneva] Conventions and the [1977] First [Additional] Protocol.
(1) A person of whatever nationality commits an offence if that person, whether within or outside Sierra Leone[,] commits, aids, abets or procures any other person to commit a grave breach specified in –
(d) article 147 of the Fourth Geneva Convention [on, inter alia, the grave breach of unlawful confinement of a protected person]. 
Sierra Leone, Geneva Conventions Act, 2012, Section 2(1)(d).
Singapore
Singapore’s Geneva Conventions Act (1973) punishes “any person, whatever his citizenship or nationality, who, whether in or outside Singapore, commits, aids, abets or procures the commission by any other person of any such grave breach of any [1949 Geneva] Convention”. 
Singapore, Geneva Conventions Act, 1973, Section 3(1).
Slovenia
Slovenia’s Penal Code (1994) provides that unlawful confinement of civilian persons is a war crime. 
Slovenia, Penal Code, 1994, Article 374(1).
South Africa
South Africa’s ICC Act (2002) reproduces the crimes listed in the 1998 ICC Statute, including “imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law” as a crime against humanity, and the war crime of “unlawful confinement” of persons protected under the 1949 Geneva Conventions in international armed conflicts. 
South Africa, ICC Act, 2002, Schedule 1, Part 2, § 1(e) and Part 3, § (a)(vii).
Spain
Spain’s Military Criminal Code (1985) states that the illegal detention of protected persons of a State with which Spain is at war is an offence against the laws and customs of war. 
Spain, Military Criminal Code, 1985, Article 77(6).
Spain
Spain’s Penal Code (1995) provides for the punishment of the “illegal detention of any protected person”. 
Spain, Penal Code, 1995, Article 611(4).
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
Any person who [commits any of the following acts] during armed conflict is punished with 10 to 15 years’ imprisonment, without prejudice to a penalty for the results of such acts:
4. … [U]nlawfully detaining or interning a protected person. 
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 611(4).
Sri Lanka
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
PART II
INVESTIGATION OF OFFENCES
6. (1) Any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him … may, without a warrant and with or without assistance and notwithstanding anything in any other law to the contrary[:]
(a) arrest any person;
7. (1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours …
PART III
DETENTION AND RESTRICTION ORDERS
9. (1) Where the Minister has reason to believe or suspect that any person is connected with or [involved] … in any unlawful activity, the Minister may order that such person be detained for a period not exceeding three months in the first instance, in such place and subject to such conditions as may be determined by the Minister, and any such order may be extended from time to time for a period not exceeding three months at a time:
Provided, however, that the aggregate period of such detention shall not exceed a period of eighteen months.
11. (1) Where the Minister has reason to believe or suspect that any person is connected with or concerned in the commission of any unlawful activity referred to in subsection (1) of section 9, he may make an order in writing imposing on such person such prohibitions or restrictions as may be specified in such order in respect of[:]
(a) his movement outside such place of residence as may be specified; or
(b) the places of residence and of employment of such person; or
(c) his travel within or outside Sri Lanka; or
(d) his activities whether in relation to any organization, association or body of persons of which such person is a member, or otherwise; or
(e) such person addressing public meetings or from holding office in, or taking part in the activities of or acting as adviser to, any organization, association or body of persons, or from taking part in any political activities,
and he may require such person to notify his movements to such authority, in such manner and at such times as may be specified in the order.
(2) Where the Minister makes a restriction order in respect of any person while an order of detention in respect of such person is in force, such restriction order shall, unless otherwise specified, take effect upon the expiry of the detention order.
(3) Every order made under subsection (1) shall be in force for such period, not exceeding three months, as may be specified therein:
Provided, that the Minister may, by order in writing, extend such period from time to time for periods not exceeding three months at a time so … that the aggregate of such periods does not exceed eighteen months.
(4) Where an order is made under subsection (1), the Minister may by notice in writing served on the person to whom such order relates, vary, cancel or add to any prohibitions or restrictions imposed by such order on such person and the prohibitions or restrictions so varied or added to shall, unless earlier cancelled, continue in force for the unexpired portion of the period specified in such order or the period as extended under subsection (3).
PART VI
TRIAL
15. …
(2) Upon the indictment being received in the High Court against any person in respect of any offence under this Act or any offence to which the provisions of section 23 shall apply, the court shall, in every case, order the remand of such person until the conclusion of the trial.
15A. (1) Where any person is on remand under the provisions of subsection (2) of section 15, or section 19 (a), notwithstanding any other provision of this Act or any other law, the Secretary to the Ministry of the Minister in charge of the subject of Defense may, if he is of opinion that it is necessary or expedient so to do, in the interests of national security or public order, make Order, … that such person be kept in the custody of any authority, in such place and subject to such conditions as may be determined by him having regard to such interests.
(2) Any Order made under subsection (1) shall be communicated to the High Court and to the Commissioner of Prisons and it shall be the duty of such Commissioner, to deliver the custody of such person to the authority specified in such order and the provisions of the Prisons Ordinance shall cease to apply in relation to the custody of such person.
19. Notwithstanding the provisions of any other written law[:]
(a) every person convicted by any court of any offence under this Act shall, notwithstanding that he has lodged a petition of appeal against his conviction or the sentence imposed on him, be kept on remand until the determination of the appeal;
Provided, however, that the Court of Appeal may in exceptional circumstances release on bail any such person referred to in paragraph (a) subject to such conditions as the Court of Appeal may deem fit, or vary or suspend any order referred to in paragraph (6).
20. Notwithstanding anything [in the] Code of Criminal Procedure Act[:]
(a) the provisions of section 303 of that Act [relating to the suspension of sentences] shall not apply in the case of any person who is convicted;
(b) the provisions of section 306 of that Act [relating to conditional discharge of offenders] shall not apply in the case of any person who pleads or is found guilty, by or before any court of any offence under this Act. 
Sri Lanka, Prevention of Terrorism (Temporary Provisions) Act, 1979, as amended to 1988, Sections 6(1)(a), 7(1), 9(1), 11, 15(2), 15A, 19(a) and 20.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
PART 4
SUPERVISION, SEARCH, ARREST AND DETENTION
18. (1) Where the Secretary to the Ministry of the Minister in charge of the subject of Defence is of opinion with respect to any particular person that, with a view to … [preventing] that person –
(a) from acting in any manner prejudicial to … national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of regulation 25 [concerning offences and penalties] or sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 [the offense of failing or refusing to work where this is considered an “essential service”] or of paragraph (3) of regulation 71 [taking part in a proscribed organization] of these regulations; [if] it is necessary so to do, the Secretary may make an order for all or any of the following purposes: –
(i) for securing that, except in so far as he may be permitted by the order, or by such authority or person as may be specified in that order, that person shall not be in any … area in Sri Lanka as may be so specified;
(ii) for requiring that person to notify his movements in such manner, at such times, and to such authority or person as may be specified in that order;
(iii) for prohibiting that person from leaving his residence without the permission of such authority or person as may be specified in that order, and prohibiting any other person from entering or leaving such residence except in such circumstances as may be specified in that order or [as may] be determined by such authority or person as may be specified in that order;
(iv) for requiring that person, if he is in possession of a passport or of travel documents or tickets for transportation for a journey outside Sri Lanka, to surrender such passport or travel documents or tickets, as the case may be, to such authority or person as may be specified in that order;
(2) If any person is in any area in contravention of an order made under sub-paragraph (i) of paragraph (1) of this regulation or fails to leave any area in accordance with the requirements of such an order, then, without prejudice to any proceedings that may be taken against him, he may be removed from that area by any police officer or by any other person authorized … [to do so] by the Secretary to the Ministry of Defence.
19. (1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person –
(a) from acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 or regulation 25 of these regulations, it is necessary so to do, the Secretary may order that such person be taken into custody and detained in custody …
(1C) Any person detained in pursuance of the provisions of paragraph (1) for a period of one year reckoned from the date of his arrest, may upon the expiration of such period, be detained by the Secretary for a further period of six months, if it appears that the release of such person would be detrimental to the interests of national security …
(2) Any police officer or member of the Sri Lanka Army, Sri Lanka Navy or Sri Lanka Air Force shall have the right to carry into effect any order made under paragraph (1) of this regulation and to … [use] … such force as may be necessary for the purpose.
20. (1) Any Public officer, any member of the Sri Lanka Army, the Sri Lanka Navy or the Sri Lanka Air Force, or any other person authorized by the President to act under this regulation may search, detain for purposes of such search, or arrest without warrant, any person who is committing or has committed or whom he has reasonable ground for suspecting to be concerned in, or to be committing, or to have committed, an offence under any emergency regulation …
(2) Any person detained under paragraph (1) shall, within twenty-four hours, be handed over to the nearest police station.
(8) It shall be the duty of the arresting officer to report the arrest made under paragraph (1), where the arresting officer is a police officer, to the Superintendent of Police of the Division within which the arrest is made, and … where the arresting officer is a member of the armed forces, to the Commanding Officer of the area within which the arrest is made, within twenty-four hours of the arrest.
22. …
(2) Any person who surrenders (hereinafter referred to as the “surrendee”) in connection with any offence under the Explosives Act, the Offensive Weapons Act, No. 18 of 1966, the Firearms Ordinance, the Prevention of Terrorism (Temporary Provisions) Act, No. 48 of 1979 or under Chapter VI [offences against the State], Chapter VII [offences relating to the armed forces] or Chapter VIII of the Penal Code [offences against public tranquillity] or under any emergency regulation, or through fear of terrorist activities to any police officer, or any member of the armed forces, or to any public officer or any other person or body of persons authorized by the President by order, shall be required to give a written statement to the officer or person authorized to the effect that he is surrend[er]ing voluntarily.
(3) The Secretary to the Ministry of the Minister in-charge of the subject of Defence shall, from time to time approve Centres to be k[n]own as “Protective Accommodation and Rehabilitation Centres” (hereafter referred to as “the Centre”) for the purpose of receiving and keeping surrendees.
(4) The officer or person to whom a person surrenders in terms of paragraph (2) shall, within ten (10) days of such surrende[r] hand over the surrendee to the Commissioner-General of Rehabilitation who shall assign such surrendee to a Centre. …
(5) The officer or any other person to whom a person surrenders in terms of paragraph (2) shall inform the Secretary to the Ministry of the Minister in-charge of the subject of Defence, no later than ten (10) days of the surrender, that a voluntary surrender has been made and such person was handed over to the Commissioner-General of Rehabilitation in the manner set out in paragraph (4) above.
(6) On the Secretary to the Ministry of the Minister-in-Charge of the subject of Defence being informed in terms of paragraph (5), by the officer or person to whom the surrendee surrendered, that the surrendee has been handed over to the Commissioner-General of Rehabilitation, he shall make an order authorizing the Commissioner-General of Rehabilitation to keep such surrendee for a period not exceeding twelve months in the first instance at the Centre to which he has been assigned. Such period will be computed from the date of handing over of such surrendee by the officer or person as the case may be, to the Commissioner-General of Rehabilitation.
(7) The Commissioner-General shall within a period of two months of the date of the surrendee being handed over to him, forward a Report to the Secretary to the Ministry of the Minister in-charge of the subject of Defence indicating the nature of the rehabilitation being carried out in respect of the surrendee.
(9) The Commissioner-General of Rehabilitation shall prior to the expiration of the aforesaid period of twelve months, forward to the Secretary to the Ministry of the Minister in-charge of the subject of Defence, a report stating whether in his opinion it is appropriate to release the surrender or to extend for a further period the rehabilitation of such surrendee.
(10) At the end of the period of twelve months the Secretary to the Ministry of the Minister in-charge of the subject of Defence, may, after per[us]al of the report submitted to him under paragraph (9) by the Commissioner-General of Rehabilita[t]ion –
(a) order the release of such person; or
(b) extend the period of rehabilitation for periods of three months at a time, so … that the aggre[g]ate period of such extensions shall not exceed a further twelve months. Each such extension shall be made on the recommendation of the Commissioner-General of Rehabilitation and of an Advisory Committee appointed by the President in terms of paragraph (4) of regulation 19 of these regulations.
(11) The surrendee shall, at the end of the extended period of rehabilitation, be released.
(12) The Superintendent of Police of the Division in-charge of the division within which a person surrendered in terms of paragraph (2) may, after the expiration of three months from the date of his being assigned to a Centre, with prior written approval of [the] Secretary to the Ministry of the Minister in-charge of the subject of Defence, investigate the involvement of any surrendee who is suspected of being connected with, or concerned in, the commission of an offence set out in paragraph (2) and where it is so necessary to try him for the commission of such offence.
(13) Where at the end of any trial a surrendee is found guilty of the offence in connection with which he is charged or indicted, the Court may in determining the sentence to be imposed on him take into consideration the fact of his surrender, The Court may where appropriate, order that such surrendee be subjected to a further period of rehabilitation as may be determined by Court, at a Centre.
(14) Where a surrendee found guilty of an offence and subjected to a further period of rehabilitation by Order of Court in terms of paragraph (13), acts in a manner detrimental to the rehabilitation programme or the interest of the other surrendees at the Centre, [t]he Commissioner-General of Rehabilitation may on production of such person before the Court which sentenced him present such facts to [the] Court and the Court may after such summary inquiry as the Court thinks fit, make [an] order sentencing him to imprisonment in lieu of such further period of rehabilitation.
PART 8
MISCELLANEOUS
67. (1) During the continuance in force of this regulation -
(a) sections 95 and 96 of the Code of Criminal Procedure Act, No. 15 of 1979 (which relate to the power to disperse unlawful assemblies), shall cease to be in force; and
(b) any police officer of a rank not below that of a Sergeant, any member of the Sri Lanka Army of a rank not below that of a Corporal, any member of the Sri Lanka Navy of a rank not below that of a Leading Seaman, or any member of the Sri Lanka Air Force of a rank not below that of a Corporal, may order any person or persons in or about any public road, railway, public park, public recreation ground or other public ground, seashore, or in or about, or in the vicinity of, the premises of any public building or Government Department, to remove himself or themselves from that place and it shall be the duty of such person, or each such person, as the case may be, to comply with such order.
(2) If, upon the issue of an order under sub-paragraph (b) of paragraph (1) of this regulation by any officer empowered to issue such order, any person does not comply with the order or conducts himself in … such a manner as to show a determination not to comply with the order such officer with such assistance as may be necessary, may proceed to give effect to such order by force including armed force, and may cause such person to be removed or arrested and confined.
(3) During the continuance in force of this regulation, sections 306 (1), (2) and (4) of the Code of Criminal procedure Act, No. 15 of 1979 [conditional discharge of an offender], shall not apply to or in relation to any person … charged with, or … convicted of, any offence under [the] emergency regulation[s], save and except [in relation to] an offence under regulation 13(1) hereof.
68. (1) Notwithstanding anything in any other law to the contrary, a person taken into custody and detained under any emergency regulation may, during the period of such custody and detention, be questioned by any Police officer, or any other officer authorized by the Commissioner of the Army, Commander of the Navy or Commander of the Air Force and it shall be the duty of the person so questioned to answer the question addressed to him.
(2) for the purpose of questioning any person taken into custody and detained under paragraph (1) or for any other purpose connected with such questioning, any officer referred to in paragraph (1) of this regulation may remove such person from any place of detention or custody and keep him in the temporary custody of such officer for a period not exceeding seven days at a time. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Sections 18(1)(a)–(b)(i)–(iv) and (2), 19(1), (1C) and (2), 20(1)–(2) and (8), 22(2)–(7) and (9)–(14), and 67–68.
Sri Lanka
Sri Lanka’s Geneva Conventions Act (2006) includes the following grave breach as an indictable offence: “unlawful confinement of a protected person”. 
Sri Lanka, Geneva Conventions Act, 2006, Schedule IV: Article 147.
Sri Lanka
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
Notwithstanding anything contained in the Code of Criminal Procedure Act, No.15 of 1979 other than the provisions of section 43 (A) of that Act, any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the presence of the Magistrate:
Provided that where the arrest is in relation to an offence as is specified in the Schedule to this Act, such period of detention in police custody may, on production before him of the person arrested and on a certificate filed by a police officer not below the rank of the Assistant Superintendent of Police submitted prior to the expiration of the said period of twenty-four hours, to the effect that it is necessary to detain such person for the purpose of further investigations, be extended upon an order made … by the Magistrate for a further period not exceeding twenty-four hours, so … that the aggregate period of detention shall not exceed forty-eight hours. 
Sri Lanka, Code of Criminal Procedure (Special Provisions) Act, 2007, Article 2.
Sudan
Sudan’s Armed Forces Act (2007) provides:
(2) Subject to provisions of the Criminal Act of 1991, shall be punished with imprisonment for a term not exceeding ten years, whoever commits, within the framework of a methodical direct and widespread attack, directed against civilians, any of the following acts:
(c) … unlawful detention … of any person, or depriving him/her of his/her freedom. 
Sudan, Armed Forces Act, 2007, Article 151(2).
Sweden
Sweden’s Penal Code (1962), as amended in 1998, provides that “depriving civilians of their liberty in contravention of international law” is a crime against international law. 
Sweden, Penal Code, 1962, as amended in 1998, Article 22(6).
Switzerland
Switzerland’s Military Criminal Code (1927), taking into account amendments entered into force up to 2011, states in a chapter entitled “War crimes”:
Art. 111
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
f. unlawful … confinement of persons;
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 111(1)(f) and (2).
[footnote in original omitted]
The Code also states:
Art. 5
1 In times of war, in addition to the persons mentioned in art. 3 [Personal conditions] and 4 [Extension in case of active service], the following are subject to military criminal law:
1. Civilians who make themselves culpable of one of the following offences:
d. … crime against humanity [Art. 109] (Part 2, chapter 6) …;
5. foreign military persons who make themselves culpable of … a crime against humanity [Art. 109] (Part 2, chapter 6)[.]
Chapter 6 – Genocide and crimes against humanity
Art. 109
1 The penalty shall be a custodial sentence of not less than five years for any person who, as part of a widespread or systematic attack directed against the civilian population:
d. inflicts on a person a severe deprivation of liberty in violation of the fundamental rules of international law. 
Switzerland, Military Criminal Code, 1927, taking into account amendments entered into force up to 2011, Articles 5(1)(1)(d) and (5) and 109(1)(d).
[footnotes omitted]
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, states under the title “War crimes”:
Art. 264b
Articles 264d–264j apply in the context of international armed conflicts, including in situations of occupation, and, if the nature of the offence does not exclude it, in the context of non-international armed conflicts.
Art. 264c
1 The penalty shall be a custodial sentence of not less than five years for any person who commits, in the context of an international armed conflict, a grave breach of the Geneva Conventions of 12 August 1949, namely one of the following acts against persons or objects protected under one of these Conventions:
f. unlawful … confinement of persons;
2 Acts covered by paragraph 1 committed in the context of a non-international armed conflict are equivalent to grave breaches of international humanitarian law if they are directed against a person or object protected by that law. 
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Articles 264b, 264c (1)(f) and (2).
[footnote in original omitted]
Tajikistan
Tajikistan’s Criminal Code (1998) provides for the punishment of the “unlawful confinement of protected persons”.  
Tajikistan, Criminal Code, 1998, Article 403(2)(f).
Thailand
Thailand’s Martial Law Act (1914), as amended in 1972, states:
If there is a reasonable ground to suspect that any person is the enemy or violates the provisions of this Act or the order of the military authority, the military authority shall have the power to detain such person for inquiry or for other necessities of the military. Such detention shall be no longer than seven days. 
Thailand, Martial Law Act, 1914, as amended in 1972, Section 15 bis.
Turkey
Under Turkey’s Criminal Code (2004), depriving persons of their liberty constitutes a crime against humanity when committed “systematically under a plan against a sector of a community for political, philosophical, racial or religious reasons”. 
Turkey, Criminal Code, 2004, Article 77(d).
Uganda
Uganda’s Geneva Conventions Act (1964) punishes “any person, whatever his nationality, who, whether within or without Uganda commits or aids, abets or procures the commission by any other person of any grave breach of the [1949 Geneva] Conventions”. 
Uganda, Geneva Conventions Act, 1964, Section 1(1).
Uganda
Uganda’s National Resistance Army Statute (1992) provides for the punishment of a person subject to military law who unnecessarily detains any other person without bringing him or her to trial. 
Uganda, National Resistance Army Statute, 1992, Article 45(b).
Uganda
Uganda’s Defence Forces Act (2005) provides that any “person subject to military law, who … unlawfully detains any other person in arrest or in confinement” commits an offence. 
Uganda, Defence Forces Act, 2005, § 170(a).
United Kingdom of Great Britain and Northern Ireland
The UK Geneva Conventions Act (1957), as amended in 1995, punishes “any person, whatever his nationality, who, whether in or outside the United Kingdom, commits, or aids, abets or procures the commission by any other person of, a grave breach of any of the [1949 Geneva] conventions”. 
United Kingdom, Geneva Conventions Act, 1957, as amended in 1995, Section 1(1).
United Kingdom of Great Britain and Northern Ireland
Under the UK ICC Act (2001), it is a punishable offence to commit a war crime as defined in Article 8(2)(a)(vii) of the 1998 ICC Statute. 
United Kingdom, ICC Act, 2001, Sections 50(1) and 51(1) (England and Wales) and Section 58(1) (Northern Ireland).
United States of America
Under the US War Crimes Act (1996), grave breaches of the 1949 Geneva Conventions are war crimes. 
United States, War Crimes Act, 1996, Section 2441(c).
United States of America
In July 2007, and in accordance with section 6(a)(3) of the Military Commissions Act (2006), the US President issued an Executive Order which stated that a “Program of Detention and Interrogation Operated by the Central Intelligence Agency” complied with US obligations under common Article 3 of the 1949 Geneva Conventions. The Executive Order stated in part:
By the authority vested in me as President and Commander in Chief of the Armed Forces by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force (Public Law 107 40), the Military Commissions Act of 2006 (Public Law 109 366), and section 301 of title 3, United States Code, it is hereby ordered as follows:
Section 1. General Determinations.
(a) The United States is engaged in an armed conflict with al Qaeda, the Taliban, and associated forces. Members of al Qaeda were responsible for the attacks on the United States of September 11, 2001, and for many other terrorist attacks, including against the United States, its personnel, and its allies throughout the world. These forces continue to fight the United States and its allies in Afghanistan, Iraq, and elsewhere, and they continue to plan additional acts of terror throughout the world. On February 7, 2002, I determined for the United States that members of al Qaeda, the Taliban, and associated forces are unlawful enemy combatants who are not entitled to the protections that the Third Geneva Convention provides to prisoners of war. I hereby reaffirm that determination.
(b) The Military Commissions Act defines certain prohibitions of Common Article 3 for United States law, and it reaffirms and reinforces the authority of the President to interpret the meaning and application of the Geneva Conventions.
Sec. 3. Compliance of a Central Intelligence Agency Detention and Interrogation Program with Common Article 3.
(a) Pursuant to the authority of the President under the Constitution and the laws of the United States, including the Military Commissions Act of 2006, this order interprets the meaning and application of the text of Common Article 3 with respect to certain detentions and interrogations, and shall be treated as authoritative for all purposes as a matter of United States law, including satisfaction of the international obligations of the United States. I hereby determine that Common Article 3 shall apply to a program of detention and interrogation operated by the Central Intelligence Agency as set forth in this section. The requirements set forth in this section shall be applied with respect to detainees in such program without adverse distinction as to their race, color, religion or faith, sex, birth, or wealth.
(b) I hereby determine that a program of detention and interrogation approved by the Director of the Central Intelligence Agency fully complies with the obligations of the United States under Common Article 3, provided that:
(i) the conditions of confinement and interrogation practices of the program do not include:
(A) torture, as defined in section 2340 of title 18, United States Code;
(B) any of the acts prohibited by section 2441(d) of title 18, United States Code, including murder, torture, cruel or inhuman treatment, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, taking of hostages, or performing of biological experiments;
(C) other acts of violence serious enough to be considered comparable to murder, torture, mutilation, and cruel or inhuman treatment, as defined in section 2441(d) of title 18, United States Code;
(D) any other acts of cruel, inhuman, or degrading treatment or punishment prohibited by the Military Commissions Act (subsection 6(c) of Public Law 109 366) and the Detainee Treatment Act of 2005 (section 1003 of Public Law 109 148 and section 1403 of Public Law 109 163);
(E) willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or
(F) acts intended to denigrate the religion, religious practices, or religious objects of the individual;
(ii) the conditions of confinement and interrogation practices are to be used with an alien detainee who is determined by the Director of the Central Intelligence Agency:
(A) to be a member or part of or supporting al Qaeda, the Taliban, or associated organizations; and
(B) likely to be in possession of information that:
(1) could assist in detecting, mitigating, or preventing terrorist attacks, such as attacks within the United States or against its Armed Forces or other personnel, citizens, or facilities, or against allies or other countries cooperating in the war on terror with the United States, or their armed forces or other personnel, citizens, or facilities; or
(2) could assist in locating the senior leadership of al Qaeda, the Taliban, or associated forces. 
United States, Executive Order 13440, Interpretation of the Geneva Conventions Common Article 3 as Applied to a Program of Detention and Interrogation Operated by the Central Intelligence Agency, 20 July 2007.
The Executive Order was revoked in 2009. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Section 1.
United States of America
In 2009, the US President issued Executive Order 13491, Ensuring Lawful Interrogations, which stated:
By the authority vested in me by the Constitution and the laws of the United States of America, in order to improve the effectiveness of human intelligence-gathering, to promote the safe, lawful, and humane treatment of individuals in United States custody and of United States personnel who are detained in armed conflicts, to ensure compliance with the treaty obligations of the United States, including the [1949] Geneva Conventions, and to take care that the laws of the United States are faithfully executed, I hereby order as follows:
Section 1. Revocation. Executive Order 13440 of July 20, 2007, is revoked. All executive directives, orders, and regulations inconsistent with this order, including but not limited to those issued to or by the Central Intelligence Agency (CIA) from September 11, 2001, to January 20, 2009, concerning detention or the interrogation of detained individuals, are revoked to the extent of their inconsistency with this order. Heads of departments and agencies shall take all necessary steps to ensure that all directives, orders, and regulations of their respective departments or agencies are consistent with this order.
Sec. 4. Prohibition of Certain Detention Facilities, and Red Cross Access to Detained Individuals.
(a) CIA Detention. The CIA shall close as expeditiously as possible any detention facilities that it currently operates and shall not operate any such detention facility in the future. 
United States, Executive Order 13491, Ensuring Lawful Interrogations, 2009, Sections 1 and 4(a).
United States of America
In 2009, the US President issued Executive Order 13492, Closure of Guantánamo Detention Facilities, which stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantánamo Bay Naval Base (Guantánamo) and promptly to close detention facilities at Guantánamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
Sec. 2. Findings.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantánamo. The Federal Government has moved more than 500 such detainees from Guantánamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantánamo are eligible for such transfer or release.
Sec. 3. Closure of Detention Facilities at Guantánamo. The detention facilities at Guantánamo for individuals covered by this order shall be closed as soon as practicable, and no later than 1 year from the date of this order. If any individuals covered by this order remain in detention at Guantánamo at the time of closure of those detention facilities, they shall be returned to their home country, released, transferred to a third country, or transferred to another United States detention facility in a manner consistent with law and the national security and foreign policy interests of the United States. 
United States, Executive Order 13492, Closure of Guantánamo Detention Facilities, 2009, Sections 2(a) and 3.
Uruguay
Uruguay’s Law on Cooperation with the ICC (2006) states:
A person who commits any of the following acts with the intention to destroy in whole or in part a national, ethnic, religious, political, or trade union group or a group with their own identity based on gender, sexual orientation, cultural or social reasons, age, disability or health, is punished with fifteen to thirty years’ imprisonment:
B) … deprivation of liberty … of one or more members of the group. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 16(B).
The Law also states:
26.2. Persons and objects affected by the war crimes set out in the present provision are persons and objects which international law protects in international or internal armed conflict.
26.3. The following are war crimes:
7. … unlawful confinement. 
Uruguay, Law on Cooperation with the ICC, 2006, Article 26.2 and 26.3.7.
Vanuatu
Vanuatu’s Geneva Conventions Act (1982) provides:
Any grave breach of the Geneva Conventions that would, if committed in Vanuatu, be an offence under any provision of the Penal Code Act Cap. 135 or any other law shall be an offence under such provision of the Penal Code or any other law if committed outside Vanuatu. 
Vanuatu, Geneva Conventions Act, 1982, Section 4(1).
Venezuela
Venezuela’s Law on the State of Emergency (2001), which includes situations of internal and international armed conflict, states:
In accordance with Articles 339 of the Constitution of the Bolivarian Republic of Venezuela, Article 4(2) of the [1966] International Covenant on Civil and Political Rights and Article 27(2) of the [1969] American Convention on Human Rights, the guarantee to the [following] rights must not be restricted:
6. The [right to] personal freedom. 
Venezuela, Law on the State of Emergency, 2001, Article 7(6).
Venezuela
Venezuela’s Law on the Protection of Children and Adolescents (2007) states: “An adolescent who is under investigation or detained must be informed … of the right … to request the immediate presence of his or her parents, representatives or guardians”. 
Venezuela, Law on the Protection of Children and Adolescents, 2007, Article 541.
Venezuela
Venezuela’s Constitution (2009) states:
The President of the Republic, at a meeting of the Cabinet of Ministers, shall have the power to decree states of exception. … In such cases, the guarantees contained in this Constitution may be temporarily restricted, with the exception of those relating to the … prohibition of incommunicado detention. 
Venezuela, Constitution, 2009, Article 337.
The Constitution further states: “A state of internal or external commotion may be declared in the event of an internal or external [armed] conflict seriously endangering the security of the Nation, its citizens or its institutions.” 
Venezuela, Constitution, 2009, Article 338.
Venezuela
Venezuela’s Penal Procedure Code (2009), which is applicable to the prosecution of war crimes, states:
Any person accused of participating in a punishable offence will remain in liberty during the proceedings except in the exceptions established by this Code.
The deprivation of liberty is an interim measure that will only be used when all other … measures are insufficient to guarantee the aims of the proceeding. 
Venezuela, Penal Procedure Code, 2009, Article 243.
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states:
Any person accused of participating in a punishable offence will remain in liberty during the proceedings except in the exceptions established by this code.
The deprivation of liberty is an interim measure that will only be used when all other … measures are insufficient to guarantee the aims of the proceeding. 
Venezuela, Penal Procedure Code, 2012, Article 229.
In its Explanatory Notes, the Code states that “the principle of liberty … restricts and conditions in an absolute manner any action directed at depriving a person of liberty for reasons not provided for in this code”. 
Venezuela, Penal Procedure Code, 2012, Explanatory Notes, pp. 2–3.
Yemen
Under Yemen’s Military Criminal Code (1998), the “unlawful detention of civilians” is a war crime. 
Yemen, Military Criminal Code, 1998, Article 21(4).
Yugoslavia, Socialist Federal Republic of
The Socialist Federal Republic of Yugoslavia’s Penal Code (1976), as amended in 2001, provides: “Unlawful confinement of civilian persons is a war crime.” 
Yugoslavia, Socialist Federal Republic of, Penal Code, 1976, as amended in 2001, Article 142(1).
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
CHAPTER III
THE DECLARATION OF RIGHTS
13 Protection of right to personal liberty
(1) No person shall be deprived of his personal liberty save as may be authorised by law …
25 Savings in the event of public emergencies
Notwithstanding the foregoing provisions of this Chapter [III], an Act of Parliament may in accordance with Schedule 2 derogate from certain provisions of the Declaration of Rights in respect of a period of public emergency or a period when a resolution under section 31J(6) is in effect.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights.
31J Public emergencies
(1) The President may at any time, by proclamation in the Gazette, declare in relation to the whole of Zimbabwe or any part thereof that–
(a) a state of public emergency exists; or
(b) a situation exists which, if allowed to continue, may lead to a state of public emergency.
(2) A declaration under subsection (1), if not sooner revoked, shall cease to have effect at the expiration of a period of fourteen days beginning with the day of publication of the proclamation in the Gazette unless, before the expiration of that period, the declaration is approved by resolution of the House of Assembly:
Provided that, if Parliament is dissolved during the period of fourteen days, the declaration, unless sooner revoked, shall cease to have effect at the expiration of a period of thirty days beginning with the day of publication of the proclamation in the Gazette unless, before the expiration of that period, the declaration is approved by resolution of the House of Assembly.
(5) Notwithstanding any other provision of this section, the House of Assembly may at any time–
(a) resolve that a declaration under subsection (1) should be revoked; or
(b) whether in passing a resolution under subsection (2) or (4) or subsequently, resolve that a declaration under subsection (1) should relate to such lesser area as the House of Assembly may specify;
and the President shall forthwith, by proclamation in the Gazette, revoke the declaration or provide that the declaration shall relate to such lesser area, as the case may be.
(6) Without prejudice to the provisions of subsections (1) to (5), the House of Assembly may at any time resolve in relation to the whole of Zimbabwe or any part thereof that a situation exists which–
(a) if allowed to continue, may lead to a state of public emergency; and
(b) may require the preventive detention of persons in the interests of defence, public safety or public order. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 13(1), 25, 26(7), 31J(1)–(2) and (5)–(6).
The Constitution also states:
SCHEDULE 2
1 Savings in the event of public emergencies
(1) Nothing contained in any law shall be held to be in contravention of section 13, 17, 20, 21, 22 or 23 to the extent that the law in question provides for the taking, during a period of public emergency, of action for the purpose of dealing with any situation arising during that period, and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions unless it is shown that the action taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation.
(2) Nothing contained in any law shall be held to be in contravention of section 13 to the extent that the law in question provides for preventive detention, during a period when a resolution under section 31J(6) is in effect, in the interests of defence, public safety or public order, and nothing done by any person under the authority of any such law shall be held to be in contravention of section 13 unless it is shown that the action taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation.
(3) Where a declaration under section 31J(1) or a resolution under section 31J(6) applies only in relation to a part of Zimbabwe, the law in question shall not provide for the taking of action or for preventive detention, as the case may be, in relation to any place outside that part.
2 Preventive detention
(5) No law providing for preventive detention during a period when a resolution under section 31J(6) is in effect shall authorise the detention of a person for a period longer than fourteen days unless the Minister designated for the purpose has issued an order providing for the preventive detention of that person. 
Zimbabwe, Constitution, 1979, as amended to 2009, Schedule 2, Articles 1 and 2(5).
The Constitution further states:
In this Constitution, unless the context otherwise requires–
“period of public emergency” means–
(a) any period when Zimbabwe is engaged in any war and the period immediately following thereon until such date as may be declared by the President, by proclamation in the Gazette, as the end of the period of public emergency caused by that war. 
Zimbabwe, Constitution, 1979, as amended to 2009, Section 113(1)(a).
Zimbabwe
Zimbabwe’s Geneva Conventions Act (1981), as amended in 1996, punishes “any person, whatever his nationality, who, whether in or outside Zimbabwe, commits any such grave breach of [any of the 1949 Geneva] Conventions”. 
Zimbabwe, Geneva Conventions Act, 1981, as amended in 1996, Section 3(1).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
49. Right to personal liberty
(1) Every person has the right to personal liberty, which includes the right –
(a) not to be detained without trial, and
(b) not to be deprived of their liberty arbitrarily or without just cause.
50. Rights of arrested and detained persons
(7) lf there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order –
(a) of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiting the whereabouts of the detained person to be disclosed;
or
(b) declaring the detention to be illegal and ordering the detained person’s prompt release;
and the High Court may make whatever order is appropriate in the circumstances.
(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(f) the right to obtain an order of habeas corpus as provided in section 50(7)(a).
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 49(1), 50(7)–(8), 86(2)(b) and (3)(f) and 87(1) and (4).
289. … [The accused] entering the house of … a civilian … dweller of [the] village [of] “Ujirpur Bazarpara” … is alleged to have abducted [the victim] on 18 May 1971 … during the war of liberation and held her confined … and thereby the accused has been charged [with] the … offence of “abduction [and] confinement … as crimes against humanity” …
312. The accused is found GUILTY of the offences of abduction, confinement, torture, rape and other inhumane acts as crimes against Humanity as specified in section 3(2)(a)(g) and (h) read with section 4(1) of the Act of 1973 and he be convicted and sentenced under section 20(2) of the said Act.
Bosnia and Herzegovina
In 2007, in the Janković case, the Appellate Panel of the Court of Bosnia and Herzegovina stated:
[I]n order to establish the crime of imprisonment as a crime against humanity, the following elements must be established: i) an individual is deprived of his or her liberty; ii) the deprivation of liberty is imposed arbitrarily, that is, no legal basis can be invoked to justify the deprivation of liberty; iii) 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 … [T]he deprivation of physical liberty … imposed arbitrarily without any legal basis … constitutes the crime of imprisonment or other deprivation of liberty in violation of basic rules of international law. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Janković case, Judgment, 23 October 2007, p. 14.
Canada
In the Charkaoui case before Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Court held:
88. Section 9 of the Charter [Canadian Charter of Rights and Freedoms] guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law.
107. … I conclude that the [Canadian Charter of Rights and Freedoms] s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release. 
Canada, Supreme Court, Charkaoui case, Judgment, 23 February 2007, §§ 88 and 107.
Canada
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
I. Introduction
[13] To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
[16] For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
II. Background
[44] Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
[47] The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
[52] The Technical Arrangements and the two Arrangements entered into by Canada and Afghanistan with respect to the transfer of detainees (which will be discussed below), reflect the consent of the Government of Afghanistan to the operation of the Canadian Forces [CF] on Afghan territory for the purposes identified in the documents.
b) The Canadian Forces’ Detention of Individuals in Afghanistan
[53] As part of Canada’s military operations in Afghanistan, Canadian Forces are from time to time required to capture and detain insurgents, or those assisting the insurgents, who may pose a threat to the safety of Afghan nationals, as well as to members of the Canadian military and allied forces.
[54] The Canadian Forces possess a broad discretion to detain Afghan civilians, including individuals who may have no active role in hostilities.
[55] That is, Canadian Task Force Afghanistan’s Theatre Standing Order 321A regarding the “Detention of Afghan Nationals and Other Persons” provides that the Canadian Forces may detain any person on a “reasonable belief” (defined as “neither mere speculation nor absolute certainty”) that he or she is adverse in interest. This includes “persons who are themselves not taking a direct part in hostilities, but who are reasonably believed to be providing support in respect of acts harmful to the CF/Coalition Forces”.
[56] Under Theatre Standing Order 321A, the decision as to whether individual detainees should be retained in Canadian custody, released, or transferred to the custody of a third country, is within the sole discretion of the Commander of Joint Task Force Afghanistan, a position currently occupied by General Laroche.
[57] Following capture by the Canadian Forces, detainees are held in a Canadian Forces temporary detention facility at Kandahar Airfield. Kandahar Airfield is a NATO base, and is the location of the Canadian Forces’ base of operations in Kandahar province.
[58] Kandahar Airfield is not under the control of either the Afghan or Canadian governments, but is a facility shared by Canada and several other ISAF [International Security Assistance Force] countries participating in security and infrastructure operations in Afghanistan. Canada does, however, have command and control over the Canadian Forces’ detention facilities at the Kandahar Airfield.
[59] Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
[60] Canada informs the International Committee of the Red Cross when the Canadian Forces detain an individual in Afghanistan, but does not notify the Afghan government that one of its citizens has been detained, unless and until the detainee is to be transferred to Afghan custody.
[61] It is both NATO and Canadian Forces’ policy to transfer or release detainees within 96 hours of their capture. However, the Canadian Forces has the ability to hold detainees for longer periods, and has done so for a variety of reasons.
[62] While in Canadian custody, detainees are interrogated, searched, photographed and fingerprinted. Detainees are not provided with access to legal counsel during their detention by the Canadian Forces, nor are they afforded any opportunity to make representations prior to being handed over to the Afghan authorities.
[63] The Canadian Forces have the sole discretion to determine whether a detainee “shall be retained in custody, transferred to [the Afghan National Security Forces] or released.” These determinations are made on a case-by-case basis by the Canadian Commander of Task Force Afghanistan at regular review meetings.
[64] Before transferring a detainee into Afghan custody, General Laroche must be satisfied that there are no substantial grounds for believing that there exists a real risk that the detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities.
[65] It is the position of the respondents that if this standard is not met, detainee transfers will not take place.
[84] The respondents have refused to provide any information with respect to the identity or whereabouts of specific individuals who have been detained by the Canadian Forces, on the grounds of national security.
[85] The respondents do maintain, however, that Canada has no legal authority to establish or run a long-term detention facility in Afghanistan. That is, according to the respondents, the Canadian Forces have not been authorized to detain for the long term, either by the Government of Canada or by ISAF commanders, who have operational control over Canadian Forces. Nor has the Government of Afghanistan authorized such an encroachment on their sovereignty.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
b) R. v. Hape
[108] R. v. Hape involved a question as to the admissibility of evidence obtained outside of Canada at a criminal trial in this country.
[143] As was noted above, the test articulated by the majority in Hape requires the Court to consider whether the activity in question falls under s. 32(1) such that the Charter applies to it. In answering this question, the conduct in issue must be that of a Canadian state actor. The respondents now concede that Canadian Forces personnel fall within the definition of state actors for the purposes of this motion[.]
[144] The second part of the Hape test requires the Court to determine whether there is an exception to the principle of sovereignty that would justify the application of the Charter to the extraterritorial activities of the Canadian state actor. Based upon [the] international law principle of state sovereignty, the majority was of the view that Canadian law, including the Charter, could ordinarily only be enforced in another state with the consent of the other state: Hape, at ¶69.
[145] As a consequence, in order to answer the first question identified by this motion, the Court must determine whether the Government of Afghanistan has consented to the application of Canadian law, including the Charter, to the conduct of Canadian Forces personnel in relation to the detention of individuals on Afghan soil.
[146] Before addressing the issue of consent, however, it should be noted that the applicants argue that Parliament has the authority to pass laws governing the Canadian Forces, and has in fact done so with the National Defence Act, R.S., 1985, c. N-5. As a result, the applicants submit that the conduct of the Canadian Forces in Afghanistan is self-evidently a matter “within the authority of Parliament”, as contemplated by section 32 of the Charter.
[147] The difficulty with the applicants’ position is that the same point could equally have been made with respect to the R.C.M.P. in Hape, in light of the enactment of the Royal Canadian Mounted Police Act, R.S., 1985, c. R-10.
[148] Nevertheless, in the view of the majority in Hape, the criminal investigation which had been undertaken outside of Canada was not a matter “within the authority of Parliament”, as Parliament did not have jurisdiction to authorize the enforcement of Canadian law in the Turks and Caicos, without the consent of that state.
[149] Similarly, in this case, as a foreign state, Canada would not ordinarily have the power to detain non-Canadians, including Afghan citizens, on Afghan soil, without the consent of Afghanistan.
[150] It is thus necessary to determine whether the Government of Afghanistan has consented to the application of Canadian law, including the Charter, to Canadian Forces personnel in relation to the detention of non-Canadians in Afghanistan. This will be considered next.
c) Has the Government of Afghanistan Consented to the Application of Canadian law, Including the Charter?
[162] Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
[182] In light of the foregoing, it is clear that while Afghanistan has consented to its citizens being detained by the Canadian Forces for the purposes described by the Afghan Compact, it cannot be said that Afghanistan has consented to the application or enforcement of Canadian law, including the Canadian Charter of Rights and Freedoms, to constrain the actions of the Canadian Forces in relation to detainees held by the Canadian Forces on Afghan soil.
[183] Furthermore, the Government of Afghanistan has not consented to having Canadian Charter rights conferred on non-Canadians, within its territorial limits.
[184] As a result, based upon the Supreme Court of Canada’s ruling in Hape, it would thus appear that the Charter does not apply to the conduct of the Canadian Forces in issue in this case.
d) “Effective Military Control of the Person” as a Test for Charter Jurisdiction
[274] Whatever its appeal may be, … the practical result of applying such a ‘control of the person’ based test would be problematic in the context of a multinational military effort such as the one in which Canada is currently involved in Afghanistan. Indeed, it would result in a patchwork of different national legal norms applying in relation to detained Afghan citizens in different parts of Afghanistan, on a purely random-chance basis.
[276] This would be a most unsatisfactory result, in the context of a United Nations-sanctioned multinational military effort, further suggesting that the appropriate legal regime to govern the military activities currently underway in Afghanistan is the law governing armed conflict – namely international humanitarian law.
[277] Indeed, international humanitarian law is a highly developed branch of international law comprised of both customary international law and treaties “that regulates the conduct of military operations and operated to protect civilians and other persons not actively participating in hostilities, and to mitigate harm to combatants themselves” …
[279] Moreover, international humanitarian law applies not only during times of war, but applies as well, albeit with some modifications, to non-international armed conflicts within the territory of High Contracting Parties …
[280] The application of international humanitarian law to the situation of detainees in Afghanistan would not only give certainty to the situation, but would also provide a coherent legal regime governing the actions of the international community in Afghanistan.
[296] Moreover, both military detentions and police searches and seizures involve the invasion of “the private sphere of persons”, which invasion is “paradigmatic of state sovereignty”: Hape at ¶87. According to the Supreme Court, such actions can only be authorized by the host state.
[297] In this case, the scope of the authority given to Canada by the Government of Afghanistan to detain individuals on its soil is limited, and specifically contemplates that Canadian actions in this regard be governed by international law. In addition, it is clear from a review of the documentation governing the relationship between Afghanistan and Canada that the rights to be accorded to detainees are those guaranteed by the Afghan constitution, and by international law.
[298] As a consequence, I cannot accept the applicants’ argument that the Charter applies to the conduct of members of the Canadian Forces in relation to detainees held by Canadian military personnel on Afghan soil, based upon the degree of control that the Canadian Forces exert over the detainees.
VI. Conclusion
[336] … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
[337] As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
[338] Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
[342] That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
[343] Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law. 
Canada, Federal Court, Amnesty International Canada case, Judgment, 12 March 2008, §§ 13, 16, 44, 47, 52–65, 84–85, 108, 143–150, 162, 182–184, 274, 276–277, 279–280, 296–298, 336–338 and 342–343.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law. 
Canada, Federal Court of Appeal, Amnesty International Canada case, Judgment, 17 December 2008, § 36.
Canada
In 2013, in the Sapkota case, Canada’s Federal Court dismissed a request for review of a decision denying refugee protection to the applicant on grounds of complicity in crimes against humanity in Nepal between 1991 and 2009. While reviewing the submissions of the respondent, Canada’s Minister of Citizenship and Immigration, the Court stated: “The Respondent notes that the Rome Statute of the International Criminal Court … is endorsed in Canada as a source of customary law.” 
Canada, Federal Court, Sapkota case, Reasons for Judgment and Judgment, 15 July 2013, § 28.
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated that “the irregular detention of civilians may not be considered to fall within the competence of the military”. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Case No. 2182-98, Judgment of 17 November 2004, § 26.
Colombia
In 2007, in the Constitutional Case No. C-291/07, the Plenary Chamber of Colombia’s Constitutional Court stated:
Taking into account … the development of customary international humanitarian law applicable in internal armed conflicts, the Constitutional Court notes that the fundamental guarantees stemming from the principle of humanity, some of which have attained ius cogens status, … [include] the prohibition of arbitrary deprivation of liberty. 
Colombia, Constitutional Court, Constitutional Case No. C-291/07, Judgment of 25 April 2007, p. 112.
[footnote in original omitted]
Israel
In its judgment in the Yassin case in 2002, Israel’s High Court of Justice stated:
7. It is appropriate to open this discussion with the normative framework of this case, as was done by Justice Shamgar in Sajadia. This is in response to the possible claim that, since the detainees being held in Kziot Camp are terrorists who have harmed innocent people, we should not consider their detention conditions. This argument is fundamentally incorrect. Those being detained in the Kziot Camp have not been tried; needless to say, they have not been convicted. They still enjoy the presumption of innocence. Justice Shamgar expressed this notion in Sajadia:
An administrative detainee has not been convicted, nor is he carrying out a sentence. He is detained in accordance with a decision made by an administrative-military authority, as an exceptional emergency means due to security reasons … The aim of the detention is to prevent security hazards, which arise from actions that the detainee is liable to commit, where there is no reasonable possibility of preventing such hazards through standard legal action, such as criminal proceedings, or by taking administrative steps with milder consequences … The difference between a convicted prisoner and a detainee being held in order to prevent security hazards, is manifest in the status of the administrative detainee and his detention conditions.
Sajadia, at 821. In the same spirit Justice Bach noted:
With all due respect for security considerations, we must not forget that we are talking about detainees deprived of liberty without their having been convicted of any crime in standard criminal proceedings. We must not be satisfied with a situation in which the detention conditions of these detainees are poorer than the conditions of prisoners who have been sentenced to imprisonment after being convicted.
Sajadia, at 831. In a different context, Justice Zamir indicated that:
Administrative detention deprives an individual of his liberty in the most severe fashion. Liberty is denied, not by the court, but rather by an administrative authority; not by a judicial proceeding, but rather by an administrative decision.
Not only should we not allow the detention conditions of administrative detainees to fall short of those of convicted prisoners, we should also strive to ensure that the conditions of detainees surpass those provided to prisoners. These detainees continue to enjoy the presumption of innocence. See HCJ 8259/96 The Association for the Protection of the Rights of Jewish Civilians in Israel v. Commander of the IDF Forces in the West Bank (unreported case). This approach was established by the Emergency Powers Regulations (Detention) (Holding Conditions in Administrative Detention)-1981 [hereinafter the Detention Regulations]. The security considerations that led to the detention of these people do not justify holding them under unsatisfactory conditions.
9. An important legal source with regard to detention conditions is the Emergency Powers (Detention) Law-1979. The Detention Regulations were set out pursuant to the grant of authority contained in this law. These regulations set forth the standards that govern the detention conditions of those who are administratively detained in Israel. They also apply to whoever is detained in the area pursuant to security legislation. This is established in regulation 6(b) of the Emergency Regulations (Offences Committed in Israeli-Held Areas – Jurisdiction and Legal Assistance)-1967, which states:
Where an arrest warrant or detention order has been issued against any person in the area, pursuant to the proclamation or the order of a commander, such a warrant or order may be executed in Israel in the same manner that arrest warrants and detention orders are executed in Israel; and that person may be transferred, for detention, to the area where the crime was committed. 
Israel, High Court of Justice, Yassin case, Judgment, 18 December 2002, §§ 7 and 9.
Israel
In its judgment in the Marab case in 2003, Israel’s High Court of Justice stated:
18. An examination of this petition indicates that petitioners have raised four issues. First, petitioners contest the authority to detain. The petitioners claim that Orders 1500, 1502, 1505, 1512, and 1518 unlawfully create a new type of detention – the orders allow mass detention and free the authorities examining each case individually …
The Authority to Detain for the Purpose of Investigation
19. Detention for the purpose of investigation infringes the liberty of the detainee. Occasionally, in order to prevent the disruption of investigatory proceedings or to ensure public peace and safety, such detention is unavoidable. A delicate balance must be struck between the liberty of the individual, who enjoys the presumption of innocence, and between public peace and safety. Such is the case with regard to the internal balance within the state – between the citizen and his state – and such is the case with regard to the external balance outside the state – between a state that is engaged in war, and between persons detained during that war. Such is the case with regard to this balance in time of peace, and such is the case with regard to this balance in time of war. Thus, the general provision of Article 9.1 of the International Covenant on Civil and Political Rights (1966), which provides:
Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention.
The prohibition is not against detention, but rather against arbitrary detention. The various laws which apply to this matter, whether they concern times of peace or times of war, are intended to establish the proper balance by which the detention will no longer be arbitrary.
20. This approach accords with Israeli Law. Man’s inherent liberty is at the foundation of the Jewish and democratic values of the State of Israel. “Personal liberty is a primary constitutional right, and from a practical point of view, is a condition for the realization of other fundamental rights.” HCJ 6055/95 Tzemach v. Minister of Defense, at 261 (Zamir, J.) Nevertheless, this is not an absolute right. It may be restricted. A person may be detained for investigative purposes – in order to prevent the disruption of an investigation or to prevent a danger to the public presented by the detainee – where the proper balance between the liberty of the individual and public interest justifies the denial of that right. The balance demands that the detaining authority possess an evidentiary basis sufficient to establish suspicion against the individual detainee. Such is the case with regard to “regular” criminal detention, whether for investigative purposes or until the end of the proceedings. See sections 13, 21 and 23 of the Criminal Procedure (Enforcement Authorities-Detentions) Law-1996. Such is the case with regard to administrative detention. See section 2 of the Emergency Powers (Detentions) Law-1979, and HCJ Citrin v. IDF Commander in Judea and Samaria (unreported case); HCJ 1361/91 Masalem v. IDF Commander in Gaza Strip, at 444, 456; HCJ 554/81 Branasa v. GOC Central Command, at 247, 250; HCJ 814/88 Nassrallah v. IDF Commander in the West Bank, at 265, 271; HCJ 7015/0 Ajuri v. IDF Commander in the West Bank, at 352, 371.
Moreover, it must always be kept in mind that detention without the establishment of criminal responsibility should only occur in unique and exceptional cases. The general rule is one of liberty[.] Detention is the exception. The general rule is one of freedom. Confinement is an exception. See Crim.App. 2316/95 Ganimat v. State of Israel, at 649. There is no authority to detain arbitrarily. There is no need, in the context of this petition, to decide to what extent these principles apply to internal Israeli law regarding detention in the area. It suffices to state that we are convinced that internal Israeli law corresponds to international law in this matter. Furthermore, the fundamental principles of Israeli administrative law apply to the commander in the area. See HCJ Jamit Askhan Al-Maalmon v. IDF Commander in Judea and Samaria. The fundamental principles which are most important to the matter at hand are those regarding the duty of each public authority to act reasonably and proportionately, while properly balancing between individual liberty and public necessity.
21. International law adopts a similar approach concerning occupation in times of war. On the one hand, the liberty of each resident of occupied territory is, of course, recognized. On the other hand, international law also recognizes the duty and power of the occupying state, acting through the military commander, to preserve public peace and safety; see Article 43 of the Annex to the Hague Convention Regulations Respecting The Laws and Customs of War on Land-1907 [hereinafter Hague Regulations]. In this framework, the military commander has the authority to promulgate security legislation intended to allow the occupying state to fulfill its function of preserving the peace, protecting the security of the occupying state, and the security of its soldiers. See Article 64 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War-1949 [hereinafter the Fourth Geneva Convention]. Consequently, the military commander has the authority to detain any person suspect of committing criminal offences, and any person he considers harmful to the security of the area. He may also set regulations concerning detention for investigative purposes – as in the matter at hand – or administrative detention – which is not our interest in this petition. Vice-President M. Shamgar, in HCJ 102/82 Tzemel v. Minister of Defense, at 369, stated in this regard:
Among the authority of a warring party is the power to detain hostile agents who endanger its security due to the nature of their activities … Whoever endangers the security of the forces of the warring party may be imprisoned.
True, the Fourth Geneva Convention contains no specific article regarding the authority of the commander to order detentions for investigative purposes. However, this authority can be derived from the law in the area and is included in the general authority of the commander of the area to preserve peace and security. This law may be changed by security legislation under certain circumstances. Such legislation must reflect the necessary balance between security needs and the liberty of the individual in the territory. An expression of this delicate balance may be found in Article 27 of the Fourth Geneva Convention:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity … However, the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war.
Moreover, Article 78 of the Fourth Geneva Convention provides that residents of the area may, at most, be subjected to inter[n]ment or assigned residence. This appears to allow for the possibility of detention for the purpose of investigating an offence against security legislation. We would reach this same conclusion if we were to examine this from the perspective of international human rights law. International law, of course, recognizes the authority to detain for investigative purposes, and demands that this authority be balanced properly against the liberty of the individual. Thus, regular criminal detention is acceptable, while arbitrary detention is unacceptable. Orders such as Orders 378 and 1226 were issued with this in mind.
22. The petitioners argued that Order 1500, as well as Orders 1502, 1505, 1512, and 1518, establish a new type of detention, aside from standard criminal detention and administrative detention. Petitioners assert that his new type of detention allows for detention without cause, and should thus be nullified. Indeed, we accept that the law which applies to the area recognizes only two types of detention: detention for the purpose of criminal investigation, as in Order 378, and administrative detention, as in Order 1226. There exists no authority to carry out detentions without “cause for detention.” In Tzemel, Vice-President Shamgar expressed as much after quoting the provisions of Article 78 of the Fourth Geneva Convention:
The discussed Article allows for the imprisonment of persons, who, due to their behavior or personal data, must be detained for definitive defense reasons. As is our custom, we hold that every case of detention must be the result of a decision which weighs the interests and data regarding the person who is being considered for detention.
Tzemel at 375. Detentions which are not based upon the suspicion that the detainee endangers, or may be a danger to public peace and security, are arbitrary. The military commander does not have the authority to order such detentions. See Prosecutor v. Delalic, Tribunal for the Former Yugoslavia, IT-96-21. Compare also section 7(1) of the Guidelines of the Committee of Ministers of the Council of Europe on Human Rights and the Fight Against Terrorism: “A person suspected of terrorist activities may only be arrested if there are suspicions.” With this in mind, we turn to Order 1500.
23. Under Order 1500, an order may be given to hold a detainee in detention. Order 1500 defines a “detainee” as follows:
Detainee – one who has been detained, since March 29, 2002, during warfare in the area and the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, the IDF [Israel Defense Forces] or the public.
A similar provision exists in Order 1505:
Detainee – one who has been detained in the area during antiterrorism activities, while the circumstances of his detention raise the suspicion that he endangers or may be a danger to the security of the area, IDF security or the public.
From these provisions, we find that under Order 1500 as well as Order 1505 – and similarly under Orders 1512 and 1518 – detention may only be carried out where there is a “cause for detention.” The cause required is that the circumstances of the detention raise the suspicion that the detainee endangers or may be a danger to security. Thus, a person should not be detained merely because he has been detained during warfare; a person should not be detained merely because he is located in a house or village wherein other detainees are located. The circumstances of his detention must be such that they raise the suspicion that he – he individually and no one else – presents a danger to security. Such a suspicion may be raised because he was detained in an area of warfare while he was actively fighting or carrying out terrorist activities, or because he is suspect of being involved in warfare or terrorism.
Of course, the evidentiary basis for the establishment of this suspicion varies from one matter to another. When shots are fired at the defense forces from a house, any person located in the house with the ability to shoot may be suspect of endangering security. This basis may be established against a single person or a group of persons. However, this does not mean that Orders 1500, 1505, 1512 or 1518 allow for “mass detentions,” just as detaining a group of demonstrators for the purpose of investigation, when one of the demonstrators has shot at police officers, does not constitute mass detention. The only detention authority set in these orders is the authority to detain where there exists an individual cause for detention against a specific detainee. It is insignificant whether that cause applies to an isolated individual or if it exists with regard to that individual as part of a large group. The size of the group has no bearing. Rather, what matters is the existence of circumstances which raise the suspicion that the individual detainee presents a danger to security. Thus, for example, petitioner 1 was detained, as there is information that he is active in the Popular Front for the Liberation of Palestine, a terrorist organization. He recruited people for the terrorist organization. Petitioner 2 was detained because he is active in the Tanzim. Petitioner 3 was detained because he is a member of the Tanzim military. Thus, an individual cause for detention existed with regard to each of the individual petitioners.
24. Thus, the amended Order 1500 is included in the category of detention for investigative purposes. It is intended to prevent the disruption of investigative proceedings due to the flight of a detainee whose circumstances of detention raise the suspicion that he is a danger to security. The difference between this detention and regular criminal detention lies only in the circumstances under which they are carried out. Detention on the authority of the amended Order 1500 is carried out under circumstances of warfare, whereas regular criminal detention is carried out in cases controlled by the police. In both cases, we are dealing with individual detention based on an evidentiary basis that raises individual suspicion against the detainee. For these reasons, we reject the petitioners’ first claim.
47. Section 2(b) of Order 1500 provides:
The detainee shall be given the opportunity to voice his claims within eight days of his detention.
This provision remains valid under Order 1505. Section 2 of Order 1518 shortens this period of detention without investigation to four days. The petitioners claim that the provision itself is illegal. They assert that it constitutes an excessive violation of the detainee’s liberty. It undermines the right to liberty and denies due process. It may lead to mistaken or arbitrary detrainments. Conversely, the respondents claim that the significance of the provision is that it compels the investigators to question the detainee within eight days, in order to make an initial investigation of his identity and hear his account of his detention. This period cannot be shortened due to the large number of detainees, on the one hand, and the constraints limiting the number of professional investigators, on the other. It was noted before us that the investigating officials have limited capabilities, and they are not equipped to deal with such a large number of detainees in a more compact schedule.
48. We accept that investigations should not be performed during warfare or during military operations, nor can the detainee’s account be heard during this time. The investigation can only begin when the detainee, against whom there stands an individual cause for detention, is brought to a detention facility which allows for investigation. Moreover, we also accept that at a location which holds large number of detainees, some time may pass before it is possible to organize for initial investigations. This, of course, must be done promptly. It is especially important to begin the investigation rapidly at this initial stage, since simple facts such as age, circumstances of detention and identity, which may determine whether the detention should be continued, may become clear at this stage. Of course, often this initial investigation is insufficient, and the investigation must continue. All of this must be done promptly.
Respondents are of course aware of this. Their argument is simple: there is a lack of professional investigators. Unfortunately, this explanation is unsatisfactory. Security needs, on the one hand, and the liberty of the individual on the other, all lead to the need to increase the number of investigators. This is especially true during these difficult times in which we are plagued by terrorism, and even more so when it was expected that the number of detainees would rise due to Operation Defensive Wall. Regarding the considerations of individual liberty that justify such an increase, Justice Dorner has stated:
Fundamental rights essentially have a social price. The preservation of man’s fundamental rights is not only the concern of the individual, but of all of society, and it shapes society’s image.
Ganimat, at 645. In a similar spirit, Justice Zamir, in Tzemach, at 281, has noted:
A society is measured, among other things, by the relative weight it attributes to personal liberty. This weight must express itself not only in pleasant remarks and legal literature, but also in the budget. The protection of human rights often has its price. Society must be ready to pay a price to protect human rights.
Such is the case in the matter at hand. A society which desires both security and individual liberty must pay the price. The mere lack of investigators cannot justify neglecting to investigate. Everything possible should be done to increase the number of investigators. This will guarantee both security and individual liberty. Furthermore, the beginning of the investigation is also affected by our holding that the arrangements according to which a detainee may be held for 18 days without being brought before a judge, under Order 1500, and for 12 days, under Order 1505, 1512, and 1518, to be illegal. Now, the detainee’s own appeal to a judge will require that the investigation be carried out sooner.
49. We conclude, from this, that the provisions of section 2(b) of Order 1500 and section 2 of Order 1518 are invalid. The respondents must decide on a substitute arrangement. For this reason, we suspend our declaration that section 2(b) of Order 1500 and section 2 of Order 1518 are void. It will become valid only after six months pass from the date of this judgment. Compare Tzemach, at 284. Here too, we considered the respondents’ request to present us with confidential information, see supra para. 36, and here too we are of the opinion that such is neither appropriate nor desirable. This suspension period should be utilized for reorganization, which should be in accord with international and Israeli law. 
Israel, High Court of Justice, Marab case, Judgment, 5 February 2003, §§ 18–24 and 47–49.
Israel
In its judgment in the Sadr case in 2003, Israel’s High Court of Justice stated:
2.In Barham it was decided that in light of the impingement upon individual liberties involved in the use of the military commander’s authority to order administrative detention, a “wide model” of judicial review of the detention decisions is to be recognized. In the judgment (Or, J.) it was determined that in reviewing the justification for an administrative detention order which was based upon classified information, the legal judge does not fulfill his duty merely by examining the question whether “it was prima facie permissible for the authorized agency to decide in the way it did on the basis of the material before it,” but rather that he must also “examine the question of the reliability of the submitted material as part of his assessment of the weight of the material,” and that within that framework he must also “demand and receive explanations from the officials capable of providing them” (p. 346 of the judgment). However, the Court rejected an argument raised before it, according to which in examining the reliability of the classified information, the military judge must also examine the informants who relayed the information against the detainee to the authorities, in order to receive a direct impression of their reliability. The Court refrained from deciding the question whether and when such examination can be held, and on that issue it sufficed itself with the assumption that “even if such examinations can be held, it is clear that they will not be performed routinely, and only in exceptional cases to be determined according to the discretion of the legal judge, in accordance with the balance between the necessary security needs … and the basic rights of liberty and due process” (ibid). [emphasis in original]
6.On the general level we wish to comment that it was not for no reason that it was determined in Barham that the scope of the examination which the legal judge is obligated to perform in reviewing the justification for the administrative detention order is a matter of his discretion. That ruling is based upon judicial experience and common sense: the scope of the examination and the means needed in order to perform it are derived from the amount, the level, and the quality of the classified material submitted to the judge. Information relating to a number of events is not the same as information relating to a sole event; information from one source is not the same as information from various sources; and information based solely upon statements of agents and informants is not the same as information that is also based upon or reinforced by documents attained by the security services or intelligence stemming from the use of special devices. Furthermore, it appears from our aggregate experience that in many cases the information submitted to the judge also includes data regarding the informants, including information regarding the essence of their relationship with the General Security Service or with other agencies. On the basis of viewing the written material – which is likely to be accompanied by questions presented to the official who submitted the material to him (a representative of the prosecution or a representative of the General Security Service) – the judge can decide whether the material before him is sufficient in order to persuade him regarding the existence of reliable information which can justify the detention. If the Judge is of the opinion that the case before him requires deeper and more detailed examination of the information, it is presumed that he will order such examination and determine the appropriate ways to carry it out. Thus, for example, the judge might summon additional officials among the General Security Service who were involved in the collection of the material, in order to get a direct impression of their assessments regarding its reliability and to examine their considerations. 
Israel, High Court of Justice, Sadr case, Judgment, 27 July 2003, §§ 2 and 6.
Israel
In its judgment in the Salame case in 2003, Israel’s High Court of Justice stated:
4. Petitioners argue that there is no justification for the extension of their administrative detention, and that its extension is not legal. They point out the clear impingement which their administrative detention causes to their basic rights. Thus, the means of administrative detention is not to be employed when the petitioners can be put on criminal trial. According to their argument, a real effort to investigate the suspicions against them has not been made, and new intelligence material in their cases has not been collected, and thus, as time has passed, they should be released. Petitioners claim that the military courts should have obliged the security agencies to show a basis for the suspicions against them with continued investigation, and made the confirmation of the extension orders conditional upon such investigation. Thus it would have been possible to exchange the path of administrative detention with a proper criminal proceeding. Petitioner no. 3 further points out that he has no history of suspicions of hostile activity, and thus there is no justification for his continued administrative detention. Respondent argues that the extension of the administrative detentions is legal. According to his argument, this Court, sitting as a High Court of Justice, should not serve as an additional instance of appeal over the military courts, and that petitioners’ arguments are essentially appellate in nature. On the merits, respondent claims that the evidence in the cases of each of petitioners justified the extension of their administrative detention, even considering the fact that the detention periods are not short. Regarding the duty to investigate the evidence, respondent explains that the evidence collected against respondents sic is intelligence material which is varied and reliable, but in the investigations that the security officials have carried out, declassified information that can be used in a criminal proceeding was not collected.
The Normative Framework
5. Respondent’s authority to order administrative detention is arranged in the Order Regarding Administrative Detention (Temporary Provision)(Judea and Samaria)(no. 1226), 5738-1988 (hereinafter: “the order”), as it has been amended from time to time. Respondent can order administrative detention if there is “reasonable basis to assume that reasons of the security of the area or the security of the public require that a person be held in detention” (section 1(a) of the order). Respondent shall not exercise his authority pursuant to the order “unless he is of the opinion that it is necessary for imperative reasons of security” (section 3 of the order). The period of detention should not be longer than six months. Respondent is permitted, “from time to time”, to order “the extension of the original detention order for a period no longer than six months” (section 1(b) of the order). This authority of respondent is subject to judicial review. A person who was been detained pursuant to the order must be brought before a legal judge within 18 days of his detention. The legal judge may confirm the detention order, to annul it, or to shorten the period of detention determined in it (section 4 of the order). The legal judge’s decision can be appealed before a judge of the military court of appeals (section 5a of the order). These provisions also apply to decisions regarding the extension of administrative detention (section 1(a) of the order). In the framework of these proceedings, the administrative detainee is allowed to be represented before the military courts.
6. Petitioners’ argument in principle is that the legality of the extension of their administrative detention is conditional upon the existence of a systematic investigation on the part of security officials, in order to collect evidence that can replace the administrative detention proceeding with a criminal proceeding to be prosecuted against the detainee, allowing him to confront the evidence against him. According to their argument, administrative detention should not be extended when such an investigation is not underway.
Indeed, the existence of the possibility of carrying out a criminal proceeding against a person suspect of hostile activity on a security background must be preferred to an administrative act against him (HCJ 7015/02 Ajuri v. The Commander of IDF Forces in the West Bank, 56 PD (6) 352, 373). In a criminal proceeding the accused of terrorist activity or of aiding such activity can confront the evidence against him, an option which is at times denied him in the administrative proceeding. However, it is important to remember that it is not always possible, for reasons of protecting sources of information, to hold a criminal proceeding. It should not be forgotten that administrative detention and criminal proceedings act on different, and separate, planes. The point of departure is that administrative detention is about preventing a future danger to the security of the State or the security of the public. Administrative detention is not intended to be a means for punishing for acts that were committed in the past, or to serve as a substitute for the penal means (ADP 2/82 Lerner v. The Minister of Defense, 42 PD (3) 529, 531). Reliable evidence justifying the administrative detention of a person can be amassed by the authorities “without there being a possibility of bringing the witnesses to testify what they saw with their own eyes or heard with their own ears” (HCJ 554/81 Baransa v. GOC Central Command, 36 PD (4) 247, 251). Thus, the continuation of the ability to act via administrative detention should not be made conditional upon investigation that can have implications on the penal plane.
7. However, that cannot be the end of the discussion of the issue before us. This Court has stated that the purpose of the Emergency Powers Law (Detention), 5739-1979 is to preserve the security of the State, but at the same time to preserve human dignity and freedom (FHCrim 7048/97 A. v. The Minister of Defense, 54 PD (1) 721, 740). That is also applicable to the detentions order before us. Indeed, the order is intended to preserve the security of the public and the security of the area (section 1(a) of the order). However, it is clear that administrative detention pursuant to it impinges severely upon the liberty of the detainee. The order is intended to ensure that this impingement upholds constitutional and legal standards. Thus, the order arranges the existence of judicial review of the decision to order administrative detention and the decision to extend it. The information and evidence that the security officials present is to be examined “through a careful and meticulous examination” (ADP 4/94 Ben Chorin v. The State of Israel, 48 PD (5) 329, 335 (D. Levin, J.). Judicial review of the detention proceeding is substantive. In its framework, the administrative detainee has a right to representation. The military court, and the military court of appeals, can raise the question of the reliability of the evidence, and not merely examine whether a reasonable agency would make the decision on the basis of that material (HCJ 4400/98 Barham v. Legal Judge Col. Shefi, 52 PD (5) 337, 346). This judicial review is an internal part of the process leading to the legality of the administrative detention order, or the process leading to the legality of its extension (ADP 2/86 A. v. The Minister of Defense), 41 PD (2) 508, 515–516; HCJ 3239/02 Marab v. The Commander of IDF Forces in the Judea and Samaria Area, 57 PD (2) 349, 368–369). In addition, respondent’s decision to order a person’s administrative detention or to extend such detention is also subject to the review of the High Court of Justice. Although this Court does not sit as a court of appeals over the military court or the military court of appeals, in employing its judicial review, this Court considers the severe impingement to the human rights of administrative detainees, and grants considerable weight to it while examining the basis which led the security agencies to employ the means of administrative detention, and the discretion exercised by the military courts.
8. The need to maintain a proper balance between the security of the State and the protection of the human rights of detainees is not manifest merely in the existence of an arrangement for judicial review. It is also manifest in the routine conduct of the security agencies related to the decision to put a person in administrative detention or to extend administrative detention. That is especially the case regarding the administrative evidence material that serves as a basis for the decision to employ the means of administrative detention. The security evidence material is not uniform. As Mazza, J. recently noted:
“Information relating to a number of events is not the same as information relating to a sole event; information from one source is not the same as information from various sources; and information based solely upon statements of agents and informants is not the same as information that is also based upon or reinforced by documents attained by the security services or intelligence stemming from the use of special devices” (HCJ 5994/03 Sadr v. The Commander of IDF Forces in the West Bank (yet unpublished, paragraph 6).
The strength of the evidence needed in order to justify administrative detention can change with the passage of time. Evidence that justifies the issuance of an administrative detention order may not be sufficient in order to justify the extension of that same detention. And evidence justifying the extension of the administrative detention order may not justify an additional extension of it. The security officials must examine whether the administrative evidence material against the detainee can justify the continuation of his detention. They have the duty to take into account new relevant material that can be attained by reasonable means (see HCJ 297/82 Berger v. The Minister of the Interior, 37 PD (3) 29, 44). Nevertheless, it cannot be said that the fact that no updated evidential material has been attained justifies, in and of itself, not extending the administrative detention order. All depends upon the circumstances of the case. In any case, there must be an examination whether the evidence material before the security officials can provide a basis for the extent of dangerousness that is required in order to justify a detainee’s continued detainment. One must take into account, for example, the nature of the suspicions against the detainee, the strength of the evidence against him, et cetera. There will be cases in which the fact that updated evidence has not been collected against an administrative detainee will be held against respondent when he wishes to extend the administrative detention. In such cases it will be said that the foundation of evidence in the hands of the security officials can no longer justify the extension of the administrative detention (BARUCH BRACHA, 2 MISHPAT MINHALI 304 (5756)). 
Israel, High Court of Justice, Salame case, Judgment, 11 August 2003, §§ 4–8.
Israel
In its judgment in the Al-Ahmar case in 2004, Israel’s High Court of Justice stated:
Petitioner’s counsel argued before us that petitioner’s detention has no justification, and that the time has come to release him and send him on his way. Furthermore, so further argued Ms. Tsemel, the longer a person’s detention continues, the greater the need is for evidential material justifying the continuation of the detention. A person’s dangerousness – so argues Ms. Tsemel – becomes less acute with the passage of time, and the longer the administrative detention continues, the newer and better the evidential material that is before the authorized agency must be. We agree only to a part of Ms. Tsemel’s argument. We agree with her, of course, that the longer the administrative decision continues, so the balance between the conflicting considerations might change, for the benefit of the detainee. However, we shall not agree with her that there is necessarily a need for newer and better evidential material, as she stated it. At all times the authorized agency must weigh the conflicting considerations against each other at the time of consideration, and every case has its own circumstances. See and compare: HCJ 5784/03 Salame v. The Commander of IDF Forces in the Judea and Samaria Area (yet unpublished). The question in each and every case will revolve around the intensity of the danger posed by the detainee to the lives and security of the individual and society, and, of course, the human right of liberty.
We heard respondents in camera – like the judicial instances before us – and we read written material that was presented to us. We are of the opinion that this evidential material should not be revealed to petitioner, not even in part, all for the security of the public and the protection of human life. The written material and the supplemental oral arguments persuaded us, as they persuaded the instances before us, that petitioner’s dangerousness to the individual and society is most great, and that there is no defect or fault in the decision to detain him as decided, even after the substantial period that he has been in administrative detention.
Ms. Tsemel further argued before us that it is right that we should examine alternatives to detention for petitioner, including release under conditions, even burdensome conditions. That argument was examined during the last judicial review performed upon the administrative detention order, and we agree with the opinion of the legal judge, that the alternatives proposed by petitioner are not appropriate ones, considering his dangerousness. The idea that the petitioner would move his residence outside of the country for a period of years was raised, and respondents were willing to consider it; however petitioner rejected it. We therefore see that before us as well, there is no appropriate alternative to detention.
In conclusion: we found no cause to intervene in the authorities’ decision to detain petitioner in administrative detention, and we decide to reject the petition. 
Israel, High Court of Justice, Al-Ahmar case, Judgment, 26 February 2004.
Israel
In its judgment in the IDF West Bank Military Commander case in 2005, Israel’s High Court of Justice stated:
8.(a) (1) The normative framework is the Order Regarding Administrative Detention (Temporary Provision) Judea and Samaria (no. 1226) 5748-1988, as interpreted in the judgment in HCJ 2320/98 El Amla v. The Commander of IDF Forces in the Judea and Samaria Area (Zamir, J.). That judgment attempted to outline the balance regarding the complex issue of administrative detention. It goes without saying that administrative detention, in and of itself, is a harsh and severe means, in the employment of which the courts and tribunals have a special duty of supervision; see HCJ 5555/05 Federman v. GOC Central Command (yet unpublished). Indeed, in a criminal trial the investigation material is relayed to the accused; the material hidden from him for reasons set out by law cannot be used against him. In administrative detention, the detainee cannot view the material against him, which serves as the basis for his detention, and thus he cannot directly defend himself against it; nor is he put on criminal trial, so he cannot carry out the needed investigations regarding the evidence. However, administrative detention is a necessary means, forced upon us in conditions of a severe war against terrorism, and it is but obvious that sources (who at times are liable to pay with their lives if they are revealed) or methods or means for attaining intelligence information cannot be revealed. In light of all that, a Court reviewing administrative detention has, as mentioned, a special duty to inquire and investigate regarding the material presented to it, as, to a certain extent, it serves as the detainee’s mouth and as his “agent” – in the sense of the trust put in it; it must remember that “there is no justification for such a severe impingement upon human liberty, unless it is done to prevent a real danger to the security of the public” (El Amla, Zamir, J., at p. 349) and for “imperative security reasons” (the aforementioned Order Regarding Administrative Detention (Temporary Provision) Judea and Samaria (1226), section 1).
(2) In El Amla it was determined – as is obvious in the complex reality – that “the purpose of the detentions order is first and foremost the safeguarding of the security of the area and the security of the public. However, that purpose dovetails with an additional purpose – the protection of human liberty. The detentions order determines that every detention order can be appealed before a judge, and that the judge has the jurisdiction to annul the order or to shorten the detention. It is thus clear that the detentions order authorized the judge to balance between the security needs and human liberty” (p. 356). In that judgment, this Court intended to ensure that if a legal judge decided for a substantive reason not to extend, or to shorten, a period of administrative detention, there shall be no “going around” the decision by issuing a new detention order without there being a significant change regarding the dangerousness of the detainee (see ibid, at pp. 357–358). The summary of the ruling is that “the military commander may not extend the period of detention after a judge has decided to shorten the period, except in the case of one of the following: (1) the judge decided to shorten the detention order so that the military commander can reconsider, toward the end of the shortened period, if there is justification for the continuation of the detention, or (2) after the judge decided to shorten the detention period, new information was received, or a change of circumstances that can significantly alter the level of dangerousness of the detainee has occurred (p. 364).
(3) That ruling still stands, firmly. 
Israel, High Court of Justice, IDF West Bank Military Commander case, Judgment, 4 August 2005, § 8.
Israel
In its judgment in Anonymous v. Commander of IDF Forces in Judea and Samaria in 2005, Israel’s High Court of Justice stated:
5. The power to order administrative detention is granted, in the Administrative Detentions Order, to Respondent 1. The Administrative Detentions Order states the conditions in which Respondent 1 may order administrative detention. These reasons are security reasons (see HCJ 5784/03, Salameh v. Commander of IDF Forces in Judea and Samaria, P. D. 57 (6) 721, 725 (hereafter – Salameh)). Respondent 1 may only exercise his power if there is a “reasonable basis to assume that reasons of security of the region or public security require that a particular person be held in detention” and there are “imperative security reasons” for this (sections 1(a), 3 of the Administrative Detentions Order (see, also, Salameh, supra). Indeed, imprisonment of a person in administrative detention severely impedes a person’s liberty. “Liberty is denied, not by a court, but by an administrative authority; not in a judicial proceeding, but by administrative decision; generally, not on the basis of disclosed facts, which one can cope with, but on the basis of privileged material (comments of Justice Zamir in HCJ 2320/98, Al-Amleh v. Commander of IDF Forces in Judea and Samaria, P. D. 52 (3) 346, 349). In considering issuance of an administrative detention order, the military commander must balance the right of the administrative detainee to personal liberty against the security considerations. The work of balancing the severe harm to freedoms of the individual and public security is not simple. This task is imposed on the military commander. He has discretion in the matter.
6. The military commander must exercise his discretion proportionately. In this context, the length of time a person has been in administrative detention is important. I noted this in the past, in the context of the Emergency Powers (Detentions) Law, 5739 – 1979:
Administrative detention cannot continue indefinitely. The longer the period that the detention lasts, the greater the need for reasons of considerable weight to justify further extension of the detention. With the passage of time, the means of administrative detention become so burdensome as to cease to be proportionate. Indeed, even when the power to impair liberty by means of a detention order is given, use of this power must be proportionate. It is forbidden to cross the “breaking point” beyond which the administrative detention is no longer proportionate (Crim. Reh. 7048/97, A. and other Anonymous Persons v. Minister of Defense, P. D. 54 (1) 721, 744).
These comments are appropriate also for administrative detention under the Administrative Detentions Order (compare Salameh, supra, 726). “The longer the administrative detention lasts, the greater the weight of the detainee’s right to personal liberty grows in balancing it against considerations of the public interest, and with it increases the burden on the competent authority to provide a basis for the necessity of continuing to hold the person in detention” (HCJ 11006/04, Qadri v. Commander of IDF Forces in Judea and Samaria (not reported), paragraph 6; see, also, HCJ 4960/05, Gafreh v. Commander of IDF Forces in the West Bank (not reported)).
7. The question of proportionality of the use of the means of administrative detention will be examined according to the objective underlying the Administrative Detentions Order. The order empowers the military commander to order administrative detention when reasons of public security dictate. The administrative detention anticipates a future danger. It is, at its basis, not a punitive means, but a preventive means (compare Adm. App. 8607/04, Fahima v. State of Israel (not reported), paragraph 8). Taking into account this objective of administrative detention, it is understood that extension of the period of administrative detention must be examined in accordance with the period of detention and the degree of dangerousness posed by the detainee. Continuation of the detention is a function of the danger. This danger is examined according to the circumstances. It depends on the level of danger the evidence attributes to the administrative detainee. It depends on the credibility of the evidence itself and the degree to which it is up to date. The longer that the administrative detention lasts, the greater the burden imposed on the military commander to show the dangerousness of the administrative detainee.
8. The discretion given to the military commander is subject to judicial review. Because administrative detention infringes human rights, judicial review of this proceeding, both by the military courts and by this court, is very important. “The judicial review is substantive … The Military Court and the Military Court of Appeals may consider the question of the credibility of the evidentiary material, and not only examine if a reasonable authority would have made its decision on the basis of the aforesaid material … This judicial review is an internal part of consolidating the legality of the administrative detention order or of consolidating the legality of the extension of the order” (Salameh, supra, 726–727; see, also, HCJ 4400/98, Barham v. Jurist Judge Lt. Col. Shefi, P. D. 52 (5) 337). The military courts must examine the material relating to holding a person in administrative detention. The judicial review must be done as soon as possible following the administrative detention (compare HCJ 3239/02, Marab v. Commander of IDF Forces in Judea and Samaria, P. D. 57 (2) 349. 368-372); compare recently also HCJ 7607/05, Abdullah v. Commander of IDF Forces in the West Bank (not reported), paragraph 9). Thus, where the detention orders specify a certain time in which the administrative detainee must be brought before a judge for the purpose of commencing the hearing in his matter (section 4(a) of the [Administrative Detentions Order; see, also, Marab, 382–384). In addition to the military courts, the respondents’ discretion is subject to the review of the High Court of Justice (compare HCJ 1052/05, Federman v. OC Central Command Moshe Kaplinsky (not reported), paragraph 6). “Although this court does not sit as an appellate court of the Military Court and of the Military Court of Appeals, in carrying out its judicial review, this court takes into account the severe harm to human rights of administrative detainees, and gives this factor substantial weight when examining the foundation that led the security authorities to impose administrative detention, and the discretion of the military courts”. 
Israel, High Court of Justice, Anonymous v. Commander of IDF Forces in Judea and Samaria, Judgment, 22 December 2005, §§ 5–8.
Israel
In its judgment in the A. v. State of Israel case in 2008, concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
13. … [S]omeone who is an “unlawful combatant” is subject to the Fourth Geneva Convention [1949 Geneva Convention IV], but according to the provisions of the aforesaid convention it is possible to apply various restrictions to them and inter alia to detain them when they represent a threat to the security of the state.
15. … The mechanism provided in the law [Internment of Unlawful Combatants Law (2002)] is a mechanism of administrative detention in every respect … whose purpose is to protect state security by removing from the cycle of hostilities anyone who is a member of a terrorist organization or who is taking part in the organization’s operations against the State of Israel, in view of the threat that he represents to the security of the state and the lives of its inhabitants.
16. It should be noted that the actual power provided in the law for the administrative detention of a “civilian” who is an “unlawful combatant” on account of the threat that he represents to the security of the state is not contrary to the provisions of international humanitarian law. Thus article 27 of the Fourth Geneva Convention, which lists a variety of rights to which protected civilians are entitled, recognizes the possibility of a party to a dispute adopting “control and security” measures that are justified on security grounds. …
17. … The principle underlying all the detention provisions provided in the Fourth Geneva Convention is that it is possible to detai[n] “civilians” for security reasons in accordance with the extent of the threat that they represent. According to the aforesaid convention, there is a power of detention for security reasons, whether we are concerned with the inhabitants of an occupied territory or we are concerned with foreigners who were found in the territory of one of the states involved in the dispute. In the appellants’ case, although the Israeli military rule in the Gaza Strip has ended, the hostilities between the Hezbollah organization and the State of Israel have not ended, and therefore the detention of the appellants in the territory of the State of Israel for security reasons is not inconsistent with the detention provisions in the Fourth Geneva Convention.
18. It is one of the first principles of our legal system that administrative detention is conditional upon the existence of a ground for detention that derives from the individual threat of the detainee to the security of the state. … This court has held in the past that administrative detention is basically a preventative measure; administrative detention was not intended to punish someone for acts that have already been committed or to deter others from committing them, but its purpose is to prevent the tangible risk presented by the acts of the detainee to the security of the state. It is this risk that justifies the use of the unusual measure of administrative detention that violates human liberty (see and cf. Ajuri v. IDF Commander in West Bank, at pages 370–372, and the references cited there).
19. It should be noted that the individual threat to the security of the state represented by the detainee is also required by the principles of international humanitarian law. …
20. No one before us disputes that the provisions of the Internment of Unlawful Combatants Law should be interpreted in accordance with the aforesaid principle, which make administrative detention conditional upon proving the existence of a ground that establishes an individual threat. Indeed, an examination of the provisions of the law in accordance with the aforesaid principles shows that the law does not allow anyone to be detained arbitrarily, and that the power of detention under the law is conditional upon the existence of a ground of detention that is based on the individual threat represented by the detainee. …
21. … [I] in order to detain a person it is not sufficient for him to have made a remote, negligible or marginal contribution to the hostilities against the State of Israel. In order to prove that someone is an “unlawful combatant,” the state needs to prove that the detainee made a contribution to the waging of hostilities against the state, whether directly or indirectly, in a manner that can indicate his individual threat. … [I]n order to establish a ground for detention with regard to someone who is a member of an active terrorist organization whose self-declared goal is to fight unceasingly against the State of Israel, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense, in such a way that his detention will be justified under the law.
Thus we see that for the purpose of detention under the law at issue, the state is liable to prove with administrative proofs that the detainee is an “unlawful combatant” with the meaning that we discussed, namely that the detainee took a direct or indirect part that involved a contribution to the fighting – a part that is not negligible or marginal – in the hostilities against the State of Israel, or that the detainee belongs to an organization that is carrying out hostilities, in which case we should consider the detainee’s connection and the nature of his contribution to the cycle of hostilities of the organization in the broad sense of this concept. …
22. In our remarks above, we discussed the interpretation of the definition of “unlawful combatant.” According to the aforesaid interpretation, the state is required to prove that the detainee took a direct or indirect part, which was of significance, in the hostilities against the State of Israel, or that the detainee belonged to an organization that carries out hostilities, all of which while taking into account the connection and the extent of his contribution to the organization’s cycle of hostilities. In these circumstances a person’s detention may be required in order to remove him from the cycle of hostilities that harms the security of the citizens and residents of the State of Israel. The question that arises in this regard is: what evidence is required in order to persuade the court that the detainee satisfies the conditions of the definition of an “unlawful combatant” with the aforesaid meaning.
This court has held in the past that since administrative detention is an unusual and extreme measure, and in view of its violation of the constitutional right to personal liberty, clear and convincing evidence is required in order to prove a security threat that establishes a basis for administrative detention (see Ajuri v. IDF Commander in West Bank, at page 372, where this rule was determined with regard to the measure of assigned residence; also see and cf. the remarks of Justice A. Procaccia in ADA 8607/04 Fahima v. State of Israel [2005] IsrSC 59(3) 258, at page 264; HCJ 554/81 Beransa v. Central Commander [1982] IsrSC 36(4) 247). It would appear that the provisions of the Internment of Unlawful Combatants Law should be interpreted similarly. In view of the importance of the right to personal liberty and in view of the security purpose of the aforesaid law, the provisions of sections 2 and 3 of the law should be interpreted in such a way that the state is liable to prove, with clear and convincing administrative evidence, that even if the detainee did not take a direct or indirect part in the hostilities against the State of Israel, he belonged to a terrorist organization and made a significant contribution to the cycle of hostilities in its broad sense, in such a way that his administrative detention is justified in order to prevent his returning to the aforesaid cycle of hostilities.
The significance of the requirement that there is clear and convincing evidence is that importance should be attached to the quantity and quality of the evidence against the detainee and the degree to which the relevant intelligence information against him is up to date; this is necessary both for proving the detainee to be an “unlawful combatant” under section 2 of the law and also for the purpose of the judicial review of the need to continue the detention, to which we shall return later. Indeed, the purpose of administrative detention is to prevent anticipated future threats to the security of the state, and naturally we can learn of these threats from tangible evidence concerning the detainee’s acts in the past (see the remarks of President M. Shamgar in Beransa v. Central Commander, at pages 249–250; HCJ 11026/05 A v. IDF Commander (unreported decision of 22 December 2005), at paragraph 5). Notwithstanding, for the purposes of long-term detention under the Internment of Unlawful Combatants Law, adequate administrative evidence is required, and a single piece of evidence with regard to an isolated act carried out in the distant past is insufficient.
23. It follows that for the purposes of detention under the Internment of Unlawful Combatants Law the state is required to prove with clear and convincing evidence that, even if the detainee did not take a significant direct or indirect part in the hostilities against the State of Israel, he belonged to a terror organization and made a contribution to the cycle of hostilities in its broad sense. It should be noted that this requirement is not always easy to prove, since proving that someone is a member of a terrorist organization is not the same as proving that someone is a member of a regular army, because of the manner in which terrorist organizations work and the manner in which people join their ranks. …
33. … [A]s a rule the use of the extreme measure of administrative detention is justified in circumstances where other measures, including holding a criminal trial, are impossible, because of the absence of sufficient admissible evidence or the impossibility of revealing privileged sources, or when holding a criminal trial does not provide a satisfactory solution to averting the threat presented to the security of the state in circumstances where after serving the sentence the person concerned is likely to become a security danger once again. 
Israel, Supreme Court of Israel, Court of Criminal Appeals, A. v. State of Israel case, Judgment, 11 June 2008, §§ 13, 15–23 and 33.
Israel
In its judgment in the Said case in 2008, concerning the continued detention of a Palestinian from Gaza under the Internment of Unlawful Combatants Law (2002), as amended in 2008, Israel’s Supreme Court stated:
Purpose of the Internment Law
19. The Internment Law] is intended to protect state security by removing foreign individuals engaged in terrorist actions from the cycle of hostilities in light of their danger to state security. The threat to state security is a significant condition forming the basis of the grounds for the internment. Interpretation and implementation of the provisions of the Law reflect an inclination to reduce, as far as possible, the degree of the violation of the human right to liberty, that is necessary to achieve the security objective, to satisfy the requirement of constitutional proportionality drawn from the Basic Law: Human Dignity and Liberty, and from principles of international law.
Conditions for an internment order – “unlawful combatant” who poses a personal threat, and fear of harm to state security
20. As stated above, the Law requires that two conditions be satisfied for issuance of an internment order: the person is an “unlawful combatant,” and the harm to state security anticipated from his release (section 3(b)(1) of the Law).
21. In regard to the definition of “unlawful combatant,” according to the guiding rule, the detainee must pose a personal threat for this definition to be met. Pursuant to section 2 of the Law, personal threat is learned from one the two following things: the detainee himself took part in hostilities against Israel, or he belongs to a force that carries out hostilities against the State of Israel. Under the first alternative, it is required that the person take part in hostilities against the State of Israel, directly or indirectly, and in this regard, it is not sufficient for him to have made a remote, negligible or marginal contribution to the hostilities, but he must have made a contribution to the waging of hostilities in a manner that can indicate his individual threat. As for the second alternative, regarding a person who is a member of a force carrying out hostilities against the state, it is insufficient to show any tenuous connection with a terrorist organization. On the other hand, it is not necessary for that person to take a direct or indirect part in the hostilities themselves, and it is possible that his connection and contribution to the organization will be expressed in other ways that are sufficient to include him in the cycle of hostilities in its broad sense (paragraph 21 of the judgment in A. & B.) A. v. State of Israel case in 2008].
22. The second condition required to establish grounds for detention under this law requires that there be a reasonable basis for believing that the release of the detainee will harm state security. Under section 5(c) of the Law, cancellation of the internment order is possible only when release of the detainee will not harm state security, or when there are special reasons that justify release.
Quality of the evidence to establish a ground for internment
23. The guiding rule further states that, in regard to establishing the conditions for a person to come within the meaning of “unlawful combatant,” there is a need for clear, convincing, and updated administrative evidence from the perspective of quantity and quality (paragraph 22 of the judgment in A. & B.).
Legal presumptions in sections 7 and 8 of the Internment Law
24. The presumption in section 7 of the Internment Law states that, with regard to this Law, a person who took part in hostilities of a force that carries out hostilities against Israel, or is a member of such a force, shall be regarded as someone whose release will harm state security as long as the hostilities of that force against the State of Israel have not ended, as long as the contrary has not been proved. The presumption in section 8 states that the determination of the Minister of Defense, in a certificate signed by him, that a certain force carries out hostilities against Israel or that the hostilities of that force against Israel have come to an end or have not yet come to an end shall serve as evidence in any legal proceeding, unless the contrary is proved.
29. The conclusions arising from examination of the fundamental elements of the Internment Law, based on the guiding rule in A. & B., are:
First, the Internment Law passes the constitutional test. The harsh security reality in Israel requires that significant security measures be taken to protect residents of Israel. Achieving the security objective entails significant harm to the personal liberty of the detainees. There is a reasonable relationship between the harm to liberty and the public interest; however, the reasonableness of this relationship depends on proper and cautious use of the means given to the competent authority under the Law. The Law enables significant violation of the personal liberty of the detainee, for which reason there is a duty to use the means through which its objective can be achieved with minimal violation of human rights to the extent possible.
30. In this framework, there is a duty to conduct a careful examination of the specific question of existence of grounds for the internment and of justification for the continued validity of the internment order. The extreme means of detention, which enable denial of personal liberty of a person for a long time, by an order that has no defined date of termination, places a special duty both on the competent authority and on the court in making the judicial review to carefully examine, from time to time, the extent of the justification for continuation of the detention, while exercising restraint in use of the detention means and limiting it to situations in which real security needs require it. The requisite balance between real security needs and use of the extreme means, which enables denial of a person’s liberty under the Internment Law, must be satisfied in the specific implementation of the Law, to ensure its operation in a manner that satisfies fundamental constitutional standards. 
Israel, Supreme Court of Israel, Court of Criminal Appeals, Said case, Judgment, 7 November 2008, §§ 19–24 and 29–30.
[emphasis in original]
Israel
In 2008, in its judgment in the A. v. State of Israel case (No. 2) concerning the continued detention of a Palestinian from Gaza under the Internment of Unlawful Combatants Law (2002), as amended in 2008, Israel’s High Court of Justice stated:
5. As described above, the internment of the appellant was made pursuant to his being declared an unlawful combatant. As stated in section 2 of the Unlawful Combatants Law, an unlawful combatant is:
a person who took part in hostilities against the State of Israel, whether directly or indirectly, or who is a member of a force carrying out hostilities against the State of Israel, who does not satisfy the conditions granting a prisoner of war status under international humanitarian law, as set out in article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War.
Parenthetically, it should be explained that, as held in Crim. App. 6659/06, [ A v. State of Israel case, 11 June 2008] … (hereafter: Iyad), “unlawful combatants” have the status of “civilians” under international law, for which reason their internment is not to be deemed captivity.
6. As can be seen, the Law specifies two alternatives (which may, of course, overlap) as an initial condition for internment, which form the basis for declaring a person an unlawful combatant. One, the person himself took part in hostilities against the State of Israel, and two, the person is a member of the force carrying out hostilities. As section 3(b)(1) of the Unlawful Combatants Law states, from the moment that a particular person is an unlawful combatant, the chief of staff may, if he finds an additional condition is satisfied – that is, that his release will prejudice state security – order his internment. These determinations, regarding satisfaction of the two conditions, undergo initial judicial review shortly after the internment order is issued, and in the periodic reviews that examine the possibility of releasing the unlawful combatant.
8. Notwithstanding the above, I did not find that the first condition was satisfied in the appellant’s case, that is, that he is an “unlawful combatant” within the meaning of the term in section 2 of the Unlawful Combatants Law. As stated, this section specifies two possibilities for inclusion in this definition – “group” (being a member of a force carrying out hostilities) or “personal” (taking part in hostilities, directly or indirectly). Even though the respondent does not contend this explicitly, it appears from its contentions that the circumstances of the appellant combine the two possibilities. Whether one or the other, in light of the cautious interpretation that must be given to the definitions in this law, I do not find that the appellant comes within the boundaries of these definitions.
9. In examining the interpretation of the definitions that form the basis of the definition of a person as an “unlawful combatant,” it should be recalled that we are involved with a definition having extremely harsh consequences, both from the perspective of “pure” law and from the humanitarian perspective. For this reason, it was held that the provisions of sections 2 and 3 of the Law should be examined cautiously, requiring clear and convincing evidence as a condition for determining they are satisfied (see Iyad, paragraphs 21 and 22; Crim. App. 7446/08, Sa’id v. State of Israel (not yet reported, 7 November 2008), paragraphs 29 and 30; and see, also, Crim. App. 1226/06, Iyad v. State of Israel (not reported, 14 March 2006, paragraph 18)).
10. In our case, and in light of the position stated in the opinions prepared by the Israel Security Agency regarding the appellant, I did not find it could be said that the appellant is a member of a force carrying out hostilities against the State of Israel. As appears from these opinions, and from the information presented before me by representatives of the Israel Security Agency, the information against the appellant relates to his engaging in weapons smuggling. In the framework of the evidence presented before me, I did not find evidence related to any real organizational belonging of the appellant, or to his activity in the framework of one terrorist organization or another. Therefore, I did not find that the appellant comes within the “group” alternative.
11. In this regard, I cannot accept the holding of the District Court, whereby the family cell to which the appellant belongs can be deemed a hostile force, so as to satisfy the requirements of section 2 of the Unlawful Combatants Law.
… [I]t is not sufficient that the person be in the ranks of some entity that is hostile to the state and whose existence endangers its security, but it must be an entity that carries out, in an active and organized manner, hostile terrorist activity against the State of Israel. The paradigmatic force coming within this definition is, of course, a “terrorist organization,” and in particular an organization certified by the Minister of Defense, as stated in section 8 of the Law. Of course, this is not an exhaustive and binding definition, but the further the circumstances of a particular entity are from a terrorist organization, in the form of organizations specified in the said certificate, there is less inclination to see such a force as one that comes within the definition specified in section 2 of the Unlawful Combatants Law. Therefore, I do not find that the “family cell,” in and of itself, and without it being attached to some “substantial” organization, can be deemed a hostile force within the definition in the section. The situation would be different in the case in which, for example, an organization existed that was founded on a family cell, or is identified with some family cell, but it cannot be said that the family cell itself is a hostile force for the purpose of the section. …
12. In the “personal” alternative also, I did not find that the appellant comes within the definition of “unlawful combatant” under section 2 of the Law. This possibility involves, as stated, a person taking part in hostilities, directly or indirectly. In the appellant’s case, I did not find any evidence indicating that he took a real part in hostilities directed against Israel. As stated, the evidence against him related primarily, but not only, to his engaging in weapons smuggling. Indeed, it is possible to argue that this information – and additional, privileged information – indicates that the appellant took an indirect part in hostilities. Without providing detail, the appellant’s acts indeed contributed to the hostilities against the State of Israel, and that acts of this kind would occur in the future. However, in applying the cautious principles of interpretation that are required as stated in implementing the Unlawful Combatants Law, I did not find that, in this context, the contribution of the appellant to these acts can be deemed a contribution that constitutes taking part in the hostilities, as the Law requires. …
Despite the appellant’s connections to terrorist organizations and hostilities carried out against the State of Israel, whether through weapons smuggling or by other means, under the circumstances of the case, I did not find that these constitute taking a real part in hostilities, to the extent necessary to justify his internment under the Unlawful Combatants Law.
13. I also reached this conclusion following a fundamental constitutional examination of the appellant’s internment. As is the case with every administrative act, this act, too, must satisfy, inter alia, the principle of proportionality, for it not to deviate from the boundaries of the law authorizing it. In our case, the appellant’s internment under the Unlawful Combatants Law raises the question of whether there is a means that causes lesser harm and achieves the same objective. In this case, I find that, in his case, administrative detention under the Emergency Powers (Detentions) Law, 5739 – 1979 (hereafter: the Administrative Detention Law), is sufficient.
14. The Administrative Detention Law empowers the Minister of Defense to order the detention of a person for a period not to exceed six months, if he finds “a reasonable basis to assume that reasons of state security or public security” require his detention (section 2(a) of the law). This power of the Minister of Defense has been discussed in this court, also with respect to its relationship to the criminal law, and it was held that, although it is deemed an extreme means, which severely violates personal liberty, there are times that the conventional tools are insufficient to cope with the danger to society, and there is no option to using this means as well (see, for example, Adm. Det. App. 8788/03 , Federman v. Minister of Defense, P. D. 58 (1) 176 (23003); Adm. Det. App. 8607/04, Fatima v. State of Israel, P. D. 49 (3) 258 (2004)).
16. Therefore, it cannot be said that the extent of the appellant’s contribution to hostilities carried out by terrorist organizations justifies using the means of internment under the Unlawful Combatants Law, and it is sufficient to hold him in administrative detention under the Administrative Detention Law. As stated, the evidence presented before me clearly indicates he poses a danger to state security. However, prevention of this specific dangerousness comports more with the arrangements set out in the Administrative Detention Law – which despite their severe harm, are far less extreme than the harm of the arrangements specified in the Unlawful Combatants Law. 
Israel, Supreme Court of Israel, A. v. State of Israel case (No. 2), Judgment, 23 November 2008, §§ 5–6, 8–14 and 16.
[emphasis in original]
Israel
In 2009, in its judgment in the A. v. State of Israel case (No. 4) concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
6. This Court has already discussed the fact that the objective of the law [Internment of Unlawful Combatants Law (2002)] is to allow the detention of foreign persons who belong to a terrorist organization or take part in hostilities against the security of the state, in order to “… prevent return of a person, who endangers the security of the state by his activity or membership in a terrorist organization, to cycle of hostilities” [A. v. State of Israel case, 2008, § 6]. The objective is, therefore, a security objective that arises against the familiar reality of a difficult and continuing struggle against the terrorist organizations.
7. Issuance of a detention order pursuant to the law must fulfill three conditions: the first is a preliminary condition, that the detention be of a person who is not entitled to the status of a prisoner of war (section 1 of the law). The second condition is that said person fulfills the definition of an “unlawful combatant” pursuant to section 2 of the law, which determines:
‘unlawful combatant’ – a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, to whom the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War with respect to granting prisoner of war status in international humanitarian law, do not apply.
The two alternate types of “unlawful combatant” listed in this section require that a person not be declared an “unlawful combatant” if it has not been found that he personally presents danger. Thus, regarding the first type in the definition of unlawful combatant – the fact that the person takes part in hostilities against the State of Israel – it has already been held that “a distant, negligible and marginal contribution” is not sufficient, and that the State must prove that said person’s contribution to acts of hostility against the State indicate personal dangerousness. Regarding the second type – the fact that said person is a member of a force committing acts of hostility against the State of Israel – it has been held that any loose link to a terrorist organization is not sufficient, but it is not required that said person take direct or indirect part in the hostilities themselves, and his contribution to the organization can be manifest in additional ways that lead to his inclusion in the cycle of hostilities in the broad sense [A. v. State of Israel case, 2008, § 21]. The State must present clear and persuasive administrative evidence in order to prove its claim that the person whose arrest is being requested enters one of the two alternate definitions of an “unlawful combatant”. Noting the detention order’s impingement upon the right to liberty, the requirement regarding presenting clear and convincing administrative evidence was interpreted such that “importance should be attached to the quantity and quality of the evidence against the prisoner and the degree to which the relevant intelligence information against him is current;” [A. v. State of Israel case, 2008, § 22].
8. The third condition for declaring a person an unlawful combatant is that there is reasonable basis to assume that his release will compromise State Security (section 3(a) of the law). In order to prove this element, the State can use the presumptions in sections 7 & 8 of the law, both of which are rebuttable. Section 7 determines that for the purposes of the law, a person who is a member of a force committing hostilities against the State of Israel or who has taken part in hostilities of such a force, is seen as a person whose release will compromise State security until the hostilities of that force against the State of Israel have ceased. Section 8 determines that the determination of the Minister of Defense that a certain force is committing hostilities against the State of Israel or that the hostilities against the State of Israel have not yet ceased shall serve as proof in any legal proceedings, unless the opposite has been proven. Note that in [the A. v. State of Israel case, 2008] the arguments of unconstitutionality of these presumptions were not decided, as it arose from the State’s position that in practice, it tends to present proven factual basis regarding the personal dangerousness of every person regarding whom issuance of a detention order is requested, and that it has not yet relied upon these presumptions.
11. I am aware of the difficulty in a situation in which the law is employed against a person who has served his entire sentence. However, as clarified to me, the use of the law is most limited. In addition, this Court did not reject the possibility that there would be cases in which a person would be tried and sentenced in a criminal trial and serve his sentence, but that wouldn’t provide a sufficient response to the danger posed by him to the security of the State, and then a detention order pursuant to the law would be needed. … In my opinion, such weighty security considerations exist in this case, and the balance is attained via shortening of the period until the next judicial review, in which appellant’s case will be considered again, to the extent that a decision is made to renew the detention order against him. 
Israel, Supreme Court of Israel, A. v. State of Israel case (No 4), Judgment, 19 August 2009, §§ 6–8 and 11.
[emphasis in original]
Israel
In its judgment in the Yesh Din case in 2010, concerning the matter of Palestinian detainees from the West Bank who are incarcerated in detention facilities situated in the territory of the Israel, Israel’s High Court of Justice stated:
3. The legal framework which allows detainees from the region to be held in Israel is anchored in the Emergency Regulations (Judea and Samaria and the Gaza Strip – Criminal Jurisdiction and Legal Assistance), 5727 – 1967 (hereafter: the Regulations or the Emergency Regulations), which were enacted following the capture of the region by IDF [Israel Defence Forces] forces, already in 1967. … Section 6 of the Regulations states:
6. Carrying out of punishment; arrest
(a) Where a person has been tried and sentenced by a military court, then, in so far as his punishment has not been carried out in the region, it may be carried out in Israel in the manner in which a punishment imposed by a court is carried out in Israel.
(b) Where a warrant of arrest or detention order has been issued against any person in the region, in exercise of a power conferred by a proclamation or order of a commander, such warrant or order may be carried out in Israel in the manner in which a warrant of arrest or detention order is carried out in Israel.
4. The question of the legality of holding persons as aforesaid is not new with us. It was adjudicated in this court in HCJ 253/88, Sajdiya v. Minister of Defense, P. D. 42 (3) 301 (1988) (hereafter: Sajdiya), a petition that attacked the legality of holding residents of the region in incarceration facilities in Israel; in the framework of the petition, the court also adjudicated the conditions in which the detainees were held in those facilities. It should be mentioned that, in that petition, the court specifically dealt with detainees who were then being held in the incarceration facility in Ketziot. The judgment in Sajdiya discussed at length the question of the legality of the holding of such residents from the perspective of provisions of the [1949] Geneva Convention [IV], and the court construed the relevant provisions of the Convention, primarily article 49 of the Convention, which prohibits deportation and forced transfer from occupied territory to the territory of the occupying country. The justices in Sajdiya were divided with respect to the interpretation of article 49 of the Geneva Convention, but the decisive grounds for determining the legality of holding the residents as aforesaid was based on the provisions of section 6 of the Emergency Regulations, which, given its status as primary Israeli legislation, prevails over the provisions of international law.
6. It should first be said that we did not find sufficient reason to change the rule delineated in Sajdiya with respect to section 6 of the Regulations prevailing over provisions of the Convention. As for application of provisions of the Geneva Convention, from the time that the laws of occupation began to be applied on the region in 1967, the state has argued before the court that the Convention is treaty-based, and, in its view, judicial review of application of provisions of the Convention is made pursuant to the obligation to respect the humanitarian provisions of the Convention, which the state has taken upon itself as a matter of policy. Accordingly, the court examined the extensive case law with respect to the implementation of those provisions over the years. Now, the petitioners claim there has been a change of attitude, and it is accepted that the provisions of the Convention are part of customary law and therefore are binding. Regardless of the status of the Geneva Convention, we are prepared to accept the argument that it is necessary to examine the actions of the military commander in the region from the perspective of the Convention’s provisions, as the court has done over the years, and to respect its customary provisions as part of customary law (see, for example, HCJ 3278/02, HaMoked: Center for the Defence of the Individual v. Commander of IDF Forces in the West Bank, P. D. 57 (1) 385, 396–397 (2002) (hereafter: HaMoked); HCJ 5591/02, Yassin v. Commander of Ketziot Military Base, P. D. 57 (1) 403, 413 (2002 (hereafter: Yassin)). However, there is no dispute that, when an explicit statute in Israeli domestic law opposes rules of international law, even when customary law is involved, the Israeli law is dispositive (see Sajdiya, p. 815; Crim. App. 336/61, Eichmann v. The Attorney General, P. D. 16 2033, 2040–2041 (1962); and, for example, HCJ 256/01, Rabah v. Jerusalem Court for Local Matters, P.D. 56 (2) 930, 934 (2002)); HCJ 591/88, Taha v. Minister of Defense, P. D. 45 (2) 45, 52–53 (1991)). Therefore, and given that this reason is the main reason, as stated above, on which the decision hinged in Sajdiya, we did not consider the petitioners’ claims regarding the provisions of articles 76 and 49 of the Convention.
7. It should be said, in brief, that, based on the rulings of this court and the overall data before us, the interpretation given to the provisions of the Geneva Convention on the need to apply them to the region must be made in accordance with the circumstances and the special characteristics arising from the need to apply the laws of occupation in a manner that comports with the nature of the way in which the region is held, taking into account the long period of time that Israel has held the region, the geographic conditions, and the possibility of maintaining ties between Israel and the region. The purposeful interpretation that adapts the provisions of the Convention to the Israeli reality and to the conditions in the region requires, first and foremost, giving great weight to the rights of the protected population, which includes the rights of the detainees. This court has on many occasions dealt with the question of ensuring proper conditions for Palestinian detainees, whether they are detained in Israel or at the Ofer base, in accordance with the substantive criteria prescribed in the international conventions. …
9. … The petitioners’ argument, insofar as it is based on the specific conditions, unlike the provisions of the Convention, focuses on the detainees’ need, more than anything, for contact with their families; the petitioners contend that the closures and restrictions on movement from the region to Israel, which have been numerous in recent times due to security demands, prevent this vital contact inasmuch as the incarceration facilities are located inside Israel. …
10. Another argument raised by the petitioners involved the hearings on detention and extension of detention that are held by the military courts inside Israel, a practice that, they contend, violates article 66 of the Geneva Convention. This subject arose in this court in HCJ 6504/95, Wajiya v. State of Israel (hereafter: Wajiya), where the court held that the basis for the possibility of a military court adjudicating the matter of detention of residents of the region is found in section 6(b) of the Emergency Regulations. Although this section does not refer to the location of the court ordering the detention, it provides a substantive basis for the military court’s action. We did not deem it necessary to change the rule that was established in Wajiya, which this court has restated on other occasions (see, for example, HCJ 1622/96, Ahmad v. General Security Service, P. D. 50 (2) 749, 751 (1996)). The grounds for the holding are the same as those described above regarding the relationship between a provision of domestic law and a provision of international law.
11. … [I]n balancing the security interest in detaining a person, which the Convention also recognizes as necessary, with the need for transportation to the region, which is troublesome not only for the persons responsible for handling the transfer of the detainees but also for the detainees themselves, it appears that the existing solution, which comports with the arrangement prescribed in the Emergency Regulations and with the requisite substantive conditions for protecting the detainees’ rights, is the required solution, so long as the detainees are indeed held in Israel.
Conclusion
13. For the reasons described above, we did not find cause to re-examine the rules established in Sajdiya and Wajiya. We again emphasize that, regarding the conditions of detention and the substantive provisions of the Geneva Convention and of other international conventions regarding the holding of detainees, this court has clearly and unequivocally held that Israel must respect the provisions of international law, and that every detainee is be held in conditions that comport with his human dignity. …
14. Under the circumstances that have been created, it is necessary to pay heed to the practical significance of establishing new incarceration facilities, of the necessary magnitude, in the region following the withdrawal of IDF forces from the towns where facilities had been built. In the course of constructing the facilities in the region, the conditions in which the detainees are held might worsen, and the local residents in the areas in which the facilities would be built are also liable to be harmed. Application of provisions of the Geneva Convention must be done in accordance with a reality that the drafters of the Convention did not foresee. It is necessary to take into account also the geographic proximity of the region to Israel, and that holding the detainees in Israel does not automatically deny them family visits or legal assistance. It is necessary, therefore, to separate the obligation to implement the humanitarian provisions of the Convention with respect to the conditions in which the detainees are held from the claim as to the location in which the detainee is held, taking into account that the location of the detention was arranged years ago in Knesset legislation, the legality of which has been confirmed by decisions of this court, and considering that, given the conditions in which Israel holds the region and the current reality between Israel and the region, the holding of detainees in incarceration facilities in Israel does not violate the substantive provisions of international law. 
Israel, High Court of Justice, Yesh Din case, Judgment, 28 March 2010, §§ 3–4, 6–7, 9–11 and 13–14.
Israel
In its judgment in the Issawi case in 2010, a judicial review of the administrative detention of a Palestinian from Gaza held under the Internment of Unlawful Combatants Law (2002), Israel’s Jerusalem District Court held:
7. The Internment of Unlawful Combatants Law, 5762-2002, determines an administrative detention arrangement whose purpose is preventative. It is forward facing. The cause for detaining a person pursuant to this law is the personal dangerousness of the person whose detainment is requested. The objective of the detention is prevention of his return to the cycle of hostilities. This was clarified very well in the 11 June 2008 judgment of the Supreme Court, which dealt with many various aspects of that law (CrimA 6659/06 A. v. The State of Israel).
8. The respondent’s alleged dangerousness is based predominantly upon the information and the evidence that existed against him before he was arrested more than six years ago. Not a lot has changed since then. Regarding the respondent himself, the evidence upon which the court is asked to determine his dangerousness today is, primarily, the same evidence that stood at the basis of the indictment filed against him in the military court in Gaza. As noted, the respondent served his entire sentence in that case … Thus, there is a great extent of overlap between the criminal proceedings that were conducted against the respondent and the administrative proceeding conducted against him pursuant to the Internment of Unlawful Combatants Law, 5762-2002. That fact raises difficulty, which was discussed by the Supreme Court in [the A. v. The State of Israel case.
10. Thus, the time factor is a factor which should be considered when determining whether a detainment order issued pursuant to the law should be left standing. The influence of the time factor upon the question of the dangerousness of the detainee can be manifest in the following two things: first, if there is basis to assume that the period during which the person was detained is likely to affect his desire and willingness to return to the cycle of hostilities after his release; and second, if there is basis to assume that the length of the period that the person was far from routine terrorist activity and from his fellow members from whom he was distanced is likely to affect the chances that the detainee will be reabsorbed into that activity, which might have undergone changes in the meantime. To that should be added that it is required that there be a fit between the substance of the suspicions against a person and the length of the period of his detention.
11. As mentioned, the respondent has been behind bars for a long time. It is but obvious that the as time passes, the system of balances changes, and the weight of the side of the scale upon which lie the considerations in favor of his release becomes heavier. In the case before us, the respondent has been detained since 8 February 2004, that is, a period of more than six years and two months. During 11 months of this period he has been detained pursuant to the Internment of Unlawful Combatants Law, 5762-2002. … We are dealing with a system of considerations with reasoning for, and reasoning against, continued detention. After having placed the considerations across from each other, I have reached the conclusion that at the present time the balancing point has changed, such that it must lead to release of respondent. 
Israel, Jerusalem District Court, Issawi case, Judgment, 21 April 2010, §§ 7–8 and 10–11.
Malaysia
In its judgment in the Malek case in 2007, Malaysia’s High Court in Kuala Lumpur stated:
In dealing with art 5(3) of the Constitution, I am mindful of the fact that I am presently dealing with the fundamental liberty of the citizens. The preservation of the personal liberty of the individual is a sacred universal value of all civilized nations and is enshrined in the Universal Declaration of Human Rights and Fundamental Freedoms of 1948. Article 5(3) of the Federal Constitution guarantees every person in this country of his personal liberty and protection from arbitrary arrest particularly arbitrary arrest by the State. As I have said in Abdul Ghani Haroon, and I will say it again now, judges are protectors of the fundamental liberties of the citizens and that this is a sacred duty or trust which Judges must constantly uphold. 
Malaysia, High Court (Kuala Lumpur), Malek case, Judgment, 18 October 2007, § 18.
Nepal
In 2007, in the Bajracharya case, Nepal’s Supreme Court held:
There is no dispute … [concerning] the fact … that … the applicant [was detained] on 21 November 2003 by the United Security Forces and was transferred to Raj Dal Barrack and … was [subsequently] released on 13 April 2004 [based] on the guarantee of his wife, because this has been accepted by the defendants in their written responses. The act of holding [an] opponent in detention and … [subsequently] asking [him] to [present himself] periodically [to the Army Barrack because of] the charge of involvement in Maoist activities is seen to have clearly violated the personal liberty enshrined in the then Constitution of the Kingdom of Nepal, 1990, and the present Interim Constitution of Nepal, 2007. The prevailing laws do not empower [the] Army Barrack to [detain] anybody … and the defendants also are not able to show such legal provision. Therefore the act of the defendant, the Raj Dal Barrack, [namely] asking [the] applicant to … [present himself] every month, is not legally justifiable. The responsible agenc[ies] of the State which were supposed to … [be] conscious [of] the rights of the individuals are seen rather [as] involved in the act of … unreasonabl[y] restricti[ng] … the fundamental rights of the individuals, therefore, the act of … [detaining the applicant and requiring him to periodically present himself] … by [the] Raj Dal Barrack is hereby quashed by the order of certiorari.
… As there is a possibility of arrest for not … [presenting himself at] the Barrack on the called date, [the order of Mandamus] is also issued … in the name of the opponents not to arrest or [order the] arrest [of] the applicant along with other general citizens. 
Nepal, Supreme Court, Division Bench, Bajracharya case, Order, 31 August 2007.
Netherlands
With regard to unlawful confinement, several post-Second World War trials found army officers and, occasionally, industrialists guilty of war crimes because of their participation in the wrongful internment of civilians, their illegal detention and internment under inhumane conditions. Examples are the Dutch Motomura case and the Notomi Sueo case before the Temporary Court-Martial at Makassar in 1947, the Rauter case before the Special Court at The Hague and Special Court of Cassation in 1948 and 1949, and the Zuhlke case before the Special Court in Amsterdam and the Special Court of Cassation in 1948. 
Netherlands, Temporary Court-Martial at Makassar, Motomura case, Judgment, 18 July 1947; Temporary Court Martial at Makassar, Notomi Sueo case, Judgment, 4 January 1947; Special Court (War Criminals) at The Hague, Rauter case, Judgment, 4 May 1948, and Special Court of Cassation, Rauter case, Judgment, 12 January 1949; Special Court in Amsterdam Zühlke case Judgment, 3 August 1948, and Special Court of Cassation, Zühlke case, Judgment, 6 December 1948.
Norway
In its judgment in the Repak case in 2008, concerning crimes committed against civilian non-combatant Serbs in an internment camp in Bosnia and Herzegovina in 1992, resulting from which the defendant was convicted on 11 counts of the war crime of unlawfully confining a protected person, the District Court of Oslo held:
80. … [To meet the war crime conditions of section 103 of the 2005 Penal Code] the act must have been committed in connection with an “armed conflict”. This is undisputed. The Court makes reference to the description of the conflict. Secondly, it is required that the deprivation of liberty must concern a “protected person”. This will be the case with civilian non-combatant persons and will be assessed concretely. Thirdly, the confinement must be “contrary to international law”. In the opinion of the Court, this must apply to international law as it was in 1992 if one is to avoid another problem arising in relation to retroactive effect. Written international law at the time consisted mainly of the 1949 Geneva Convention[s] and some Additional Protocols. The Geneva Convention [IV] is a convention regarding the protection of civilian persons in time of war. The Convention stipulates different requirements, depending on whether there is an international conflict or an armed conflict not of an international character. The Court finds that the requirements for both alternatives are fulfilled in the case at hand. The Court finds that at the time in question an international conflict existed. … Articles 41 to 43 of the Geneva Convention stipulate stringent conditions for the internment of civilians. It is a condition that it must be absolutely necessary for security reasons, and there are special requirements for procedures. With the reservation that a specific assessment linked to each count of the indictment is to be made, the Court finds that the internment of civilians in the Dretelj camp took place in violation of the Geneva Convention [IV], cf., inter alia, Articles 30, 31, 32 and 43 of the Convention. The defendant was aware that this was contrary to international law.
.…
246. AA was a civilian non-combatant and was held in Dretelj with a view to exchange. The defendant was aware that this was unlawful. Heading an interrogation of her with the use of torture, where the interrogation ends by her being taken back to the cell, amounts to complicity in continued deprivation of liberty. The defendant acted with intent. Taking into consideration the situation, there was nothing to indicate that her internment would be very brief. Thus, the defendant could have realised the risk that the internment in this case would last more than one month. …
261. As far as the defendant Repak is concerned, the Court considers … [that the] execution of his tasks resulted in innocent persons being taken to Dretelj were they were subjected to long-term internment and, in a number of cases, to violence, other kinds of abuse and degrading treatment. 
Norway, District Court of Oslo, Repak case, Judgment, 2 December 2008, §§ 80, 246 and 261.
In its judgment in the Repak case in 2010, Norway’s Court of Appeal stated:
Not all violations of international humanitarian law are to be regarded as war crimes. The starting point is that the violation must involve a serious breach of a rule of international law that protects substantial values, and that causes individual criminal responsibility according to either international customary law or treaty based law …
According to the Geneva Convention [IV] of 12 August 1949 on the protection of Civilian Persons in Times of War, unlawful confinement of protected persons in relation to armed conflict is considered a serious breach of international law, see art. 147, art. 146 and 79 with further references, including art. 42 and 43.
Unlawful confinement of protected persons is considered a war crime according to the Rome Statute of the International Criminal Court of 17 July 1998. 
Norway, Borgarting Lagmannsrett (Court of Appeal), Repak case, Judgment, 12 April 2010, p. 15, section 3.
The Lagmannsretten (Court of Appeal) adds for the record that even if the decisions of arrest and confinement had been formally correct, it would still not make the deprivation of liberty lawful. It would not in any case be any legal grounds for imprisoning civilian non-combatants on the grounds of their ethnicity. 
Norway, Borgarting Lagmannsrett (Court of Appeal), Repak case, Judgment, 12 April 2010, p. 27, section 4.
In its judgment in the Repak case in 2011, Norway’s Supreme Court confirmed the verdict of the court of first instance, increased the sentence from five to eight years’ imprisonment owing to the extremely serious nature of the crime, and stated that the crime of “deprivation of liberty” was a “serious violation of international humanitarian law”. 
Norway, Supreme Court of Norway, Repak case, Judgment, 12 March 2011, § 107.
Peru
In 2003, in the Marcelino Tineo Silva and Others case, Peru’s Constitutional Court stated:
Justifying … pre-trial detention solely with the reproachable nature and negative social consequences of the crime of terrorism would violate the principle of presumption of innocence because, as stated by the Inter-American Commission of Human Rights, justifying a person’s detention based on the degree of danger or nature of the crime “could be understood as being subjected to punishment in advance before the competent judge has had a chance to decide whether or not the person is guilty. This situation may lead to an arbitrary and twisted application of preventive detention for purposes different from those considered in the law itself.” (Report No. 02/97, para. 51).
Pre-trial detention, which restricts a person’s freedom of movement even though he or she is presumed innocent during the process, may only be imposed if for a certain reason it is considered indispensable. Consequently, its imposition can never be rendered compulsory by law. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 122.
The Court further stated:
[T]he right to not be held incommunicado is not absolute, but subject to limitations because, as stated by Article 2(24)(g) of the Constitution, such a detention condition can be imposed if it is indispensable to solve a crime and if it is imposed in a manner and for such time as established by law. In such cases, “the authority shall be obliged to state without delay and in writing where the person is being held in detention”.
Consequently, there is no absolute right to not be held incommunicado. Such a detention condition can be imposed exceptionally in cases where it is indispensable to clarify a serious offence. 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 172.
The Court also stated that “sentencing a person to a sentence involving incommunicado detention for a year is an unreasonable and disproportionate measure, constituting cruel and inhuman treatment.” 
Peru, Constitutional Court, Marcelino Tineo Silva and Others case, Case No. 010-2002-AI/TC, Judgment of 3 January 2003, § 223.
Peru
In 2004, in the Gabriel Orlando Vera Navarrete case, Peru’s Constitutional Court stated that “the determination of a reasonable duration of detention must take into account the state’s obligation to investigate and punish the reported acts ... in order to avoid impunity for serious crimes and human rights violations.” 
Peru, Constitutional Court, Gabriel Orlando Vera Navarrete case, Case No. 2798-04-HC/TC, Judgment of 9 December 2004, § 29.
Philippines
In its judgment in the Cayao case in 1993, the Philippine Supreme Court stated:
While it is true that complainant was not put behind bars as respondent had intended, however, complainant was not allowed to leave the premises of the jail house. The idea of confinement is not synonymous only with incarceration inside a jail cell. It is enough to qualify as confinement that a man be restrained, either morally or physically, of his personal liberty … Under the circumstances, respondent judge was in fact guilty of arbitrary detention when he, as a public officer, ordered the arrest and detention of complainant without legal grounds. 
Philippines, Supreme Court, Cayao case, Judgment, 15 September 1993.
Philippines
In the Flores case before the Philippine Supreme Court in 2001, in which the appellants (three members of a Citizen Armed Force Geographical Unit (CAFGU)) appealed the decision of a lower court that had convicted them of the crime of kidnapping and serious illegal detention, the court reversed and set aside the lower court’s decision and ordered their immediate release from confinement. In doing so, the court noted:
Arbitrary detention is committed by any public officer or employee who, without legal grounds, detains a person …
As far back as the case of U.S. v. Cabanag, it was held that in the crime of illegal or arbitrary detention, it is essential that there is actual confinement or restriction of the person of the offended party. The deprivation of liberty must be proved, just as the intent of the accused to deprive the victim of his liberty must also be established by indubitable proof. In the more recent case of People v. Fajardo, this Court reiterated the ruling in U.S. v. Cabanag, i.e., there must be uncontroverted proof of both intent to deprive the victim of his liberty, as well as actual confinement or restriction.
Detention is defined as the actual confinement of a person in an enclosure, or in any manner detaining and depriving him of his liberty. 
Philippines, Supreme Court, Flores case, Judgment, 31 May 2001.
Philippines
In the Astorga case before the Philippine Supreme Court in 2003, in which the petitioner sought the reversal of a lower court’s decision which had found him guilty of arbitrary detention (as Municipal Mayor of Daram, a public office, he had unlawfully detained a five-member government team investigating illegal logging operations), the court denied the petition. In its judgment, the Supreme Court noted:
Arbitrary Detention is committed by any public officer or employee who, without legal grounds, detains a person. The elements of the crime are:
1. That the offender is a public officer or employee.
2. That he detains a person.
3. That the detention is without legal grounds.
That petitioner, at the time he committed the acts assailed herein, was then Mayor of Daram, Samar is not disputed. Hence, the first element of Arbitrary Detention, that the offender is a public officer or employee, is undeniably present.
Also, the records are bereft of any allegation on the part of petitioner that his acts were spurred by some legal purpose. On the contrary, he admitted that his acts were motivated by his “instinct for self-preservation” and the feeling that he was being “singled out.” The detention was thus without legal grounds, thereby satisfying the third element enumerated above.
What remains is the determination of whether or not the team was actually detained.
The prevailing jurisprudence on kidnapping and illegal detention is that the curtailment of the victim’s liberty need not involve any physical restraint upon the victim’s person. If the acts and actuations of the accused can produce such fear in the mind of the victim sufficient to paralyze the latter, to the extent that the victim is compelled to limit his own actions and movements in accordance with the wishes of the accused, then the victim is, for all intents and purposes, detained against his will.
In the case at bar, the restraint resulting from fear is evident. In spite of their pleas, the witnesses and the complainants were not allowed by petitioner to go home. This refusal was quickly followed by the call for and arrival of almost a dozen “reinforcements,” all armed with military-issue rifles, who proceeded to encircle the team, weapons pointed at the complainants and the witnesses. Given such circumstances, we give credence to SPO1 [Senior Police Officer I] Capoquian’s statement that it was not “safe” to refuse Mayor Astorga’s orders. It was not just the presence of the armed men, but also the evident effect these gunmen had on the actions of the team which proves that fear was indeed instilled in the minds of the team members, to the extent that they felt compelled to stay in Brgy. Lucob-Lucob. The intent to prevent the departure of the complainants and witnesses against their will is thus clear. 
Philippines, Supreme Court, Astorga case, Judgment, 1 October 2003.
[emphasis in original]
Sri Lanka
In its judgment in the Kumaranatunga case in 1983, the Supreme Court of Sri Lanka stated:
[F]reedom from arbitrary arrest and detention guaranteed by Articles 13(1) and (2) of the Constitution is subject to such restrictions as may be prescribed by law in the interests, inter alia, of national security and public order. Law in this context is defined as including “regulations made under the law for the time being relating to public security”. It is well recognised that individual freedom has in times of public danger to be restricted when the community itself is in jeopardy, when the foundations of organised government are threatened and its existence as a constitutional state is imperilled. Ours is a principled commitment to personal liberties. In the exercise of its regulatory functions in times of national crisis, the Government is vested with power to impose [as] much restraints as are necessary in the interests of national security and the maintenance of public order. Freedom from arbitrary arrest and detention is made subject to the Emergency Regulations when a state of public emergency has been duly proclaimed. These Regulations overshadow the fundamental rights guaranteed by Articles 13(1) of the Constitution. 
Sri Lanka, Supreme Court, Kumaranatunga case, Judgment, 3 February 1983, pp. 80–81.
Sri Lanka
In its judgment in the Channa Pieris case in 1994, the Supreme Court of Sri Lanka stated:
Article 15(7) of the Constitution provides that the exercise and operation of certain fundamental rights declared and recognized by the Constitution, including those referred to in Article 13(1) and 13(2), shall be subject to such restrictions as may be prescribed by law in the interests, among other specified things, of national security and public order; and “law”, for the purpose of paragraph 7 of Article 15, is said to include regulations made under the law for the time being relating to public security.
The law relating to public security in force at the time relevant to the matters before us was the Public Security Ordinance (Cap. 40) as amended by Act No. 8 of 1959, Law No. 6 of 1978 and Act No. 28 of 1988 under which various Regulations have been made from time to time.
It is unhelpful to simply say, as the respondents do, that the petitioners were arrested under “the Emergency Regulations” for the simple reason that a bewildering mass of emergency regulations made under the Public Security Ordinance covering a wide range of matters, including, for instance, the Adoption of Children (606/6 of 18.4.90 and 730/8 of 1.9.92), the possession and control of Ceylon Cold Stores (604/10 of 6.4.90, 612/12 of 6.2.90, 640/18 of 14.12.90, 660/5 of 30.4.91, 664/8 of 31.5.91, 669/9 of 2.7.91), Edible Salt (635/7 of 7.11.90), Private Omnibuses (653/22 of 15.3.91, 692/8 of 10.12.91), School Development Boards and Provincial Boards of Education (701/12 of 12.2.92 the references are to Gazette numbers and dates of publication), have nothing to do with the arrests and detentions in question. Moreover, significant changes of the Regulations take place from time to time. When a petitioner states in an application under Article 126 of the Constitution that his freedom to be at liberty, unless he is arrested according to procedure established by law, has been denied, it is incumbent on the person making the arrest to precisely indicate the procedure under which the arrest was made. Additionally, for reasons I shall explain, it is desirable that certified copies of the relevant regulations should be filed by the respondents. 
Sri Lanka, Supreme Court, Channa Pieris case, Judgment, 17 June 1994, pp. 28–29.
Sri Lanka
In its judgment in the Vinayagamoorthy case in 1996, the Supreme Court of Sri Lanka stated:
Regulation 18(1) [of the Emergency (Miscellaneous Provisions and Powers) Regulations of 17 June 1993] states that “Any… member of the armed forces may… arrest without warrant, any person who is committing or whom he has reasonable grounds of suspecting to be concerned in, or to be committing or to have committed, an offence under any emergency regulation … Provided however that any person arrested or detained in any administrative district outside the Northern and Eastern Provinces by a member of the armed forces shall forthwith, and in any event before the end of the period of twenty four hours from such arrest or detention be handed over to the custody of the officer in charge of the nearest police station.”
The new regulations of June 1993 introduced several safeguards to ensure the security of persons who are arrested and detained under the Emergency Regulations. In order to prevent or minimize “disappearances” and abuses, it is of paramount importance that the requirements laid down by the regulations should be strictly observed. They were not intended for merely cosmetic purposes, but for the sake of fulfilling the basic obligation of the State to ensure the personal security and liberty of all persons.
Regulation 18(7) provides that when an arrest is made under Regulation 18(1) it shall be the duty of the arresting officer, where the arresting officer is a member of the armed forces, to report to the Commanding Officer of the area within which the arrest is made, within twenty four hours of such arrest. It shall be the duty of such Commanding Officer to “forthwith” notify the Human Rights Task Force of such arrest, setting out all the information relating to such offence in the form prescribed for such purpose by the Secretary.
Regulation 18(8) provides that where any person is taken into custody under the provisions of Regulation 18, it shall be the duty of the arresting officer to issue to the spouse, father, mother or any other close relative, as the case may be, a document in such Form as specified by the Secretary, acknowledging the fact of the arrest.
Regulation 19(4) casts two imperative duties on the Secretary of the Ministry of Defence, namely, (1) to cause to be published in the Gazette a list of all places authorized by him as places of detention for the purposes of Regulations 17 and 19; and (2) to notify the existence and the address of such places of detention to the Magistrate within whose jurisdiction such places of detention are located.
Regulation 19(5) requires the officer in charge of any place authorized by the Secretary as a place authorized for detention for purposes of Regulations 17 or 19 to furnish once every fourteen days to the Magistrate within whose local limits of jurisdiction such place of detention is located a list containing the names of all persons detained at such place. The Magistrate shall cause a list to be displayed on the notice board of the Court.
Regulation 19(6) requires the Magistrate within whose jurisdiction any such authorized place of detention is situated, to visit such place of detention at least once in every month and it shall be the duty of the officer in charge of that place to secure that every person detained therein, otherwise than by an order of a Magistrate, is produced before such visiting Magistrate.
Mr. Vinayagamoorthy in his affidavit of the 4th of December 1994 specifically states that the respondents failed to comply with the procedures established by law by (a) not handing over Wimalenthiran to the Kotahena Police immediately after his arrest; (b) failing to notify the Human Rights Task Force; and (c) failing to inform the relatives of the person arrested. I find myself in agreement with Mr. Vinayagamoorthy. Indeed, I go further in holding that there is no evidence that the requirements of Regulations 18(7), 18(8), and 19(4), 19(5), 19(6) were complied with in this case. 
Sri Lanka, Supreme Court, Vinayagamoorthy case, Judgment, 20 December 1996, pp. 128 and 130–131.
Sri Lanka
In 2010, in the Akilan case, Sri Lanka’s High Court of Vavuniya stated:
As per the provision of the Public security Act a surrendering person should be discharged at the end of the period of rehabilitation or after the extended period of rehabilitation.
Mr. H.N.G. Fernando the Chief Justice had made an order on 30.12.1971 in a Habeas corpus application … Janak llidaramani, Petitioner and A.R. Ratnavalu in which case the permanent secretary of the Ministry of Defense was [one of the respondents] … The judgment refers to preventive detention and states as follows …
Preventive detention is a serious invasion of personal liberty and such meager safeguards as the constitution has provided against the improper exercise of the power must be jealously watched and enforced by the Court.
[At] the same time it is also the policy of the Courts to [give] priority to the security of the State when an order is made to protect the “freedom” of an individual person. [The Court held in the same habeas corpus application:] “[C]onsiderations of liberty have necessarily to be outweighed by the interests of the security of the State.”
“A merely subjective or speculative fear is not enough to justify detention or to keep in custody the person who surrenders for an indefinite period.” 
Sri Lanka, High Court of Vavuniya, Akilan case, Order of 17 June 2010.
Sri Lanka
In 2010, in its judgment in the Sivalingam case, the Supreme Court of Sri Lanka stated:
Under the circumstances that prevailed in 2006, possession of a travel pass issued by the LTTE [Liberation Tigers of Tamil Eelam] may plausibly give rise to the conclusion that the Petitioner maintained linkages with the LTTE. This fact combined with information received from the Karandeniya Police linking the Petitioner to the stash of explosives, arms and ammunition recovered from the lorry recovered on 03.08.2006 has reasonably triggered his arrest and inquiry into possible terrorist activities committed or planned by the Petitioner. In light of the circumstance of the Petitioner’s arrest on 04.08.2006 I hold that there has been no violation of the Petitioner’s rights under Article 12(1) of the Constitution by the arrest and detention of the Petitioner. 
Sri Lanka, Supreme Court, Sivalingam case, Judgment, 10 November 2010, p. 8.
The Court also stated:
Following the Petitioner’s arrest by the Vavuniya Police on 04.08.2006 the Petitioner was produced before a Magistrate on 31.08.2006. The Petitioner was arrested and detained under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005 and under a Detention Order dated 04.08.2006 under which the Petitioner could be detained for a period of Ninety days from the date of the Order. Between 04.08.2006 and 30.06.2007, the Petitioner was served with a total of 6 Detention Orders … by which his detention was extended validly under the Emergency Regulations. It appears that on the face of the serious nature of the offences against the Petitioner that the detention had been regularized with a Detention Order which had been signed by the then Additional Secretary of Defence at the Ministry of Defence, Public Security Law and Order and are valid in law. The Petitioner was so kept in detention as per the said Detention Orders up to 22nd July 2007, on which day he was remanded to fiscal custody.
Regulation 19(1) of the Emergency Regulations reads as follows;
19(1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person:
- from acting in any manner prejudicial to the security or to the maintenance of public order, or to the maintenance of essential services; or
- from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of Regulation 40 or Regulation 25 of these Regulations, where it is necessary so to do, the Secretary may Order that such person be taken into custody and detained in custody:
Provided however that no person shall be detained upon an Order under this paragraph for a period exceeding one year.
Regulation 21(2) of the Emergency Regulations reads as follows;
21(2) Any person detained in pursuance of provisions of Regulation 19 in a place authorized by the Inspector General of Police may be so detained for a period not exceeding ninety days reckoned from the date of his arrest under that Regulation, and shall at the end of that period be released by the officer in charge of that place unless such person has been produced by such officer before the expiry of that period before a court of competent jurisdiction; and where such person is so detained in a prison established under the Prisons Ordinance …
Regulation 21(3) stipulates that:
Where a person who has been arrested and detained in pursuance of the provisions of Regulation 19 is produced by the officer referred to in paragraph (2) before a court of competent jurisdiction, such court shall Order that the person be detained in the custody of the Fiscal in a prison established under the Prisons Ordinance.
This was the basis on which it appears that the Petitioner was taken into custody under the Emergency (Miscellaneous Provisions and Powers) Regulations No. 1 of 2005, and detained for a period of up to one year. At the end of the said one year and prior to the lapse of one year on 22nd July, 2007 he was remanded into fiscal custody.
However, this procedure was challenged in Supreme Court Fundamental Rights Application No.173/08 (SCFR 173/08). This was due to the fact that the provisions of Regulation 21(3) contradicted with the provisions of Regulation 19(1) when read together with Regulation 21(2).
Thus Their Lordships, by Order dated 29th July 2008, held as follows:
“… in terms of Regulation 19(1) and 21 of the Emergency Regulations No 1 of 2005, the detainee should have been transferred to fiscal custody after 90 days from the date of arrest.”
A clear ambiguity in the law [existed] up to this point of time. This ambiguity was rectified by the Supreme Court, in SC Application 173/08, only on 29th July 2008. This does not mean that all detentions made under the Emergency Regulations No 1 of 2005 prior to this Order were bad in law and therefore illegal. If that was to be the case it will clearly lead to an absurdity. 
Sri Lanka, Supreme Court, Sivalingam case, Judgment, 10 November 2010, pp. 13–15.
United Kingdom of Great Britain and Northern Ireland
In 2004, in A and others v. Secretary of State for the Home Department, the UK House of Lords were called upon to decide whether, first, the November 2001 UK “Human Rights Act 1998 (Designated Derogation) Order 2001”, made in view of the United Kingdom’s derogation in December 2001 from Article 5(1) of the 1950 European Convention on Human Rights under Article 15 of the Convention, was compatible with Article 5 of the Convention, and whether, second, Section 23, contained in Part IV of the December 2001 UK Anti-terrorism, Crime and Security Act (ATCSA), was compatible with Article 5 of the Convention. The appeals were brought by persons who had been certified under Section 21 and detained under Section 23 of the ATCSA.
In a July 2002 decision, the Special Immigration Appeals Commission (SIAC) had allowed the appellants’ appeals. In October 2002, the England and Wales Court of Appeal had allowed the Home Secretary’s appeal against the SIAC’s decision (A v. Secretary of State for the Home Department, [2002] EWCA Civ 1502, Judgment of 25 October 2002).
The House of Lords, by an eight to one decision, Lord Walker dissenting, allowed the appellants’ appeals: the majority, with Lord Hoffmann dissenting on this point, accepted the Government’s assessment that the threshold condition for a permissible derogation under Article 15 of the 1950 European Convention on Human Rights, a “public emergency threatening the life of the nation”, had been reached. They further held, however, that the measures taken in derogation had been disproportionate, and that Section 23, providing for the detention only of non-UK nationals as suspected terrorists, was discriminatory.
They therefore issued a quashing order in respect of the “Human Rights Act 1998 (Designated Derogation) Order 2001” as well as a declaration under the 1998 UK Human Rights Act that Section 23 of the ATCSA was incompatible with Articles 5 and 14 of the 1950 European Convention on Human Rights.
In 2005, Part IV of the ATCSA was replaced by the 2005 Prevention of Terrorism Act.
Lord Bingham gave the leading opinion in the case:
1. The nine appellants before the House challenge a decision of the Court of Appeal (Lord Woolf CJ, Brooke and Chadwick LJJ) made on 25 October 2002 ([2002] EWCA Civ 1502, [2004] QB 335). The Court of Appeal allowed the Home Secretary’s appeal against the decision of the Special Immigration Appeals Commission (Collins J, Kennedy LJ and Mr Ockelton) dated 30 July 2002 and dismissed the appellants’ cross-appeals against that decision: [2002] HRLR 1274.
2. Eight of the appellants were certified by the Home Secretary under section 21 of the Anti-terrorism, Crime and Security Act 2001 on 17 or 18 December 2001 and were detained under section 23 of that Act on 19 December 2001. The ninth was certified on 5 February 2002 and detained on 8 February 2002. Two of the eight December detainees exercised their right to leave the United Kingdom: one went to Morocco on 22 December 2001, the other (a French as well as an Algerian citizen) went to France on 13 March 2002. One of the December detainees was transferred to Broadmoor Hospital on grounds of mental illness in July 2002. Another was released on bail, on strict conditions, in April 2004. The Home Secretary revoked his certification of another in September 2004, and he has been released without conditions.
3. The appellants share certain common characteristics which are central to their appeals. All are foreign (non-UK) nationals. None has been the subject of any criminal charge. In none of their cases is a criminal trial in prospect. All challenge the lawfulness of their detention. More specifically, they all contend that such detention was inconsistent with obligations binding on the United Kingdom under the European Convention on Human Rights, given domestic effect by the Human Rights Act 1998; that the United Kingdom was not legally entitled to derogate from those obligations; that, if it was, its derogation was nonetheless inconsistent with the European Convention and so ineffectual to justify the detention; and that the statutory provisions under which they have been detained are incompatible with the Convention. The duty of the House, and the only duty of the House in its judicial capacity, is to decide whether the appellants’ legal challenge is soundly based.
The background
5. In July 2000 Parliament enacted the Terrorism Act 2000 … Relevantly for present purposes, that Act defined “terrorism” in section 1 …
7. Her Majesty’s Government reacted to the events of 11 September [2001] in two ways directly relevant to these appeals. First, it introduced (and Parliament, subject to amendment, very swiftly enacted) what became Part 4 of the Anti-terrorism, Crime and Security Act 2001. Secondly, it made the Human Rights Act 1998 (Designated Derogation) Order 2001 (SI 2001/3644) (“the Derogation Order”). Before summarising the effect of these measures it is important to understand their underlying legal rationale.
8. First, it was provided by para 2(2) of Schedule 3 to the Immigration Act 1971 that the Secretary of State might detain a non-British national pending the making of a deportation order against him. Para 2(3) of the same schedule authorised the Secretary of State to detain a person against whom a deportation order had been made “pending his removal or departure from the United Kingdom”. In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 it was held, in a decision which has never been questioned (and which was followed by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97), that such detention was permissible only for such time as was reasonably necessary for the process of deportation to be carried out. Thus there was no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wished to remove. This ruling was wholly consistent with the obligations undertaken by the United Kingdom in the European Convention on Human Rights, the core articles of which were given domestic effect by the Human Rights Act 1998. Among these articles is article 5(1) which guarantees the fundamental human right of personal freedom: “Everyone has the right to liberty and security of person”. This must be read in the context of article 1, by which contracting states undertake to secure the Convention rights and freedoms to “everyone within their jurisdiction”. But the right of personal freedom, fundamental though it is, cannot be absolute and article 5(1) of the Convention goes on to prescribe certain exceptions. One exception is crucial to these appeals:
“(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(f) the lawful arrest or detention of … a person against whom action is being taken with a view to deportation …”
Thus there is, again, no warrant for the long-term or indefinite detention of a non-UK national whom the Home Secretary wishes to remove. Such a person may be detained only during the process of deportation. Otherwise, the Convention is breached and the Convention rights of the detainee are violated.
9. Secondly, reference must be made to the important decision of the European Court of Human Rights in Chahal v United Kingdom (1996) 23 EHRR 413. Mr Chahal was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of the day decided that he should be deported from this country because his continued presence here was not conducive to the public good for reasons of a political nature, namely the international fight against terrorism. He resisted deportation on the ground (among others) that, if returned to India, he faced a real risk of death, or of torture in custody contrary to article 3 of the European Convention which provides that “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. Before the European Court the United Kingdom contended that the effect of article 3 should be qualified in a case where a state sought to deport a non-national on grounds of national security. This was an argument which the Court, affirming a unanimous decision of the Commission, rejected … The Court went on to consider whether Mr Chahal’s detention, which had lasted for a number of years, had exceeded the period permissible under article 5(1)(f). On this question the Court, differing from the unanimous decision of the Commission, held that it had not. But it reasserted (para 113) that “any deprivation of liberty under Article 5(1)(f) will be justified only for as long as deportation proceedings are in progress”. In a case like Mr Chahal’s, where deportation proceedings are precluded by article 3, article 5(1)(f) would not sanction detention because the non-national would not be “a person against whom action is being taken with a view to deportation”. A person who commits a serious crime under the criminal law of this country may of course, whether a national or a non-national, be charged, tried and, if convicted, imprisoned. But a non-national who faces the prospect of torture or inhuman treatment if returned to his own country, and who cannot be deported to any third country and is not charged with any crime, may not under article 5(1)(f) of the Convention and Schedule 3 to the Immigration Act 1971 be detained here even if judged to be a threat to national security.
10. The European Convention gives member states a limited right to derogate from some articles of the Convention (including article 5, although not article 3). The governing provision is article 15 … Article 15 of the Convention is not one of the articles expressly incorporated by the 1998 Act, but section 14 of that Act makes provision for prospective derogations by the United Kingdom to be designated for the purposes of the Act in an order made by the Secretary of State. It was in exercise of his power under that section that the Home Secretary, on 11 November 2001, made the Derogation Order, which came into force two days later, although relating to what was at that stage a proposed derogation.
The Derogation Order
11. The derogation related to article 5(1), in reality article 5(1)(f), of the Convention. The proposed notification by the United Kingdom was set out in a schedule to the Order. The first section of this, entitled “Public emergency in the United Kingdom”, referred to the attacks of 11 September and to United Nations Security Council resolutions recognising those attacks as a threat to international peace and security and requiring all states to take measures to prevent the commission of terrorist attacks, “including by denying safe haven to those who finance, plan, support or commit terrorist attacks”. It was stated in the Schedule:
“There exists a terrorist threat to the United Kingdom from persons suspected of involvement in international terrorism. In particular, there are foreign nationals present in the United Kingdom who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism, of being members of organisations or groups which are so concerned or of having links with members of such organisations or groups, and who are a threat to the national security of the United Kingdom.”
The next section summarised the effect of what was to become the 2001 Act. A brief account was then given of the power to detain under the Immigration Act 1971 and reference was made to the decision in Hardial Singh. In a section entitled “Article 5(1)(f) of the Convention” the effect of the Court’s decision in Chahal was summarised. In the next section it was recognised that the extended power in the new legislation to detain a person against whom no action was being taken with a view to deportation might be inconsistent with article 5(1)(f). Hence the need for derogation. Formal notice of derogation was given to the Secretary General on 18 December 2001. Corresponding steps were taken to derogate from article 9 of the International Covenant on Civil and Political Rights 1966, which is similar in effect to article 5, although not (like article 5) incorporated into domestic law.
The 2001 Act
12. The 2001 Act is a long and comprehensive statute. Only Part 4 (“Immigration and Asylum”) has featured in argument in these appeals, because only Part 4 contains the power to detain indefinitely on reasonable suspicion without charge or trial of which the appellants complain, and only Part 4 is the subject of the United Kingdom derogation. Section 21 provides for certification of a person by the Secretary of State:
“21 Suspected international terrorist: certification
(1) The Secretary of State may issue a certificate under this section in respect of a person if the Secretary of State reasonably –
(a) believes that the person’s presence in the United Kingdom is a risk to national security, and
(b) suspects that the person is a terrorist.
(2) In subsection (1)(b) ‘terrorist’ means a person who –
(a) is or has been concerned in the commission, preparation or instigation of acts of international terrorism,
(b) is a member of or belongs to an international terrorist group, or
(c) has links with an international terrorist group.
(3) A group is an international terrorist group for the purposes of subjection (2)(b) and (c) if –
(a) it is subject to the control or influence of persons outside the United Kingdom, and
(b) the Secretary of State suspects that it is concerned in the commission, preparation or instigation of acts of international terrorism.
(4) For the purposes of subsection (2)(c) a person has links with an international terrorist group only if he supports or assists it.
(5) In this Part – ‘terrorism’ has the meaning given by section 1 of the Terrorism Act 2000 [see para 5 above], and ‘suspected international terrorist’ means a person certified under subsection (1).
13. Section 22(1) of the Act provides:
“22 Deportation, removal &c
(1) An action of a kind specified in subsection (2) may be taken in respect of a suspected international terrorist despite the fact that (whether temporarily or indefinitely) the action cannot result in his removal from the United Kingdom because of –
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.”
The actions specified in subsection (2) include the making of a deportation order. It is clear that subsection (1)(a) is directed to articles 3 and 5(1)(f) of the Convention and the decision in Chahal. Subsection (1)(b) is directed primarily to the case where a Non-national cannot for Convention reasons be returned to his home country and there is no other country to which he may be removed.
14. Section 23(1) is the provision most directly challenged in these appeals. It provides:
“23 Detention
(1) A suspected international terrorist may be detained under a provision specified in subsection (2) despite the fact that his removal or departure from the United Kingdom is prevented (whether temporarily or indefinitely) by –
(a) a point of law which wholly or partly relates to an international agreement, or
(b) a practical consideration.”
For present purposes the relevant provision specified in subsection (2) is para 2 of Schedule 3 to the Immigration Act 1971, the effect of which I have outlined in para 8 above.
15. The Act makes provision in section 24 for the grant of bail by the Special Immigration Appeals Commission (“SIAC”), in section 25 for appeal to SIAC against certification by a certified suspected international terrorist, in section 26 for periodic reviews of certification by SIAC, in section 28 for periodic reviews of the operation of sections 21 to 23, in section 29 for the expiry (subject to periodic renewal) of sections 21 to 23 and for the final expiry of those sections, unless renewed, on 10 November 2006. By section 21(8), legal challenges to certification are reserved to SIAC. Section 30 gives SIAC exclusive jurisdiction in derogation matters, which are defined to mean:
“(1)(a) a derogation by the United Kingdom from Article 5(1) of the Convention on Human Rights which relates to the detention of a person where there is an intention to remove or deport him from the United Kingdom, or
(b) the designation under section 14(1) of the Human Rights Act 1998 (c 42) of a derogation within paragraph (a) above.”
The appellants’ challenge in these proceedings was brought under this section …
Public emergency
16. The appellants repeated before the House a contention rejected by both SIAC and the Court of Appeal, that there neither was nor is a “public emergency threatening the life of the nation” within the meaning of article 15(1). Thus, they contended, the threshold test for reliance on article 15 has not been satisfied.
17. The European Court considered the meaning of this provision in Lawless v Ireland (No 3) (1961) 1 EHRR 15, a case concerned with very low-level IRA terrorist activity in Ireland and Northern Ireland between 1954 and 1957 … In para 22 of its judgment the Court held that it was for it to determine whether the conditions laid down in article 15 for the exercise of the exceptional right of derogation had been made out. In paras 28–29 it ruled:
“28. In the general context of Article 15 of the Convention, the natural and customary meaning of the words ‘other public emergency threatening the life of the nation’ is sufficiently clear; they refer to an exceptional situation of crisis or emergency which affects the whole population and constitutes a threat to the organised life of the community of which the State is composed. Having thus established the natural and customary meaning of this conception, the Court must determine whether the facts and circumstances which led the Irish Government to make their Proclamation of 5 July 1957 come within this conception. The Court, after an examination, finds this to be the case; the existence at the time of a ‘public emergency threatening the life of the nation’ was reasonably deduced by the Irish Government from a combination of several factors, namely: in the first place, the existence in the territory of the Republic of Ireland of a secret army engaged in unconstitutional activities and using violence to attain its purposes; secondly, the fact that this army was also operating outside the territory of the State, thus seriously jeopardising the relations of the Republic of Ireland with its neighbour; thirdly, the steady and alarming increase in terrorist activities from the autumn of 1956 and throughout the first half of 1957.
18. In the Greek Case (1969) 12 YB 1 the Government of Greece failed to persuade the Commission that there had been a public emergency threatening the life of the nation such as would justify derogation. In para 153 of its opinion the Commission described the features of such an emergency:
“153. Such a public emergency may then be seen to have, in particular, the following characteristics:
(1) It must be actual or imminent.
(2) Its effects must involve the whole nation.
(3) The continuance of the organised life of the community must be threatened.
(4) The crisis or danger must be exceptional, in that the normal measures or restrictions, permitted by the Convention for the maintenance of public safety, health and order, are plainly inadequate.”
In Ireland v United Kingdom (1978) 2 EHRR 25 the parties were agreed, as were the Commission and the Court, that the article 15 test was satisfied. This was unsurprising, since the IRA had for a number of years represented (para 212) “a particularly far-reaching and acute danger for the territorial integrity of the United Kingdom, the institutions of the six counties and the lives of the province’s inhabitants”. The article 15 test was accordingly not discussed, but the Court made valuable observations about its role where the application of the article is challenged:
“(a) The role of the Court
207. The limits on the Court’s powers of review are particularly apparent where Article 15 is concerned. It falls in the first place to each Contracting State, with its responsibility for ‘the life of [its] nation’, to determine whether that life is threatened by a ‘public emergency’ and, if so, how far it is necessary to go in attempting to overcome the emergency. By reason of their direct and continuous contact with the pressing needs of the moment, the national authorities are in principle in a better position than the international judge to decide both on the presence of such an emergency and on the nature and scope of derogations necessary to avert it. In this matter, Article 15(1) leaves those authorities a wide margin of appreciation. Nevertheless, the States do not enjoy an unlimited power in this respect. The Court, which, with the Commission, is responsible for ensuring the observance of the States’ engagements (Art. 19), is empowered to rule on whether the States have gone beyond the ‘extent strictly required by the exigencies’ of the crisis. The domestic margin of appreciation is thus accompanied by a European supervision.”
The Court repeated this account of its role in Brannigan and McBride v United Kingdom (1993) 17 EHRR 539, adding (para 43) that
“in exercising its supervision the Court must give appropriate weight to such relevant factors as the nature of the rights affected by the derogation, the circumstances leading to, and the duration of, the emergency situation.”
The Court again accepted that there had been a qualifying emergency when the applicants, following a derogation in December 1988, were detained for periods of six days and four days respectively in January 1989. In Aksoy v Turkey (1996) 23 EHRR 553 the Court had little difficulty in accepting, and the applicant did not contest, that a qualifying public emergency existed. This was, again, an unsurprising conclusion in the context of Kurdish separatist terrorism which had claimed almost 8000 lives. The applicant in Marshall v United Kingdom (10 July 2001, Appn No 41571/98) relied on the improved security situation in Northern Ireland to challenge the continuing validity of the United Kingdom’s 1988 derogation. Referring to its previous case law, the Court rejected the application as inadmissible, while acknowledging (pp 11–12) that it must
“address with special vigilance the fact that almost nine years separate the prolonged administrative detention of the applicants Brannigan and McBride from that of the applicant in the case before it.”
19. Article 4(1) of the ICCPR [1966 International Covenant on Civil and Political Rights] is expressed in terms very similar to those of article 15(1), and has led to the promulgation of “The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights” (1985) 7 HRQ 3. In paras 39–40, under the heading “Public Emergency which Threatens the Life of the Nation”, it is said:
“39. A state party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called ‘derogation measures’) only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:
(a) affects the whole of the population and either the whole or part of the territory of the State, and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognised in the Covenant.
40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.”
20. The appellants did not seek to play down the catastrophic nature of what had taken place on 11 September 2001 nor the threat posed to western democracies by international terrorism. But they argued that there had been no public emergency threatening the life of the British nation, for three main reasons: if the emergency was not (as in all the decided cases) actual, it must be shown to be imminent, which could not be shown here; the emergency must be of a temporary nature, which again could not be shown here; and the practice of other states, none of which had derogated from the European Convention, strongly suggested that there was no public emergency calling for derogation. All these points call for some explanation.
21. The requirement of imminence is not expressed in article 15 of the European Convention or article 4 of the ICCPR but it has, as already noted, been treated by the European Court as a necessary condition of a valid derogation. It is a view shared by the distinguished academic authors of the Siracusa Principles, who in 1985 formulated the rule (applying to the ICCPR):
“54. The principle of strict necessity shall be applied in an objective manner. Each measure shall be directed to an actual, clear, present, or imminent danger and may not be imposed merely because of an apprehension of potential danger.”
In submitting that the test of imminence was not met, the appellants pointed to ministerial statements in October 2001 and March 2002: “There is no immediate intelligence pointing to a specific threat to the United Kingdom, but we remain alert, domestically as well as internationally;” and “[I]t would be wrong to say that we have evidence of a particular threat.”
22. The requirement of temporariness is again not expressed in article 15 or article 4 unless it be inherent in the meaning of “emergency.” But the UN Human Rights Committee on 24 July 2001, in General Comment No 29 on article 4 of the ICCPR, observed in para 2 that:
“Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature.”
This view was also taken by the parliamentary Joint Committee on Human Rights, which in its Eighteenth Report of the Session 2003–2004 (HL paper 158, HC 713, 21 July 2004), in para 4, observed:
“Derogations from human rights obligations are permitted in order to deal with emergencies. They are intended to be temporary. According to the Government and the Security Service, the UK now faces a near-permanent emergency.”
It is indeed true that official spokesmen have declined to suggest when, if ever, the present situation might change.
23. No state other than the United Kingdom has derogated from article 5. In Resolution 1271 adopted on 24 January 2002, the Parliamentary Assembly of the Council of Europe resolved (para 9) that:
“In their fight against terrorism, Council of Europe members should not provide for any derogations to the European Convention on Human Rights.”
It also called on all member states (para 12) to:
“refrain from using Article 15 of the European Convention on Human Rights (derogation in time of emergency) to limit the rights and liberties guaranteed under its Article 5 (right to liberty and security).”
In its General Comment No 29 on article 4 of the ICCPR, the UN Human Rights Committee on 24 July 2001 observed (in para 3):
“On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation, in situations not covered by article 4.”
In Opinion 1/2002 of the Council of Europe Commissioner for Human Rights (Comm DH (2002) 7, 28 August 2002), Mr Alvaro Gil-Robles observed, in para 33:
“Whilst acknowledging the obligation of governments to protect their citizens against the threat of terrorism, the Commissioner is of the opinion that general appeals to an increased risk of terrorist activity post September 11th 2001 cannot, on their own, be sufficient to justify derogating from the Convention. Several European states long faced with recurring terrorist activity have not considered it necessary to derogate from Convention rights. Nor have any found it necessary to do so under the present circumstances. Detailed information pointing to a real and imminent danger to public safety in the United Kingdom will, therefore, have to be shown.”
The Committee of Privy Counsellors established pursuant to section 122 of the 2001 Act under the chairmanship of Lord Newton of Braintree, which reported on 18 December 2003 (Anti-terrorism, Crime and Security Act 2001 Review: Report, HC 100) attached significance to this point:
“189. The UK is the only country to have found it necessary to derogate from the European Convention on Human Rights. We found this puzzling, as it seems clear that other countries face considerable threats from terrorists within their borders.”
It noted that France, Italy and Germany had all been threatened, as well as the UK.
24. The appellants submitted that detailed information pointing to a real and imminent danger to public safety in the United Kingdom had not been shown. In making this submission they were able to rely on a series of reports by the Joint Committee on Human Rights …
26. The appellants have in my opinion raised an important and difficult question, as the continuing anxiety of the Joint Committee on Human Rights, the observations of the Commissioner for Human Rights and the warnings of the UN Human Rights Committee make clear. In the result, however, not without misgiving (fortified by reading the opinion of my noble and learned friend Lord Hoffmann), I would resolve this issue against the appellants, for three main reasons.
27. First, it is not shown that SIAC or the Court of Appeal misdirected themselves on this issue. SIAC considered a body of closed material, that is, secret material of a sensitive nature not shown to the parties. The Court of Appeal was not asked to read this material. The Attorney General expressly declined to ask the House to read it. From this I infer that while the closed material no doubt substantiates and strengthens the evidence in the public domain, it does not alter its essential character and effect. But this is in my view beside the point. It is not shown that SIAC misdirected itself in law on this issue, and the view which it accepted was one it could reach on the open evidence in the case.
28. My second reason is a legal one. The European Court decisions in Ireland v United Kingdom (1978) 2 EHRR 25; Brannigan and McBride v United Kingdom (1993) 17 EHRR 539; Aksoy v Turkey (1996) 23 EHRR 553 and Marshall v United Kingdom (10 July 2001, Appn. No. 41571/98) seem to me to be, with respect, clearly right. In each case the member state had actually experienced widespread loss of life caused by an armed body dedicated to destroying the territorial integrity of the state. To hold that the article 15 test was not satisfied in such circumstances, if a response beyond that provided by the ordinary course of law was required, would have been perverse. But these features were not, on the facts found, very clearly present in Lawless v Ireland (No 3) (1961) 1 EHRR 15. That was a relatively early decision of the European Court, but it has never to my knowledge been disavowed and the House is required by section 2(1) of the 1998 Act to take it into account. The decision may perhaps be explained as showing the breadth of the margin of appreciation accorded by the Court to national authorities. It may even have been influenced by the generous opportunity for release given to Mr Lawless and those in his position. If, however, it was open to the Irish Government in Lawless to conclude that there was a public emergency threatening the life of the Irish nation, the British Government could scarcely be faulted for reaching that conclusion in the much more dangerous situation which arose after 11 September.
29. Thirdly, I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did. Any prediction about the future behaviour of human beings (as opposed to the phases of the moon or high water at London Bridge) is necessarily problematical. Reasonable and informed minds may differ, and a judgment is not shown to be wrong or unreasonable because that which is thought likely to happen does not happen. It would have been irresponsible not to err, if at all, on the side of safety. As will become apparent, I do not accept the full breadth of the Attorney General’s argument on what is generally called the deference owed by the courts to the political authorities. It is perhaps preferable to approach this question as one of demarcation of functions or what Liberty in its written case called “relative institutional competence”. The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision. The smaller, therefore, will be the potential role of the court. It is the function of political and not judicial bodies to resolve political questions. Conversely, the greater the legal content of any issue, the greater the potential role of the court, because under our constitution and subject to the sovereign power of Parliament it is the function of the courts and not of political bodies to resolve legal questions. The present question seems to me to be very much at the political end of the spectrum: see Secretary of State for the Home Department v Rehman [2001] UKHL 47, [2003] 1 AC 153, para 62, per Lord Hoffmann. The appellants recognised this by acknowledging that the Home Secretary’s decision on the present question was less readily open to challenge than his decision (as they argued) on some other questions. This reflects the unintrusive approach of the European Court to such a question. I conclude that the appellants have shown no ground strong enough to warrant displacing the Secretary of State’s decision on this important threshold question.
Proportionality
30. Article 15 requires that any measures taken by a member state in derogation of its obligations under the Convention should not go beyond what is “strictly required by the exigencies of the situation.” Thus the Convention imposes a test of strict necessity or, in Convention terminology, proportionality. The appellants founded on the principle adopted by the Privy Council in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80. In determining whether a limitation is arbitrary or excessive, the court must ask itself:
“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”
31. The appellants’ argument under this head can, I hope fairly, be summarised as involving the following steps:
(1) Part 4 of the 2001 Act reversed the effect of the decisions in Hardial Singh [1984] 1 WLR 704 and Chahal (1996) 23 EHRR 413 and was apt to address the problems of immigration control caused to the United Kingdom by article 5(1)(f) of the Convention read in the light of those decisions.
(2) The public emergency on which the United Kingdom relied to derogate from the Convention right to personal liberty was the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters.
(3) While the threat to the security of the United Kingdom derived predominantly and most immediately from foreign nationals, some of whom could not be deported because they would face torture or inhuman or degrading treatment or punishment in their home countries and who could not be deported to any third country willing to receive them, the threat to the United Kingdom did not derive solely from such foreign nationals.
(4) Sections 21 and 23 did not rationally address the threat to the security of the United Kingdom presented by Al-Qaeda terrorists and their supporters because (a) it did not address the threat presented by UK nationals, (b) it permitted foreign nationals suspected of being Al-Qaeda terrorists or their supporters to pursue their activities abroad if there was any country to which they were able to go, and (c) the sections permitted the certification and detention of persons who were not suspected of presenting any threat to the security of the United Kingdom as Al-Qaeda terrorists or supporters.
(5) If the threat presented to the security of the United Kingdom by UK nationals suspected of being Al-Qaeda terrorists or their supporters could be addressed without infringing their right to personal liberty, it is not shown why similar measures could not adequately address the threat presented by foreign nationals.
(6) Since the right to personal liberty is among the most fundamental of the rights protected by the European Convention, any restriction of it must be closely scrutinised by the national court and such scrutiny involves no violation of democratic or constitutional principle.
(7) In the light of such scrutiny, neither the Derogation Order nor sections 21 and 23 of the 2001 Act can be justified.
32. It is unnecessary to linger on the first two steps of this argument, neither of which is controversial and both of which are clearly correct. The third step calls for closer examination. The evidence before SIAC was that the Home Secretary considered “that the serious threats to the nation emanated predominantly (albeit not exclusively) and more immediately from the category of foreign nationals.” In para 95 of its judgment SIAC held:
“But the evidence before us demonstrates beyond argument that the threat is not so confined. [i.e. is not confined to the alien section of the population]. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists,’ and it was clear from the submissions made to us that in the opinion of the [Home Secretary] there are others at liberty in the United Kingdom who could be similarly defined.”
This finding has not been challenged, and since SIAC is the responsible fact-finding tribunal it is unnecessary to examine the basis of it. There was however evidence before SIAC that “upwards of a thousand individuals from the UK are estimated on the basis of intelligence to have attended training camps in Afghanistan in the last five years,” that some British citizens are said to have planned to return from Afghanistan to the United Kingdom and that “The backgrounds of those detained show the high level of involvement of British citizens and those otherwise connected with the United Kingdom in the terrorist networks.” It seems plain that the threat to the United Kingdom did not derive solely from foreign nationals or from foreign nationals whom it was unlawful to deport …
33. The fourth step in the appellants’ argument is of obvious importance to it. It is plain that sections 21 and 23 of the 2001 Act do not address the threat presented by UK nationals since they do not provide for the certification and detention of UK nationals. It is beside the point that other sections of the 2001 Act and the 2000 Act do apply to UK nationals, since they are not the subject of derogation, are not the subject of complaint and apply equally to foreign nationals. Yet the threat from UK nationals, if quantitatively smaller, is not said to be qualitatively different from that from foreign nationals. It is also plain that sections 21 and 23 do permit a person certified and detained to leave the United Kingdom and go to any other country willing to receive him, as two of the appellants did when they left for Morocco and France respectively (see para 2 above). Such freedom to leave is wholly explicable in terms of immigration control: if the British authorities wish to deport a foreign national but cannot deport him to country “A” because of Chahal their purpose is as well served by his voluntary departure for country “B”. But allowing a suspected international terrorist to leave our shores and depart to another country, perhaps a country as close as France, there to pursue his criminal designs, is hard to reconcile with a belief in his capacity to inflict serious injury to the people and interests of this country. It seems clear from the language of section 21 of the 2001 Act, read with the definition of terrorism in section 1 of the 2000 Act, that section 21 is capable of covering those who have no link at all with Al-Qaeda (they might, for example, be members of the Basque separatist organisation ETA), or who, although supporting the general aims of Al-Qaeda, reject its cult of violence. The Attorney General conceded that sections 21 and 23 could not lawfully be invoked in the case of suspected international terrorists other than those thought to be connected with Al-Qaeda, and undertook that the procedure would not be used in such cases … The appellants were content to accept the Attorney General’s concession and undertaking. It is not however acceptable that interpretation and application of a statutory provision bearing on the liberty of the subject should be governed by implication, concession and undertaking.
35. The fifth step in the appellants’ argument permits of little elaboration. But it seems reasonable to assume that those suspected international terrorists who are UK nationals are not simply ignored by the authorities. When G, one of the appellants, was released from prison by SIAC on bail (G v Secretary of State for the Home Department (SC/2/2002, Bail Application SCB/10, 20 May 2004), it was on condition (among other things) that he wear an electronic monitoring tag at all times; that he remain at his premises at all times; that he telephone a named security company five times each day at specified times; that he permit the company to install monitoring equipment at his premises; that he limit entry to his premises to his family, his solicitor, his medical attendants and other approved persons; that he make no contact with any other person; that he have on his premises no computer equipment, mobile telephone or other electronic communications device; that he cancel the existing telephone link to his premises; and that he install a dedicated telephone link permitting contact only with the security company. The appellants suggested that conditions of this kind, strictly enforced, would effectively inhibit terrorist activity. It is hard to see why this would not be so.
36. In urging the fundamental importance of the right to personal freedom, as the sixth step in their proportionality argument, the appellants were able to draw on the long libertarian tradition of English law, dating back to chapter 39 of Magna Carta 1215, given effect in the ancient remedy of habeas corpus, declared in the Petition of Right 1628, upheld in a series of landmark decisions down the centuries and embodied in the substance and procedure of the law to our own day … In its treatment of article 5 of the European Convention, the European Court also has recognised the prime importance of personal freedom. In Kurt v Turkey (1998) 27 EHRR 373, para 122, it referred to “the fundamental importance of the guarantees contained in Article 5 for securing the right of individuals in a democracy to be free from arbitrary detention at the hands of the authorities” and to the need to interpret narrowly any exception to “a most basic guarantee of individual freedom”. In Garcia Alva v Germany (2001) 37 EHRR 335, para 39, it referred to “the dramatic impact of deprivation of liberty on the fundamental rights of the person concerned” …
37. While the Attorney General challenged and resisted the third, fourth and fifth steps in the appellants’ argument, he directed the weight of his submission to challenging the standard of judicial review for which the appellants contended in this sixth step. He submitted that as it was for Parliament and the executive to assess the threat facing the nation, so it was for those bodies and not the courts to judge the response necessary to protect the security of the public. These were matters of a political character calling for an exercise of political and not judicial judgment. Just as the European Court allowed a generous margin of appreciation to member states, recognising that they were better placed to understand and address local problems, so should national courts recognise, for the same reason, that matters of the kind in issue here fall within the discretionary area of judgment properly belonging to the democratic organs of the state. It was not for the courts to usurp authority properly belonging elsewhere … This is an important submission, properly made, and it calls for careful consideration.
38. Those conducting the business of democratic government have to make legislative choices which, notably in some fields, are very much a matter for them, particularly when (as is often the case) the interests of one individual or group have to be balanced against those of another individual or group or the interests of the community as a whole. The European Court has recognised this on many occasions … Where the conduct of government is threatened by serious terrorism, difficult choices have to be made and the terrorist dimension cannot be overlooked. This also the European Commission and Court have recognised …
39. While any decision made by a representative democratic body must of course command respect, the degree of respect will be conditioned by the nature of the decision. As the European Court observed in Fretté v France (2002) 38 EHRR 438, para 40,
“… the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment in law. The scope of the margin of appreciation will vary according to the circumstances, the subject-matter and its background; in this respect, one of the relevant factors may be the existence or non-existence of common ground between the laws of Contracting States.”
A similar approach is found in domestic authority. In R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381, Lord Hope of Craighead said:
“It will be easier for such [a discretionary] area of judgment to be recognised where the Convention itself requires a balance to be struck, much less so where the right is stated in terms which are unqualified. It will be easier for it to be recognised where the issues involve questions of social or economic policy, much less so where the rights are of high constitutional importance or are of a kind where the courts are especially well placed to assess the need for protection.”
Another area in which the court was held to be qualified to make its own judgment is the requirement of a fair trial: R v A (No 2) [2002] 1 AC 45, para 36 …
40. The Convention regime for the international protection of human rights requires national authorities, including national courts, to exercise their authority to afford effective protection. The European Court made this clear in the early case of Handyside v United Kingdom (1976) 1 EHRR 737, para 48:
“The Court points out that the machinery of protection established by the Convention is subsidiary to the national systems safeguarding human rights. The Convention leaves to each Contracting State, in the first place, the task of securing the rights and freedoms it enshrines.”
Thus the European Commissioner for Human Rights had authority for saying (Opinion 1/2002, para 9):
“It is furthermore, precisely because the Convention presupposes domestic controls in the form of a preventive parliamentary scrutiny and posterior judicial review that national authorities enjoy a large margin of appreciation in respect of derogations. This is, indeed, the essence of the principle of the subsidiarity of the protection of Convention rights.”
In Smith and Grady v United Kingdom (1999) 29 EHRR 493 the traditional Wednesbury approach to judicial review was held to afford inadequate protection. It is now recognised that “domestic courts must themselves form a judgment whether a Convention right has been breached” and that “the intensity of review is somewhat greater under the proportionality approach”: R (Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532, paras 23, 27.
41. Even in a terrorist situation the Convention organs have not been willing to relax their residual supervisory role: Brogan v United Kingdom above, para 80; Fox, Campbell & Hartley v United Kingdom , above, paras 32–34. In Aksoy v Turkey (1996) 23 EHRR 553, para 76, the Court, clearly referring to national courts as well as the Convention organs, held:
“The Court would stress the importance of Article 5 in the Convention system: it enshrines a fundamental human right, namely the protection of the individual against arbitrary interference by the State with his or her right to liberty. Judicial control of interferences by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5(3), which is intended to minimise the risk of arbitrariness and to ensure the rule of law.”
In Korematsu v United States 584 F Supp 1406 (1984) para 21, Judge Patel observed that the Supreme Court’s earlier decision (323 US 214 (1944))
“stands as a caution that in times of distress the shield of military necessity and national security must not be used to protect governmental actions from close scrutiny and accountability.”
Simon Brown LJ in International Transport Roth GmbH v Secretary of State for the Home Department [2003] QB 728 observed, in para 27, that “… the court’s role under the 1998 Act is as the guardian of human rights. It cannot abdicate this responsibility.” He went on to say, in para 54:
“But judges nowadays have no alternative but to apply the Human Rights Act 1998. Constitutional dangers exist no less in too little judicial activism as in too much. There are limits to the legitimacy of executive or legislative decision-making, just as there are to decision-making by the courts.”
42. It follows from this analysis that the appellants are in my opinion entitled to invite the courts to review, on proportionality grounds, the Derogation Order and the compatibility with the Convention of section 23 and the courts are not effectively precluded by any doctrine of deference from scrutinising the issues raised. It also follows that I do not accept the full breadth of the Attorney General’s submissions. I do not in particular accept the distinction which he drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate …
43. The appellants’ proportionality challenge to the Order and section 23 is, in my opinion, sound, for all the reasons they gave and also for those given by the European Commissioner for Human Rights and the Newton Committee. The Attorney General could give no persuasive answer … [T]he choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non-UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al-Qaeda, may harbour no hostile intentions towards the United Kingdom. The conclusion that the Order and section 23 are, in Convention terms, disproportionate is in my opinion irresistible.
44. Since, under section 7 of the Special Immigration Appeals Commission Act 1997 and section 30(5) of the 2001 Act, an appeal from SIAC lies only on a point of law, that is not the end of the matter. It is necessary to examine SIAC’s reasons for rejecting this part of the appellants’ challenge. They are given in para 51 of SIAC’s judgment, and are fourfold:
(1) that there is an advantage to the UK in the removal of a potential terrorist from circulation in the UK because he cannot operate actively in the UK whilst he is either not in the country or not at liberty;
(2) that the removal of potential terrorists from their UK communities disrupts the organisation of terrorist activities;
(3) that the detainee’s freedom to leave, far from showing that the measures are irrational, tends to show that they are to this extent properly tailored to the state of emergency; and
(4) that it is difficult to see how a power to detain a foreign national who had not been charged with a criminal offence and wished to leave the UK could readily be defended as tending to prevent him committing acts of terrorism aimed at the UK.
Assuming, as one must, that there is a public emergency threatening the life of the nation, measures which derogate from article 5 are permissible only to the extent strictly required by the exigencies of the situation, and it is for the derogating state to prove that that is so. The reasons given by SIAC do not warrant its conclusion. The first reason does not explain why the measures are directed only to foreign nationals. The second reason no doubt has some validity, but is subject to the same weakness. The third reason does not explain why a terrorist, if a serious threat to the UK, ceases to be so on the French side of the English Channel or elsewhere. The fourth reason is intelligible if the foreign national is not really thought to be a serious threat to the UK, but hard to understand if he is. I do not consider SIAC’s conclusion as one to which it could properly come … The European Court does not approach questions of proportionality as questions of pure fact: see, for example, Smith and Grady v United Kingdom, above. Nor should domestic courts do so. The greater intensity of review now required in determining questions of proportionality, and the duty of the courts to protect Convention rights, would in my view be emasculated if a judgment at first instance on such a question were conclusively to preclude any further review. So would excessive deference, in a field involving indefinite detention without charge or trial, to ministerial decision. In my opinion, SIAC erred in law and the Court of Appeal erred in failing to correct its error.
Discrimination
45. As part of their proportionality argument, the appellants attacked section 23 as discriminatory. They contended that, being discriminatory, the section could not be “strictly required” within the meaning of article 15 and so was disproportionate. The courts below found it convenient to address this discrimination issue separately, and I shall do the same.
46. The appellants complained that in providing for the detention of suspected international terrorists who were not UK nationals but not for the detention of suspected international terrorists who were UK nationals, section 23 unlawfully discriminated against them as non-UK nationals in breach of article 14 of the European Convention … It is well established that the obligation on the state not to discriminate applies only to rights which it is bound to protect under the Convention. The appellants claim that section 23 discriminates against them in their enjoyment of liberty under article 5. Article 14 is of obvious importance. In his influential work “An International Bill of the Rights of Man” (1945), p 115, Professor Hersch Lauterpacht wrote: “The claim to equality before the law is in a substantial sense the most fundamental of the rights of man.” …
47. The United Kingdom did not derogate from article 14 of the European Convention (or from article 26 of the ICCPR, which corresponds to it). The Attorney General did not submit that there had been an implied derogation, an argument advanced to SIAC but not to the Court of Appeal or the House.
48. The foreign nationality of the appellants does not preclude them from claiming the protection of their Convention rights. By article 1 of the Convention (which has not been expressly incorporated) the contracting states undertook to secure the listed Convention rights “to everyone within their jurisdiction”. That includes the appellants. The European Court has recognised the Convention rights of non-nationals … This accords with domestic authority. In Khawaja v Secretary of State for the Home Department [1984] 1 AC 74:
“Habeas corpus protection is often expressed as limited to ‘British subjects’. Is it really limited to British nationals? Suffice it to say that the case law has given an emphatic ‘no’ to the question. Every person within the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection. This principle has been in the law at least since Lord Mansfield freed ‘the black’ in Sommersetts Case (1772) 20 St. Tr. 1. There is nothing here to encourage in the case of aliens or non-patrials the implication of words excluding the judicial review our law normally accords to those whose liberty is infringed.”
49. It was pointed out that nationality is not included as a forbidden ground of discrimination in article 14. The Strasbourg Court has however treated nationality as such. In Gaygusuz v Austria (1996) 23 EHRR 364, para 42, it said:
“However, very weighty reasons would have to be put forward before the Court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”
The Attorney General accepted that “or other status” would cover the appellants’ immigration status, so nothing turns on this point …
50. The first important issue between the parties was whether, in the present case, the Secretary of State had discriminated against the appellants on the ground of their nationality or immigration status. The Court gave guidance on the correct approach in the Belgian Linguistic Case (No 2) (1968) 1 EHRR 252, para 10 … The question is whether persons in an analogous or relevantly similar situation enjoy preferential treatment, without reasonable or objective justification for the distinction, and whether and to what extent differences in otherwise similar situations justify a different treatment in law … The parties were agreed that in domestic law, seeking to give effect to the Convention, the correct approach is to pose the questions formulated by Grosz, Beatson and Duffy, Human Rights: The 1998 Act and the European Convention (2000), para C14–08, substantially adopted by Brooke LJ in Wandsworth London Borough Council v Michalak [2002] EWCA Civ 271 … and refined in the later cases of … R(S) v Chief Constable of the South Yorkshire Police [2004] UKHL 39, [2004] 1 WLR 2196. As expressed in para 42 of this last case the questions are:
“(1) Do the facts fall within the ambit of one or more of the Convention rights?
(2) Was there a difference in treatment in respect of that right between the complainant and others put forward for comparison? (3) If so, was the difference in treatment on one or more of the proscribed grounds under article 14? (4) Were those others in an analogous situation? (5) Was the difference in treatment objectively justifiable in the sense that it had a legitimate aim and bore a reasonable relationship of proportionality to that aim?”
51. It is plain that the facts fall within the ambit of article 5. That is why the United Kingdom thought it necessary to derogate … The appellants were treated differently from both suspected international terrorists who were not UK nationals but could be removed and also from suspected international terrorists who were UK-nationals and could not be removed. There can be no doubt but that the difference of treatment was on grounds of nationality or immigration status (one of the proscribed grounds under article 14). The problem has been treated as an immigration problem.
52. The Attorney General submitted that the position of the appellants should be compared with that of non-UK nationals who represented a threat to the security of the UK but who could be removed to their own or to safe third countries … By contrast, the appellants’ chosen comparators were suspected international terrorists who were UK nationals …
53. Were suspected international terrorists who were UK nationals, the appellants’ chosen comparators, in a relevantly analogous situation to the appellants? The question … is whether the circumstances of X and Y are so similar as to call (in the mind of a rational and fair-minded person) for a positive justification for the less favourable treatment of Y in comparison with X. The Court of Appeal thought not because (per Lord Woolf, para 56) “the nationals have a right of abode in this jurisdiction but the aliens only have a right not to be removed”. This is, however, to accept the correctness of the Secretary of State’s choice of immigration control as a means to address the Al-Qaeda security problem, when the correctness of that choice is the issue to be resolved. In my opinion, the question demands an affirmative answer. Suspected international terrorists who are UK nationals are in a situation analogous with the appellants because, in the present context, they share the most relevant characteristics of the appellants.
54. Following the guidance given in the Belgian Linguistic Case (No 2) (see para 50 above) it is then necessary to assess the justification of the differential treatment of non-UK nationals “in relation to the aim and effects of the measure under consideration”. The undoubted aim of the relevant measure, section 23 of the 2001 Act, was to protect the UK against the risk of Al-Qaeda terrorism. As noted above (para 32) that risk was thought to be presented mainly by non-UK nationals but also and to a significant extent by UK nationals also. The effect of the measure was to permit the former to be deprived of their liberty but not the latter. The appellants were treated differently because of their nationality or immigration status. The comparison contended for by the Attorney General might be reasonable and justified in an immigration context, but cannot in my opinion be so in a security context, since the threat presented by suspected international terrorists did not depend on their nationality or immigration status. It is noteworthy that in Ireland v United Kingdom (1978) 2 EHRR 25 the European Court was considering legislative provisions which were, unlike section 23, neutral in their terms, in that they provided for internment of loyalist as well as republican terrorists. Even so, the Court was gravely exercised whether the application of the measures had been even handed as between the two groups of terrorists. It seems very unlikely that the measures could have been successfully defended had they only been capable of application to republican terrorists, unless it were shown that they alone presented a threat.
55. The Attorney General also made a more far-reaching submission. He relied on the old-established rule that a sovereign state may control the entry of aliens into its territory and their expulsion from it. He submitted that the Convention permits the differential treatment of aliens as compared with nationals. He also submitted that international law sanctions the differential treatment, including detention, of aliens in times of war or public emergency.
56. … It is indeed obvious that in an immigration context some differentiation must almost inevitably be made between nationals and non-nationals since the former have a right of abode and the latter do not … The Convention recognises in article 5(1)(f) that a non-national may be lawfully detained pending deportation, and that is a position in which a national could never find himself. The question is whether and to what extent states may differentiate outside the immigration context.
63. The materials I have cited are not legally binding on the United Kingdom. But there is no European or other authority to support the Attorney General’s submission. On the other hand, the Council of Europe is the body to which the states parties to the European Convention belong. The Attorney General in his written case accepted that article 14 of the European Convention and article 26 of the ICCPR are to the same effect. And the United Kingdom has ratified the Convention on the Elimination of Racial Discrimination. These materials are inimical to the submission that a state may lawfully discriminate against foreign nationals by detaining them but not nationals presenting the same threat in a time of public emergency.
66. SIAC concluded that section 23 was discriminatory and so in breach of article 14 of the Convention. It ruled, in paras 94–95 of its judgment:
“94. If there is to be an effective derogation from the right to liberty enshrined in Article 5 in respect of suspected international terrorists – and we can see powerful arguments in favour of such a derogation – the derogation ought rationally to extend to all irremovable suspected international terrorists. It would properly be confined to the alien section of the population only if, as [counsel for the appellants] contends, the threat stems exclusively or almost exclusively from that alien section.
95. But the evidence before us demonstrates beyond argument that the threat is not so confined. There are many British nationals already identified – mostly in detention abroad – who fall within the definition of ‘suspected international terrorists’, and it was clear from the submissions made to us that in the opinion of the [Secretary of State] there are others at liberty in the United Kingdom who could be similarly defined. In those circumstances we fail to see how the derogation can be regarded as other than discriminatory on the grounds of national origin.”
67. The Court of Appeal differed from SIAC on the discrimination issue: [2004] QB 335. Lord Woolf CJ referred (para 45) to a tension between article 15 and article 14 of the European Convention. He held (para 49) that it would be “surprising indeed” if article 14 prevented the Secretary of State from restricting his power to detain to a smaller rather than a larger group. He held (para 56) that there was objective and reasonable justification for the differential treatment of the appellants. Brooke LJ (paras 102, 132) also found good objective reasons for the Secretary of State’s differentiation, although he also relied (paras 112–132) on rules of public international law. Chadwick LJ found (para 152) that since the Secretary of State had reached his judgment on what the exigencies of the situation required, his decision had to stand, and that “The decision to confine the measures to be taken to the detention of those who are subject to deportation, but who cannot (for the time being) be removed, is not a decision to discriminate against that class on the grounds of nationality” (para 153).
68. I must respectfully differ from this analysis. Article 15 requires any derogating measures to go no further than is strictly required by the exigencies of the situation and the prohibition of discrimination on grounds of nationality or immigration status has not been the subject of derogation. Article 14 remains in full force. Any discriminatory measure inevitably affects a smaller rather than a larger group, but cannot be justified on the ground that more people would be adversely affected if the measure were applied generally. What has to be justified is not the measure in issue but the difference in treatment between one person or group and another. What cannot be justified here is the decision to detain one group of suspected international terrorists, defined by nationality or immigration status, and not another. To do so was a violation of article 14. It was also a violation of article 26 of the ICCPR and so inconsistent with the United Kingdom’s other obligations under international law within the meaning of article 15 of the European Convention.
69. Brooke LJ also resolved the discrimination issue in favour of the Secretary of State in reliance on a public international law argument (see paras 112–132 of his judgment) which the Attorney General addressed to the Court of Appeal and repeated in the House. The first step in this argument was to assert the historic right of sovereign states over aliens entering or residing in their territory. Historically, this was the position … But a sovereign state may by international treaty restrict its absolute power over aliens within or seeking to enter its territory, and in recent years states have increasingly done so. The Attorney General submitted that international law sanctioned the detention of aliens in time of war or public emergency, and for this purpose drew attention to a number of instruments which it is necessary briefly to consider:
(1) The Geneva Convention Relative to the Protection of Civilian Persons in Time of War 1949. This instrument envisaged the internment of alien enemies in time of war or armed conflict. It is not suggested that the United Kingdom is, in a legal sense, at war or involved in an armed conflict, and it has no bearing on these appeals.
(2) The Geneva Convention Relating to the Status of Refugees 1951. The Attorney General submitted that article 9 of this Convention, permitting states to take provisional measures “in time of war or other grave and exceptional circumstances”, was apt to cover the detention of the appellants … It is, however, permissible under article 33(2) of the Refugee Convention to return to his home country a refugee at risk of torture or inhuman treatment in that country, a course which the European Convention precludes (see para 9 above). It cannot therefore avail the Secretary of State to show that the detention of the appellants is permissible under the Refugee Convention if it is not permissible under the European Convention because it is the latter which he is said to have violated.
(3) The Convention on the Status of Stateless Persons 1954. Article 9 of this Convention corresponds to article 9 of the Refugee Convention. The same comment applies to it.
(4) The ICCPR. The Attorney General pointed out, quite correctly, that article 4(1) of the ICCPR, in requiring that a measure introduced in derogation from Covenant obligations must not discriminate, does not include nationality, national origin or “other status” among the forbidden grounds of discrimination … It appears that this was deliberate: UN Doc E/CN. 4/SR. 330 (United Nations Economic and Social Council, Commission on Human Rights, Eighth Session, 313th meeting, 10 June 1952), pp 3–4. However, by article 2 of the ICCPR the states parties undertake to respect and ensure to all individuals within the territory the rights in the Covenant “without distinction of any kind, such as race …, national or social origin … or other status”. Similarly, article 26 guarantees equal protection against discrimination “on any ground such as race, … national or social origin … or other status”. This language is broad enough to embrace nationality and immigration status. It is open to states to derogate from articles 2 and 26 but the United Kingdom has not done so. If, therefore, as I have concluded, section 23 discriminates against the appellants on grounds of their nationality or immigration status, there is a breach of articles 2 and 26 of the ICCPR and so a breach of the UK’s “other obligations under international law” within the meaning of article 15 of the European Convention.
(5) The UN Declaration on the Human Rights of Individuals who are not Nationals of the Country in which They Live 1985. As is apparent from the wording of this Declaration, quoted in para 58 above, it sanctions differences in the treatment of nationals and aliens only so long as they are not “incompatible with the international legal obligations of the State, including those in the field of human rights”. Section 23 is incompatible with articles 5(1)(f) and 14 of the European Convention and articles 2, 9 and 26 of the ICCPR, all of which express international obligations of the United Kingdom.
(6) The EC Treaty. The Attorney General pointed out that article 39(3) of the EC Treaty is so drafted as not to encroach on member states’ general right to control the entry and activity of aliens, and the 13th recital to Council Directive 2000/43/EC expressly excludes differences based on nationality from the scope of the Directive. It cannot, however, avail the Secretary of State that the United Kingdom is not in breach of the EC Treaty and this Directive if it is in breach of the European Convention.
(7) The European Convention. It was pointed out, quite correctly, that article 16 sanctions the imposition by member states of restrictions on the political activity of aliens. To that extent, as in the context of immigration, aliens are distinguishable from citizens. But there is nothing in the Convention to warrant the discriminatory detention of aliens against whom action is not being taken with a view to deportation or extradition.
(8) Reference was made to three United States authorities. In the first of these, Shaughnessy v United States, ex rel Mezei 345 US 206 (1953), the applicant was held not to be entitled to the protection of the due process clause because, although he had previously lived in the United States for some twenty five years before a nineteen month break, he was treated on his return as not having entered the country. This is not a decision which would be followed by the European Court, which in D v United Kingdom (1997) 24 EHRR 423, para 48, showed some impatience with what in Lynch v Cannatella 810 F 2d 1363 (1987), para 27, was called “the entry fiction” … In Fernandez v Wilkinson 505 F Supp 787 (1980) the alien had again not been admitted to the United States, but despite the “time-honoured legal fiction” of non-entry Judge Rogers, sitting in the US District Court for Kansas, drew on customary international law to hold that the alien could not be detained indefinitely when there was no prospect of removing him. The alien in Zadvydas v Davis 533 US 678 (2001) had been admitted to the United States and a majority of the Supreme Court held that he could not be detained indefinitely if there was no prospect of removing him. The court did not have to consider the position of aliens judged to present a terrorist risk (p 696) but might well have sanctioned indefinite detention in such circumstances given the heightened deference shown by US courts to the judgments of the political branches with respect to national security … It would however seem that such a ruling would be contrary to the American Convention on Human Rights 1969. In its Report on Terrorism and Human Rights (22 October 2002), the Inter-American Commission on Human Rights stated:
“350 … Even in respect of rights that may be the subject of limitation or derogation, states must comply strictly with the conditions regulating the permissibility of such limitations or derogations, which in turn are based upon the fundamental principles of necessity, proportionality and non-discrimination.
351 Also non-derogable under international human rights law and international humanitarian law is the requirement that states fulfil their obligations without discrimination of any kind, including discrimination based upon … national or social origin.”
US authority does not provide evidence of general international practice.
70. Neither singly nor cumulatively do these materials, in my opinion, support a conclusion other than that which I have expressed.
71. Having regard to the conclusions I have already reached, I think it unnecessary to address detailed arguments based on alleged breaches of articles 3 and 6 of the European Convention. I express no opinion on those questions, nor on a question relating to the admissibility of evidence obtained by torture which was not argued before SIAC or the Court of Appeal in the part of these proceedings which is now the subject of appeal.
73. I would allow the appeals. There will be a quashing order in respect of the Human Rights Act 1998 (Designated Derogation) Order 2001. There will also be a declaration under section 4 of the Human Rights Act 1998 that section 23 of the Anti-terrorism, Crime and Security Act 2001 is incompatible with articles 5 and 14 of the European Convention insofar as it is disproportionate and permits detention of suspected international terrorists in a way that discriminates on the ground of nationality or immigration status. The Secretary of State must pay the appellants’ costs in the House and below. 
United Kingdom, House of Lords, A and others v. Secretary of State for the Home Department, Judgment, 12 December 2004, §§ 1–3, 5, 7–24, 26–33, 35–56, 63, 66–71 and 73.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2006, in the Ahmad and Aswat case, the England and Wales High Court of Justice held:
Introductory: Background Facts
1. This is another case about extradition to the United States of America pursuant to provisions contained in the Extradition Act 2003 (“the 2003 Act”) …
4. Mr Aswat is wanted to stand trial in the United States District Court for the Southern District of New York … The essence of the allegations is that he became involved in a conspiracy with Abu Hamza and others to establish a jihad training camp in Bly, Oregon …
The 2003 Act
5. In order to understand the nature of the extradition process, its application on the facts of this case, and the basis of the appeals, it is convenient first to introduce the relevant provisions of the 2003 Act.
7. Part II deals with “category 2” territories … A principal category 2 territory is the United States … S.70 requires the Secretary of State to issue a certificate “if he receives a valid request for the extradition to a category 2 territory of a person who is in the United Kingdom”. In this case there is no dispute as to the statutory validity of the request that was made in respect of either claimant. Upon the certificate’s issue the Secretary of State must (s.70(9)) send the documents to the appropriate judge … The judge may then (s.71(2)) “issue a warrant for the arrest of the person whose extradition is requested” if certain conditions are fulfilled …
8. As for the extradition hearing itself … the judge must next proceed under s.79 which is cross-headed “Bars to extradition”. There are four such bars, of which the second (s.79(1)(b)) is “extraneous considerations” and is engaged by one of Mr Fitzgerald’s [appearing as counsel for the appellants] submissions. “Extraneous considerations” are dealt with in s.81, which provides in part:
“A person’s extradition to a category 2 territory is barred by reason of extraneous considerations if (and only if) it appears that –
(b) if extradited he might be prejudiced at his trial or punished, detained or restricted in his personal liberty by reason of his race, religion, nationality, gender, sexual orientation or political opinions.”
9. … S.87 provides:
“(1) If the judge is required to proceed under this section (by virtue of section 84…) he must decide whether the person’s extradition would be compatible with the Convention rights within the meaning of the Human Rights Act 1998.
(2) If the judge decides the question in subsection (1) in the negative he must order the person’s discharge.
(3) If the judge decides that question in the affirmative he must send the case to the Secretary of State for his decision whether the person is to be extradited.”
Military Order No 1
20. On 13 November 2001, thus almost exactly two months after the atrocities of 11 September 2001, the President of the United States issued Military Order No 1 on the “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” …
Sec. 2. Definition and Policy.
(a) The term ‘individual subject to this order’ shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that:
(i) there is reason to believe that such individual, at the relevant times,
(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefor, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy …
Sec. 3. Detention Authority of the Secretary of Defense. Any individual subject to this order shall be –
(a) detained at an appropriate location designated by the Secretary of Defense outside or within the United States;
Sec. 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided under applicable law, including life imprisonment or death.
21. The reference in Section 3(a) to “an appropriate location” for the detention of persons subject to the order includes, in the events which have happened, the detention facility at Guantanamo Bay. A major theme of these appeals consists in the appellants’ contention that if they are extradited there is a real prospect that they will be made subject to Military Order No 1 by a determination of the President under Section 2(a) and thereafter detained indefinitely, it may be at Guantanamo Bay, pursuant to Section 3, and/or put on trial before a military commission pursuant to Section 4. Were that to happen they would suffer violations of their rights under Article 5 of the European Convention on Human Rights (“ECHR”) (no detention save on strict conditions) and Article 6 (the right to a fair trial before an impartial and independent tribunal).
22. The district judge found that given the allegations against the appellants it would be open to the President of the United States to designate them as “enemy combatants”, which in this context is a shorthand for the application of the criterion set out in Section 2(a)(1)(ii) of Military Order No 1. The judge also found that their exposure to Military Order No 1, if that were to happen, would involve violations of their Convention rights …
23. None of these conclusions is challenged before us by the US government, nor, as I understand it, were they controversial in the court below … Each appeal accordingly proceeds on the premise that if subjected to Military Order No 1 following his extradition, the appellant would suffer violations of his Convention rights, notably those guaranteed by Articles 5 (no detention without trial) and 6 (fair trial), and it may be Article 3 (prohibition of inhuman and degrading treatment and torture).
24. Yet in each case the judge found that the appellant’s ECHR rights would not in fact be violated upon his extradition. He did so principally (there were other points, as I shall show) because of the effect, as he found it to be, of Diplomatic Notes issued out of the United States’ Embassy in London.
The Diplomatic Notes
25. In Mr Ahmad’s case Diplomatic Note No 25 was issued on 23 March 2005 … In Mr Aswat’s case Diplomatic Note No 114 was issued on 20 December 2005. In both cases the Notes were before the district judge and considered by him. The terms of Diplomatic Note No 25, which was the first in time, are as follows:
“The Embassy of the United States of America at London, England, presents its compliments to Her Majesty’s Principal Secretary of State for Foreign and Commonwealth Affairs and has the honor to refer to Note No. 100 dated November 15, 2004, requesting the extradition of Babar Ahmad to the United States of America…
Pursuant to Article IV of the Extradition Treaty Between the Government of the United States and the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of the United States hereby assures the Government of the United Kingdom that the United States will neither seek the death penalty against, nor will the death penalty be carried out, against Babar Ahmad upon his extradition to the United States.
The Government of the United States further assures the Government of the United Kingdom that upon extradition to the United States, Babar Ahmad will be prosecuted before a Federal Court in accordance with the full panoply of rights and protections that would otherwise be provided to a defendant facing similar charges.
Pursuant to his extradition, Babar Ahmad will not be prosecuted before a military commission, as specified in the President’s Military Order of November 13, 2001; nor will he be criminally prosecuted in any tribunal or court other than a United States Federal Court; nor will he be treated or designated as an enemy combatant…”
The Note in Mr Aswat’s case did not refer to the death penalty. The offences for which extradition was sought are not so punishable.
26. In his decision of 17 May 2005 in Mr Ahmad’s case the district judge said this:
“I have had to consider the status of that Diplomatic Note. I am satisfied whilst it does not provide any personal protection to this defendant; the Diplomatic Note does bind the American Government, which includes the President of the United States. As such I am satisfied that the risk of an order being made under Military Order No. 1 is almost entirely removed. Although I have received evidence of extraordinary rendition to another State, the Government denies that such action takes place. If such steps do take place I am satisfied that in this case, in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible.”
The judge’s conclusions in Mr Aswat’s case were to the same effect.
The Course of these Proceedings: The Appeal Points Outlined
28. There are four points common to both appeals, which I may describe in barest outline as follows, but must of course explain more fully:
1) There is a substantial risk that if extradited each appellant would face detention and/or trial by military commission under Military Order No 1, and thus suffer violations of his Convention rights.
2) There is a like risk that each appellant would be subjected to what is called “extraordinary rendition”, and thus, again, suffer violations of his Convention rights.
3) There is a like risk that each appellant, even if he were remanded for trial by the ordinary federal civilian courts, would be subjected to what are called “special administrative measures” (“SAMs”) which would also involve violations of his Convention rights. In addition there would on this ground be a bar to extradition by force of s.81(b) of the 2003 Act.
4) Any trial, albeit in the ordinary federal civilian courts, would involve evidence obtained by torture in violation of the appellants’ rights under ECHR Article 6.
Subjection to Military Order No 1 (Point (1) above)
51. On this part of the case the court is invited to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not.
54. The appellants’ case has been put in various ways but may fairly be summarised in three propositions:
i) The Diplomatic Notes do not bind the President (and would not bind any future President) and are “ ultra vires”, or are legally unacceptable undertakings not to apply the general law of the requesting state.
ii) The Diplomatic Notes are drafted in such a way that it would be possible for the United States authorities to apply Military Order No 1 to the appellants after their return, and yet claim that there was no breach of the undertakings in the Notes.
iii) As a matter of fact, the Notes are not to be relied on.
(i) Legal Status of the Diplomatic Notes
55. A good deal of evidence has been deployed by the appellants to support this part of their case … Now, there is plainly a difference between the question whether the Notes are in some sense legally binding on the United States authorities including the President, and the question whether in fact they would be honoured. The first of these questions, being one of law, cannot depend upon any evidence unless the issue is whether the Notes are binding by force of the domestic law of the United States; in which case evidence about that law’s effect would be admissible, because of the common law rule that foreign law is a matter of fact. Evidence is, of course, also receivable as to the conditions of international practice in relation to the giving of assurances such as are contained in the Notes.
56. However as I understand it there is no issue of domestic American law. The United States government does not rely on any rule of domestic law giving binding or enforceable effect to the assurances set out in the Notes. The real question is whether in all the circumstances, against the background of relevant international law and practice, this court should accept the Notes as being in fact effective to refute, for the purposes of the 2003 Act, the claims of potential violation of Convention rights and associated bars to extradition.
57. There is, however, more to say at this stage about the law. First, the proposition that the Notes are in some sense ultra vires is in my judgment misplaced. There is no suggestion that they were issued in defiance of some binding rule of United States law with whose application they are inconsistent. That might have been the case if Military Order No 1 (which, I accept, is part of the corpus of United States law) required the President to designate any foreign national to whom the Section 2(a) criteria applied. But it does not; the President has a discretion so to designate. There is therefore no inconsistency between the terms of the Notes and the terms of the Order. The force of the point is illustrated by an observation made by my Lord Walker J in the course of the argument concerning Mr Ujaama: on Mr Fitzgerald’s own case the fact, demonstrated by the plea agreement, that the Americans were prepared to forego the subjection of Mr Ujaama to military custody (in his case, as he is a United States national, at the North Carolina brig) shows that they do not regard such a course of action as mandatory or inevitable in every case where it might, on the facts, be put into effect.
58. Nor is it, I think, suggested that this ultra vires argument is supported by any notion that the Notes were in some sense unauthorised by the President or the United States government. Nor could it be. The Notes, as I have said, were issued by the United States Embassy in London. The Ambassador “is the mouthpiece of the Head of his home State and its Foreign Minister, for communications to be made to the State to which he is accredited” (Oppenheim’s International Law, Ninth Edition, Vol 1, paragraph 483). Mr Keith in his skeleton argument in Mr Aswat’s case at paragraph 2.18, citing authority of the International Court of Justice (Advisory Opinion as to the Customs Arrangements between Germany and Austria, 5 September 1931: Series A/B 41, p.47), correctly submits that international law recognises the use of Diplomatic Notes as a means of recording binding engagements between States. In the eye of international law such a Note is regarded as binding on the State that issues it. This, and this only, is the sense in which the Notes are indeed “binding”.
59. Next, Mr Fitzgerald would have us disregard the Notes, or at least treat them with considerable circumspection, because of what he says is the effect of the decision of their Lordships’ House in Armah v Government of Ghana and Anor [1968] AC 192 …
60. Mr Fitzgerald principally relies on what was said by Lord Upjohn, but I may first note these observations of Lord Reid at 235G-236B:
“[I]n general it appears to me to be very undesirable that a foreign government should be encouraged to offer not to apply the ordinary law of its country to one of its own subjects if he is returned to that country. There may not be the same objection to the foreign government stating that it does not intend to take certain executive action with regard to the accused person and it might be proper to accept an undertaking on the lines of section 3(2) of the Extradition Act, 1870. But any undertaking or statement of intention is liable to create misunderstanding and perhaps acute difficulties in the event of a change of circumstances.”
The material passage from Lord Upjohn’s speech is at 262G–263E:
“[T]he Divisional Court accepted the undertakings of the Government of Ghana (1) that if tried and acquitted the appellant would not be taken into protective custody and would be free to leave Ghana; (2) that the appellant would be tried under the Criminal Procedure Code and not under the Corrupt Practices (Prevention) Act, 1964. The bona fides of the Government of Ghana and of its Attorney-General are not for one moment in doubt, but I think it is wrong in principle to permit such undertakings to be given or to take them into account. The appellant can surely come to the superior court (where alone, of course, section 10 arises) and say:
‘My liberty is at stake, I am a British subject, judge of the laws of the country to which my return is sought as they stand. It is most unjust to me that to attain their ends the Government should unilaterally be permitted to say that I alone of all the inhabitants am to be freed from those laws which I submit would make it oppressive and unjust to return me.’
So I think that the matter should be judged upon the laws as they stand and it then becomes a matter for the exercise of the discretion of the court under section 10 to consider the relevance of any laws to which the applicant may draw attention and their weight in the balance against other considerations such as the seriousness of the alleged offence, the strength or thinness of the case against the fugitive and all other relevant circumstances. In addition, it was readily conceded that the word ‘undertaking’ is a misnomer; it is no more than an expression of intention. Speaking generally, and not with any special reference to the Government of Ghana, there may be a change of government who may not feel bound by the acts of their predecessor. There may be a genuine difference of opinion as to the proper interpretation of the undertakings. Finally, it might in some circumstances be the duty of a government to depart from its expressed intention in the discharge of its duty in the good governance of the country and its inhabitants as a whole.”
61. In light of this authority Mr Fitzgerald submits that it would be wrong in principle for the court to rely on the Diplomatic Notes as a basis for concluding that Military Order No 1 would not be applied to the appellants. I do not think this is right. First, it is in my view significant that the “undertaking” in Armah was given by counsel in court. No doubt it was given on instructions, but it cannot have carried the weight or authority of a formal Diplomatic Note issued out of the State’s Embassy. As I have shown, State to State assurances, taking the form of such Notes, possess a recognised status in public international law. State to State assurances are commonly given in extradition matters, for example to demonstrate the requesting State’s loyalty to the specialty rule. Moreover such assurances are specifically contemplated on the face of Article IV of the 1972 UK-USA Extradition Treaty (which I have set out) in relation to the death penalty. The Note in Mr Ahmad’s case contained, in terms, Article IV assurances.
62. Secondly, an important theme of the reasoning in Armah consists in their Lordships’ concern that a foreign State might in effect offer to suspend its ordinary law as the price of obtaining a fugitive’s return. No such concern can arise in this case. On the contrary, the Diplomatic Notes contain assurances that the ordinary law – prosecution before the civilian Federal Court “with the full panoply of rights and protections” – will be applied. The position might well be different if the President were obliged by the terms of Military Order No 1 to designate any persons falling within the Section 2(a) criteria. But as I have already said the President has a discretion to designate; and where he does so, he must determine (Section 2(a)(2)) that “it is in the interest of the United States that such individual be subject to this order”. On any view these are special or exceptional measures. The argument which Lord Upjohn puts in the mouth of an appellant to the English court has no place here on the facts. Armah was distinguished both in Launder (No 2) [1998] QB 998 (see per Simon Brown LJ as he then was at 1006G) and in Lodhi (No 1) [2001] EWHC Admin 178 (see per Brooke LJ giving the judgment of the court at paragraph 88) on the ground that in contrast to Armah there was no question of the relevant undertaking being to do other than apply the ordinary law of the requesting State.
(ii) Scope of the Diplomatic Notes
64. This part of the argument depends on the words “[p]ursuant to his extradition” in each of the diplomatic notes. The point is crisply articulated in Mr Fitzgerald’s skeleton argument for Mr Ahmad as follows:
“[T]he Note only provides that ‘pursuant to extradition’ the Appellant would be [not] treated as an enemy combatant. No doubt this wording was carefully chosen. It would be open to the US prosecuting authorities to discontinue the criminal proceedings against the Appellant and then to designate him as an enemy combatant. In these circumstances it would be open to the US to claim that the detention was not ‘pursuant to extradition’ because that process had come to an end with the discontinuance of the criminal proceedings alleged in the request.”
65. The implicit suggestion appears to be (“No doubt this wording was carefully chosen”) that the possibility of such action being taken was in the minds of the American authorities at the time when the Diplomatic Notes were drafted and issued. If so, it is a very serious allegation of bad faith. It amounts to an accusation that the Notes are nothing but a smoke screen to conceal the United States’ true intentions. It is little wonder that Mr Fitzgerald did not pursue the suggestion explicitly. I shall have more to say about the Notes’ reliability under the next head – (iii) – but I should make it clear at once that there is not a sliver of justification, in any of the evidence we have seen, for so grave a charge.
66. I should however acknowledge this assertion made in Mr Fitzgerald’s skeleton argument in Mr Aswat’s case (paragraph 54):
“It is important to recognise that the Appellant’s primary case does not require the Court to determine that the US Government would or might act in bad faith by knowingly disregarding an undertaking binding as a matter of international law. His case is that the US may decide to designate him as an enemy combatant, and try him in a military commission, whilst maintaining the position that such treatment falls outside the terms of Diplomatic Note 114, which is not legally binding in any event.”
67. In argument Mr Fitzgerald submitted that the risk of such a decision would continue even if Military Order No 1 were amended or replaced. In so far as the case sought to be made is not one of bad faith, but merely a suggestion that if the appellants are extradited they may hereafter encounter the fate described because new information becomes available, then as it seems to me it is contradicted by Article XII of the 1972 Treaty which I have set out. It was submitted that Article XII, on its plain terms, governs only detention in the “territory of the requested party” and therefore does not cover detention in Guantanamo or elsewhere in the world. In order to send the detainee to such a destination, however, it would be necessary first to detain the person in question within the territory of the United States. Another submission was that information presented to the President after the extradition as to the risk posed by the Appellants in the view of the FBI or CIA would necessitate the President’s consideration of the application of Military Order No 1 to the Appellants. However by Article XII further action can be taken only in relation to crimes or “matters arising” after the extradition. Absent an accusation of bad faith it is plainly to be presumed that the United States will be loyal to their Treaty obligations. It is to be noted that a Treaty entered into by the United States becomes part of its domestic law upon its coming into effect, without more: see Article VI of the US Constitution. If of course either appellant were accused of an entirely fresh crime or other matter said to have been committed after the extradition, different considerations might arise (see Article XII(2)); but such a contingency cannot form the genesis of any complaint in these proceedings.
(iii) The Diplomatic Notes Reliability
68. But Mr Fitzgerald does not merely submit that the United States authorities might expose the appellants to the rigours of Military Order No 1 while asserting, by reference to the language of the Diplomatic Notes, that the assurances there given are not violated. He submits that the United States might simply breach the assurances in any event. The appellants’ evidence (principally the affidavits of Mr Loflin and Mr Stafford Smith) is presented in such a way as to intertwine this argument with (i) above (relating to the Notes’ legal status). But in my judgment we must address fair and square the submission of fact that the Notes would not be honoured. The issue is closely allied to that which arises on Mr Fitzgerald’s second principal contention, namely that both appellants face a substantial risk of being subjected to what is called “extraordinary rendition”, not least given the district judge’s finding that “in the light of the Undertaking not to invoke Military Order No. 1, the risk of extraordinary rendition is negligible”. However it is convenient to deal with that separately because of the structure of the arguments as they were presented before us.
72. … it is asserted that given his past approach to the duties of his office the President would feel free to disregard the assurances in the Notes, “particularly in the light of any new information or evidence that was provided to him by the FBI or the security services as to the alleged risk posed by [either] Appellant” (Mr Ahmad skeleton, paragraph 3.17).
73. It is also said (but it is really part of the same point) that the President has demonstrated his commitment to the use of military commissions …
74. In short we are asked, as I have already said, to hold that the United States would not honour the Diplomatic Notes given in each case, or at least that there is a substantial risk that they would not. How is this court to provide a conscientious response to such an argument? The starting point, I think, is the statement of Kennedy LJ in Serbeh v Governor of HM Prison Brixton (31 October 2002, CO/2853/2002) at paragraph 40:
“[T]here is (still) a fundamental assumption that the requesting state is acting in good faith.”
The assumption, of course, may be displaced by evidence. We must consider whether it is displaced here.
75. I have already referred to Mr Keith’s submission that the assurances in the Notes were given by a mature democracy. So much goes without saying. But the United States is also a State with which the United Kingdom has entered into five substantial treaties on extradition over a period of more than 150 years. Over this continued and uninterrupted history of extradition relations there is no instance of any assurance given by the United States, as the requesting State in an extradition case, having been dishonoured. In Bermingham & ors [2006] EWHC 200, [2006] 3 AER.239 and Welsh and Thrasher [2006] EWHC 156, [2006] 3 AER.204, decided in this court, Ouseley J and I were much concerned with a similar issue – or perhaps a particular application of the same issue – being called on in effect to decide whether the United States authorities could be relied on to abide by the specialty rule in relation to the prospective extradition of the appellants in those cases. Undertakings had been given on the point. In Thrasher Ouseley J said (paragraph 35):
“First, if there had been a routine disregard of the specialty rule, I would have expected that over the decades of extradition to the US from the UK, and in particular from those countries with which the US enjoys a land frontier, the UK Courts and the Courts of other sending states would have refused extradition in decisions which would be available to us. The 1972 and 2003 Treaties would not have been agreed in the terms on which they were agreed.”
In Bermingham I said (paragraph 142):
“In the present case I consider that the undertaking confirms the position which the United States courts would anyway adopt. They will be satisfied, not least by the terms of this court’s judgment, that the defendants’ extradition is ordered on the precise basis that the accusation they will face at trial will be limited to, and travel no wider than, the case which is essentially formulated in paragraphs 10 and 23 of the Texas indictment and reflected in the charge drafted for the proceedings at Bow Street. And the American courts will be loyal to this expectation: not merely because in general they respect the specialty rule, but because by their own express jurisprudence… it is “essential to determine… whether the surrendering state would regard the prosecution as a breach”… This test is meticulously applied. It means, in short, that the American courts will give effect to the views of the Secretary of State and of this court (as to which there will be no room for doubt) of the requirements of s.95 of the 2003 Act.”
76. I see no reason to doubt that the American authorities would likewise give effect to the views of this court as to the critical importance of the integrity of the Diplomatic Notes. Indeed the case may perhaps be said to be a fortiori: the Notes have the special status of having been issued out of the Embassy. The American authorities will appreciate, not least from the terms of the judgments in this case, that their request for the appellants’ extradition to the United States has been acceded to expressly on the faith of the Notes, read and interpreted as this court reads and interprets them. Acts of the US executive such as have attracted the kind of criticisms described and levelled by Mr Stafford Smith and Mr Loflin, being, however, acts touching only the internal affairs of the United States, cannot in my judgment begin to constitute a premise from which this court should conclude that the Diplomatic Notes will not be fully honoured.
77. This view is lent some support by the circumstances of a case to which both Mr Keith and Mr Hardy referred. Mr Al-Moayad, a Yemeni national, was arrested in Frankfurt on 10 January 2003, a warrant having been issued on 5 January 2003 by the United States District Court for the Eastern District of New York. Mr Al-Moayad was wanted for having, among other things, supplied money and equipment to terrorist groups including Al-Qaida. The United States requested his extradition and there were extradition proceedings before the Higher Regional Court at Frankfurt. What was referred to as a “verbal note” was issued by the American Embassy providing an assurance that if he were returned Mr Al-Moayad would not be prosecuted before a military tribunal pursuant to Military Order No 1. The Frankfurt court allowed the extradition (I use this expression since, unsurprisingly of course, there is no exact fit between the procedural terminology here and in the German courts). Mr Al-Moayad brought a constitutional complaint before the Federal Constitutional Court. We have an English language text of the judgment downloaded from the internet, bearing the serial number 2 BvR 1506/03. Various points were taken with which we need not be concerned. The relevant finding is at paragraph 76:
“… [D]ecisive consideration must be given to the fact that the United States precluded the possible application of the Presidential Military Order of 13 November 2001 by their assurance of 22 May 2003. Thus, the United States have entered into the obligation, which is binding under international law, neither to bring the complainant before an extraordinary court after his extradition nor to apply the procedural law that is provided in the Order of 13 November 2001 nor to take the complainant to an internment camp. There are no indications to suggest that the United States would, upon the complainant’s extradition, not comply with the assurance given.”
78. So Mr Al-Moayad was extradited to the United States. There is a postscript. We have a copy of a piece in the New York Times for 29 July 2005. It shows that Mr Al- Moayad was, indeed, not subjected to Military Order No 1. He was tried before a federal court in Brooklyn. After a five week trial he was convicted of conspiracy to support Al-Qaida and other offences and sentenced to the maximum penalty of 75 years imprisonment. Condign punishment: but no subjection to Military Order No 1.
80. On this part of the case I conclude for all the reasons I have given that the district judge was right to place confidence in the Diplomatic Notes.
Conclusion
101. For all the reasons I have given I would dismiss these appeals. Taking stock of the whole case, I would make these final observations. There are I think two factors which constitute important, and justified, obstacles to the appellants’ claims. They are obstacles which might arise in other cases. The first is the starting-point: Kennedy LJ’s observation in Serbeh that “there is (still) a fundamental assumption that the requesting state is acting in good faith”. This is a premise of effective relations between sovereign States. As I have said the assumption may be contradicted by evidence; and it is the court’s plain duty to consider such evidence (where it is presented) on a statutory appeal under the 2003 Act. But where the requesting State is one in which the United Kingdom has for many years reposed the confidence not only of general good relations, but also of successive bilateral treaties consistently honoured, the evidence required to displace good faith must possess special force. The second obstacle is linked to the first. It is a general rule of the common law that the graver the allegation, the stronger must be the evidence to prove it. In this case it has been submitted that the United States will violate, at least may violate, its undertakings given to the United Kingdom. That would require proof of a quality entirely lacking here.
102. This court acts on the faith that the United States will be true to the spirit and the letter of the Diplomatic Notes and the obligations of the 1972 Treaty. It goes without saying that they will be true to the US Constitution. The terms of this judgment express the legal expectations and understanding of the United Kingdom court. I apprehend that these will be well fulfilled and honoured when the appellants are extradited. 
United Kingdom, England and Wales High Court of Justice (Queen’s Bench Division), Ahmad and Aswat case, Judgment, 30 November 2006, §§ 1, 4–5, 7–9, 20–26, 28, 51, 54–62, 64–68, 72–78, 80 and 101–102.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2007, in the Al-Jedda case, the UK House of Lords were called upon to decide the appeal of Mr Al-Jedda, a national both of the United Kingdom and Iraq, against his detention by UK forces in Iraq.
In judgments in 2005 and 2006, respectively, the England and Wales High Court of Justice (R. (on the application of Al-Jedda) v. Secretary of State for Defence, [2005] EWHC 1809 (Admin), Judgment of 12 August 2005) and the England and Wales Court of Appeal (R. (on the application of Al-Jedda) v. Secretary of State for Defence, [2006] EWCA Civ 327, Judgment of 29 March 2006) had dismissed the claims brought by Mr Al-Jedda.
The issues before the House of Lords were, first:
“whether, by reason of the provisions of UNSCR [UN Security Council Resolution] 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the ECHR”, 
United Kingdom, House of Lords, Al-Jedda case, Judgment, 12 December 2007, § 3.
second:
whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1), 
United Kingdom, House of Lords, Al-Jedda case, Judgment, 12 December 2007, § 3.
and third:
whether English common law or Iraqi law applies to the appellant’s detention and, if the former, whether there is any legal basis for his detention. 
United Kingdom, House of Lords, Al-Jedda case, Judgment, 12 December 2007, § 4.
The first issue arose only before the House of Lords.
The House of Lords unanimously dismissed the claimant’s appeal, holding that the appellant’s detention was attributable to the United Kingdom and not the United Nations and thus not outside the scope of the 1950 European Convention on Human Rights, but further holding that, in view of Articles 25 and 103 of the UN Charter and of UN Security Council Resolution 1546 and successive resolutions, the appellant’s rights under Article 5(1) of the 1950 European Convention on Human Rights were not violated, and that the third issue, dealing with torts, fell under Iraqi law. With regard to the first issue, Lord Rodger entered a dissenting opinion, and Lord Brown was undecided. Lord Bingham gave the leading opinion:
1. Since October 2004 the appellant, who is a national of both this country and Iraq, has been held in custody by British troops at detention facilities in Iraq. He complains that his detention infringes his rights under article 5(1) of the European Convention on Human Rights, a Convention right protected by the Human Rights Act 1998, and also founds a good claim in this country under the English common law. These claims were rejected by the Queen’s Bench Divisional Court (Moses and Richards JJ: [2005] EWHC 1809 (Admin), HRLR 1355) and also by the Court of Appeal (Brooke, May and Rix LJJ: [2006] EWCA Civ 327, [2007] QB 621. Both courts below delivered lengthy and careful judgments, commensurate with the importance and difficulty of the issues then raised, but a new issue has (by agreement) been raised and argued before the House, as explained below.
2. The appellant has not been charged with any offence, and no charge or trial is in prospect. He was arrested and has since been detained on the ground that his internment is necessary for imperative reasons of security in Iraq. He was suspected of being a member of a terrorist group involved in weapons smuggling and explosive attacks in Iraq. He was believed by the British authorities to have been personally responsible for recruiting terrorists outside Iraq with a view to the commission of atrocities there; for facilitating the travel into Iraq of an identified terrorist explosives expert; for conspiring with that explosives expert to conduct attacks with improvised explosive devices against coalition forces in the areas around Fallujah and Baghdad; and for conspiring with the explosives expert and members of an Islamist terrorist cell in the Gulf to smuggle high tech detonation equipment into Iraq for use in attacks against coalition forces. These allegations are roundly denied by the appellant, and they have not been tested in any proceedings. Nor is their correctness an issue in these proceedings. The House must therefore resolve the legal issues falling for decision on the assumption that the allegations are true, without forming any judgment whether they are or not.
3. In the courts below the appellant’s Human Rights Act argument was directed to a single question, turning essentially on the relationship between article 5(1) of the European Convention on the one hand and the United Nations Charter, and certain resolutions of the UN Security Council, on the other. More specifically, this question is agreed to be whether the provisions of article 5(1) of the Convention are qualified by the legal regime established pursuant to United Nations Security Council Resolution (“UNSCR”) 1546 (and subsequent resolutions) by reason of the operation of articles 25 and 103 of the UN Charter, such that the detention of the appellant has not been in violation of article 5(1). This is the issue which the courts below decided against the appellant, and it remains an issue dividing the parties. But it is now the second issue. For the Secretary of State, prompted (it seems) by the admissibility decision of the Grand Chamber of the European Court of Human Rights in Behrami v France, Saramati v France, Germany and Norway (Application Nos 71412/01 and 78166/01 (unreported), 2 May 2007) has raised an entirely new issue, not ventilated in the courts below, directed to the attributability in international law of the conduct of which the appellant complains. As agreed, the issue is “whether, by reason of the provisions of UNSCR 1511 (2003) and/or UNSCR 1546 (2004), and/or UNSCR 1637 (2005) and/or UNSCR 1723 (2006) and/or (so far as it may be relevant) UNSCR 1483 (2003), the detention of the appellant is attributable to the United Nations and thus outside the scope of the ECHR”. The Secretary of State, relying strongly on Behrami and Saramati, contends that the appellant’s detention is attributable to the UN, a contention which (if correct) defeats his claim under article 5. This has been treated as the first issue in this appeal.
4. What is now the third issue can be more simply expressed: whether English common law or Iraqi law applies to the appellant’s detention and, if the former, whether there is any legal basis for his detention. The appellant would wish to contend that he has a good claim even if Iraqi law is applicable, but this question was not litigated below, was not agreed as an issue, has not been the subject of expert evidence of Iraqi law and has not been considered by the House.
The first issue
5. It was common ground between the parties that the governing principle is that expressed by the International Law Commission in article 5 of its draft articles on the Responsibility of International Organizations (adopted in May 2004 and cited by the European Court in Behrami and Saramati , para 30):
Conduct of organs or agents placed at the disposal of an international organization by a state or another international organization
The conduct of an organ of a state or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.”
The European Court also quoted (para 31) from paras 1 and 6–7 of the ILC’s [International Law Commission’s] authoritative commentary on this article (General Assembly Official Records 59th Session, Supp No 10 (A/59/10)):
“1. When an organ of a state is placed at the disposal of an international organization, the organ may be fully seconded to that organization. In this case the organ’s conduct would clearly be attributable only to the receiving organization … Article 5 deals with the different situation in which the lent organ or agent still acts to a certain extent as organ of the lending state or as organ or agent of the lending organization. This occurs for instance in the case of military contingents that a state placed at the disposal of the [UN] for a peacekeeping operation, since the state retains disciplinary powers and criminal jurisdiction over the members of the national contingent. In this situation the problem arises whether a specific conduct of the lent organ or agent has to be attributed to the receiving organization or to the lending state or organization …
6. Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing state retains over disciplinary matters and criminal affairs. This may have consequences with regard to attribution of conduct …
Attribution of conduct to the contributing state is clearly linked with the retention of some powers by that state over its national contingent and thus on the control that the state possesses in the relevant respect.
7. As has been held by several scholars, when an organ or agent is placed at the disposal of an international organization, the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.”
6. Invited by the ILC to comment on the attribution of the conduct of peacekeeping forces to the UN or to contributing states, the UN Secretariat responded (A/CN.4/545, 25 June 2004, pp 17–18):
“The question of attribution of the conduct of a peacekeeping force to the United Nations or to contributing states is determined by the legal status of the force, the agreements between the United Nations and contributing states and their opposability to third states.
A United Nations peacekeeping force established by the Security Council or the General Assembly is a subsidiary organ of the United Nations. Members of the military personnel placed by member states under United Nations command although remaining in their national service are, for the duration of their assignment to the force, considered international personnel under the authority of the United Nations and subject to the instructions of the force commander. The functions of the force are exclusively international and members of the force are bound to discharge their functions with the interest of the United Nations only in view. The peacekeeping operation as a whole is subject to the executive direction and control of the Secretary-General, under the overall direction of the Security Council or the General Assembly as the case may be.
As a subsidiary organ of the United Nations, an act of a peacekeeping force is, in principle, imputable to the Organization, and if committed in violation of an international obligation entails the international responsibility of the Organization and its liability in compensation. The fact that any such act may have been performed by members of a national military contingent forming part of the peacekeeping operation does not affect the international responsibility of the United Nations vis-à-vis third states or individuals.
Agreements concluded between the United Nations and states contributing troops to the Organization contain a standard clause on third-party liability delineating the respective responsibilities of the Organization and contributing states for loss, damage, injury or death caused by the personnel or equipment of the contributing state. Article 9 of the Model Memorandum of Understanding between the United Nations and [participating state] contributing resources to [The United Nations Peacekeeping Operation] provides in this regard:
‘The United Nations will be responsible for dealing with any claims by third parties where the loss of or damage to their property, or death or personal injury, was caused by the personnel or equipment provided by the Government in the performance of services or any other activity or operation under this memorandum. However if the loss, damage, death or injury arose from gross negligence or wilful misconduct of the personnel provided by the Government, the Government will be liable for such claims’
(A/51/967.annex).
While the agreements between the United Nations and contributing states divide the responsibility in the relationship between them, they are not opposable to third states. Vis-à-vis third states and individuals, therefore, where the international responsibility of the Organization is engaged, liability in compensation is, in the first place, entailed for the United Nations, which may then revert to the contributing state concerned and seek recovery on the basis of the agreement between them.
The principle of attribution of the conduct of a peacekeeping force to the United Nations is premised on the assumption that the operation in question is conducted under United Nations command and control, and thus has the legal status of a United Nations subsidiary organ. In authorized chapter VII operations conducted under national command and control, the conduct of the operation is imputable to the state or states conducting the operation. In joint operations, namely, those conducted by a United Nations peacekeeping operation and an operation conducted under national or regional command and control, international responsibility lies where effective command and control is vested and practically exercised (see paras 17–18 of the Secretary-General’s report A/51/389).”
The cited paragraphs in the Secretary-General’s report A/51/389 (20 September 1996) read:
“17. The international responsibility of the United Nations for combat-related activities of the United Nations forces is premised on the assumption that the operation in question is under the exclusive command and control of the United Nations. Where a Chapter VII-authorized operation is conducted under national command and control, international responsibility for the activities of the force is vested in the state or states conducting the operation. The determination of responsibility becomes particularly difficult, however, in cases where a state or states provide the United Nations with forces in support of a United Nations operation but not necessarily as an integral part thereof, and where operational command and control is unified or coordinated. This was the case in Somalia where the Quick Reaction Force and the US Rangers were provided in support of the United Nations Operation in Somalia (UNOSOM II), and this was also the case in the former Yugoslavia where the Rapid Reaction Force was provided in support of the United Nations Protection Force (UNPROFOR).
18. In joint operations, international responsibility for the conduct of the troops lies where operational command and control is vested according to the arrangements establishing the modalities of cooperation between the state or states providing the troops and the United Nations. In the absence of formal arrangements between the United Nations and the state or states providing troops, responsibility would be determined in each and every case according to the degree of effective control exercised by either party in the conduct of the operation.”
The UN Secretariat was further invited by the ILC to address the following question (see A/CN.4/556, 12 May 2005, p4):
“In the event that a certain conduct, which a member state takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that state and of that organization, would the organization also be regarded as responsible under international law? Would the answer be the same if the state’s wrongful conduct was not requested, but only authorized by the organization?
The Secretariat’s answer was (ibid, p 46):
“As for the third question raised by the commission, we are not aware of any situation where the Organization was held jointly or residually responsible for an unlawful act by a state in the conduct of an activity or operation carried out at the request of the Organization or under its authorization. In the practice of the Organization, however, a measure of accountability was nonetheless introduced in the relationship between the Security Council and member states conducting an operation under Security Council authorization, in the form of periodic reports to the Council on the conduct of the operation. While the submission of these reports provides the Council with an important ‘oversight tool’, the Council itself or the United Nations as a whole cannot be held responsible for an unlawful act by the state conducting the operation, for the ultimate test of responsibility remains ‘effective command and control’.”
7. It is necessary to identify the main events occurring between March 2003 and the present before considering the application of these principles to the present case.
8. On 20 March 2003 coalition forces invaded Iraq. It is, as Brooke LJ observed in paragraph 15 of his judgment, “well known that the Coalition Forces invaded Iraq in the spring of 2003 after the abandonment of the efforts to obtain a further Security Council resolution which would give immediate backing to what the coalition states wished to do if Saddam Hussein did not comply with the Council’s demands”. On 16 April 2003 General Franks, a US general, issued a “freedom message” in which he announced the creation of the Coalition Provisional Authority (“the CPA”), a civilian administration which would exercise powers of government in Iraq for the time being. Major combat operations were declared to be complete on 1 May 2003, although hostilities did not end on that date in all parts of the country. As from that date the US and the UK became occupying powers, within the meaning of Section III of the Hague Regulations on the Laws and Customs of War on land (1907) and the Fourth Geneva Convention on the Protection of Civilian Persons in Time of War (1949) in the areas which they respectively occupied.
9. On 8 May 2003 the permanent representatives of the UK and the US at the UN addressed a joint letter to the President of the Security Council. In it they said that the states participating in the coalition would strictly abide by their obligations under international law, including those relating to the essential humanitarian needs of the Iraqi people; that the US, the UK and their coalition partners, acting under existing command and control arrangements through the commander of coalition forces, had created the CPA; that the US, the UK and their coalition partners, working through the CPA, should among other things provide for security in and for the provisional administration of Iraq; that they would facilitate the efforts of the Iraqi people to take the first steps towards forming a representative government based on the rule of law; and that the UN had a vital role to play in providing humanitarian relief, in supporting the reconstruction of Iraq and in helping in the formation of an Iraqi interim authority. On 13 May 2003 the US Secretary for Defence, Mr Donald Rumsfeld, appointed Mr Paul Bremer to be administrator of the CPA, which was divided into regions, that in the south being under British control. The CPA promptly set about the business of government. By CPA Regulation No 1, dated 16 May 2003, the CPA assumed “all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions, including Resolution 1483 (2003), and the laws and usages of war”. Iraqi laws, unless suspended or replaced by the CPA, were to continue to apply insofar as they did not prevent the CPA from exercising its rights and fulfilling its obligations, or conflict with regulations or orders issued by the CPA. CPA Memorandum No 3 (CPA/MEM/27 June 2004/03) addressed issues of criminal procedure. In section 6(4) it referred to standards “in accordance with…the Fourth Geneva Convention”, which were to apply to all persons who were detained by coalition forces when necessary for imperative reasons of security, providing a right of appeal by an internee to a competent body.
10. Resolution 1483 was adopted by the Security Council on 22 May 2003. The resolution opened, as is usual, with a number of recitals, one of which referred to the US and UK permanent representatives’ letter of 8 May “recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (‘the Authority’)”. Then, acting under Chapter VII of the UN Charter, the Council called on the Authority, consistently with the UN Charter and other relevant international law, to promote the welfare of the Iraqi people and work towards the restoration of conditions of stability and security. The Council called upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907. The Council further requested the Secretary General to appoint a Special Representative in Iraq: he was to report regularly to the Council on his activities under the resolution, which were to co-ordinate the activities of the UN and other international agencies engaged in post-conflict processes and humanitarian assistance, in a number of specified ways including the protection of human rights. The Council decided, as it did consistently thereafter, to remain seised of the matter. In July 2003 an Iraqi Governing Council (“IGC”) was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq.
11. Pursuant to UNSCR 1483 the Secretary General established a United Nations Assistance Mission for Iraq (UNAMI), a step welcomed by the Council in Resolution 1500 of 14 August 2003. This development was foreshadowed by the Secretary General in a report dated 17 July, in which he announced the appointment of Mr de Mello as his Special Representative and outlined the tasks which UNAMI was to undertake.
12. On 16 October 2003 the Security Council adopted Resolution 1511. Acting under Chapter VII of the UN Charter, the Council looked forward to the assumption of governmental powers by the people of Iraq and resolved that the UN, through the Secretary General, his Special Representative and UNAMI “should strengthen its vital role in Iraq, including by providing humanitarian relief, promoting the economic reconstruction of and conditions for sustainable development in Iraq, and advancing efforts to restore and establish national and local institutions for representative government”. The Secretary General was to report to the Security Council on his responsibilities under the resolution. In a new departure, the Council determined
“that the provision of security and stability is essential to the successful completion of the political process … and to the ability of the United Nations to contribute effectively to that process and the implementation of resolution 1483 (2003), and authorizes a multinational force [“MNF”] under unified command to take all necessary measures to contribute to the maintenance of security and stability in Iraq, including for the purpose of ensuring necessary conditions for the implementation of the timetable and programme as well as to contribute to the security of [UNAMI], the Governing Council of Iraq and other institutions of the Iraqi interim administration, and key humanitarian and economic infrastructure”.
Member states were urged to contribute assistance under this UN mandate, including military forces, to the multinational force referred to. The US, on behalf of the multinational force, was requested to report to the Council on the efforts and progress of this force.
13. On 8 March 2004 the IGC promulgated a transitional administrative law, paving the way towards an interim and then an elected Iraqi government. Reporting to the Security Council on 16 April 2004, the US permanent representative said that the multinational force had conducted “the full spectrum of military operations, which range from the provision of humanitarian assistance, civil affairs and relief and reconstruction activities to the detention of those who are threats to security …” In a submission made by the CPA to the UN High Commissioner for Human Rights on 28 May 2004 it was stated that the US and UK military forces retained legal responsibility for the prisoners of war and detainees whom they respectively held in custody. This was a matter of some significance, since by this time the abuses perpetrated by US military personnel at the Abu Ghraib prison had become public knowledge.
14. Chronologically, the next events to be noted are two letters, each dated 5 June 2004 and written to the President of the Security Council by the Prime Minister of the Interim Government of Iraq (Dr Allawi) and the US Secretary of State (Mr Powell). Dr Allawi looked forward to the establishment of a free and democratic Iraq, but stressed that security and stability continued to be essential to the country’s political transition, and asked for the support of the Security Council and the international community until Iraq could provide its own security. He sought a new resolution on the multinational force mandate to contribute to maintaining security in Iraq, “including through the tasks and arrangements set out in the letter” from Mr Powell to the President of the Council. Mr Powell in his letter recognised the request of Dr Allawi’s government for the continued presence of the multinational force in Iraq and confirmed that the force, under unified command, was prepared to continue to contribute to the maintenance of security in Iraq. He continued, using language plainly drawn from article 78 of the Fourth Geneva Convention (although the period of occupation was about to end):
“Under the agreed arrangement, the MNF stands ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection.
These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraq’s political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraq’s security. A further objective will be to train and equip Iraqi security forces that will increasingly take responsibility for maintaining Iraq’s security. The MNF also stands ready as needed to participate in the provision of humanitarian assistance, civil affairs support, and relief and reconstruction assistance requested by the Iraqi Interim Government and in line with previous Security Council Resolutions.”
He regarded the existing framework governing responsibility for exercise of jurisdiction by contributing states over their military personnel as sufficient, and assured the President that “the forces that make up the MNF are and will remain committed at all times to act consistently with their obligations under the law of armed conflict, including the Geneva Conventions”.
15. These letters were the immediate prelude to Resolution 1546, adopted by the Security Council on 8 June 2004. Little turns on the opening recitals, save that the Council welcomed the assurances in Mr Powell’s letter and determined that the situation in Iraq continued to constitute a threat to international peace and security. Acting under Chapter VII of the UN Charter, the Council described the role of UNAMI, reaffirmed its authorisation under UNSCR 1511 (2003) for the multinational force under unified command, having regard to the annexed letters of Dr Allawi and Mr Powell, and decided
“that the multinational force shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in paragraph seven above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities; …”
The Council further decided that the mandate for the multinational force should be reviewed at the request of the Government of Iraq or 12 months from the date of the resolution and that the mandate should end on completion of the political process described earlier in the resolution, but the Council undertook to terminate the mandate earlier if requested by the Government of Iraq. The US, on behalf of the multinational force, was again requested to report at stated intervals.
16. On 27 June 2004 the CPA issued a revised order giving members of the multinational force and the CPA general immunity from Iraqi process, and providing that they should be subject to the exclusive jurisdiction of their sending states. On the following day power was formally transferred to the Iraqi interim government, the CPA was dissolved and the occupation of Iraq by coalition forces came to an end. Such was the position when the appellant was taken into British custody in October 2004.
17. After this date there were two further resolutions of the Security Council (Resolution 1637 of 8 November 2005 and Resolution 1723 of 28 November 2006), to which, however, little significance was, rightly, attached. Their effect was to maintain the status quo. The appellant drew attention to reports made by the Secretary General to the Security Council which expressed concern about persons detained by units of the multinational force in a manner inconsistent, it was said, with any suggestion that this was, in international law, the responsibility of the UN. Thus, for instance, on 7 June 2005 (S/2005/373, para 72) the Secretary General reported that 6000 detainees were in the custody of the multinational force and despite the release of some detainees numbers continued to grow. He commented: “Prolonged detention without access to lawyers and courts is prohibited under international law, including during states of emergency”. Such observations were echoed in reports by UNAMI which, in its report on the period 1 July-31 August 2005, para 12, expressed concern about the high number of persons detained, observing that “Internees should enjoy all the protections envisaged in all the rights guaranteed by international human rights conventions”. In its next report (1 September–31 October 2005) it repeated this expression of concern (para 6), and advised “There is an urgent need to provide [a] remedy to lengthy internment for reasons of security without adequate judicial oversight”. The appellant pointed out that, according to an answer given by the armed forces minister in the House of Commons on 10 November 2004, UK forces in Iraq were operating under UNSCR 1546 and were not engaged on UN operations: Hansard (HC Debates), 10 November 2004, col 720W. A similar view, it was suggested, was taken by the Working Group of the UN’s Human Rights Council (A/HRC/4/40/Add.1) which considered the position of Mr Tariq Aziz and, in paragraph 25 of its opinion on the case, stated:
“The Working Group concludes that until 1 July 2004, Mr Tariq Aziz had been detained under the sole responsibility of the Coalition members as occupying powers or, to be more precise, under the responsibility of the United States Government. Since then and as the Iraqi Criminal Tribunal is a court of the sovereign State of Iraq, the pre-trial detention of a person charged before the tribunal is within the responsibility of Iraq. In the light of the fact that Mr Aziz is in the physical custody of the United States authorities, any possible conclusion as to the arbitrary nature of his deprivation of liberty may involve the international responsibility of the United States Government.”
18. As already indicated, the Secretary of State founds his non-attributability argument on the judgment of the European Court, sitting as a Grand Chamber, in Behrami and Saramati, which related to events in Kosovo. The case concerned Resolution 1244, adopted by the Security Council on 10 June 1999. In the recitals to the resolution, the Council welcomed the statement of principles adopted to resolve the Kosovo crisis on 6 May 1999, which formed annex 1 to the resolution, and welcomed also the acceptance by the Federal Republic of Yugoslavia of the first nine points in a statement of principles which formed annex 2 to the resolution. Annex 1 provided, among other things, for the “Deployment in Kosovo of effective international civil and security presences, endorsed and adopted by the United Nations, capable of guaranteeing the achievement of the common objectives.” Annex 2 provided for the “Deployment in Kosovo under United Nations auspices of effective international civil and security presences, acting as may be decided under Chapter VII of the Charter, capable of guaranteeing the achievement of common objectives”. The international security presence with substantial NATO participation was to be deployed under unified command and control. The international civil presence was to include an interim administration. Having determined that the situation in the region continued to constitute a threat to international peace and security, and acting under Chapter VII of the UN Charter, the Council determined on “the deployment in Kosovo, under United Nations auspices, of international civil and security presences …” A Special Representative appointed by the Secretary General was to control the implementation of the international civil presence and coordinate its activities with those of the international security presence. Member states and relevant international organisations were authorised to establish the international security presence whose responsibilities were to include, among other things, supervising de-mining until the international civil presence could, as appropriate, take over responsibility for this task. The responsibilities of the international civil presence were to include a wide range of tasks of a civilian administrative nature. Both these presences were to continue for an initial period of twelve months, and thereafter unless the Security Council decided otherwise. Both presences were duly established, the international security presence being known as KFOR and the international civil presence as UNMIK.
19. The applicants’ claims in Strasbourg were not the same. The Behramis complained of death and injury caused to two children by the explosion of an undetonated cluster bomb unit, previously dropped by NATO. They blamed KFOR for failing to clear these dangerous mines. Mr Saramati complained of his extra-judicial detention by officers acting on the orders of KFOR between 13 July 2001 and 26 January 2002.
20. The Grand Chamber gave a lengthy judgment, rehearsing various articles of the UN Charter to which I refer below in the context of the second issue, and citing the ILC article and commentary referred to at para 5 above. Reference was made (para 36) to a Military Technical Agreement made between KFOR and the governments of Yugoslavia and Serbia providing for the withdrawal of Yugoslav forces and the deployment in Kosovo “under United Nations auspices of effective international civil and security presences”. UNSCR 1244 (1999) was quoted at some length. The court noted (para 69) that the Yugoslav Government did not control Kosovo, which was under the effective control (para 70) of the international presences which exercised the public powers normally exercised by that government. The court considered (para 71) that the question raised by the cases was less whether the respondent states had exercised extra-territorial jurisdiction in Kosovo but, far more centrally, whether the court was competent to examine under the Convention those states’ contribution to the civil and security presences which did exercise the relevant control of Kosovo.
21. The court summarised (paras 73–120) the submissions of the applicants, the respondent states, seven third party states and the UN. In its own assessment it held that the supervision of de-mining at the relevant time fell within UNMIK’s mandate and that for issuing detention orders within the mandate of KFOR (paras 123–127). In considering whether the inaction of UNMIK and the action of KFOR could be attributed to the UN, the court held (para 129) that the UN had in Resolution 1244 (1999) “delegated” powers to establish international security and civil presences, using “delegate” (as it had explained in para 43) to refer to the empowering by the Security Council of another entity to exercise its function as opposed to “authorising” an entity to carry out functions which it could not itself perform. It considered that the detention of Mr Saramati was in principle attributable to the UN (para 141). This was because (paras 133–134) the UN had retained ultimate authority and control and had delegated operational command only. This was borne out (para 134) by the facts that Chapter VII allowed the Security Council to delegate, the relevant power was a delegable power, the delegation was prior and explicit in Resolution 1244, the extent of the delegation was defined, and the leadership of the security and civil presences were required to report to the Security Council (as was the Secretary General). Thus (para 135) under Resolution 1244 the Security Council was to retain ultimate authority and control over the security mission and it delegated to NATO the power to establish KFOR. Since UNMIK was a subsidiary organ of the UN created under Chapter VII of the UN Charter its inaction was in principle attributable to the UN (paras 129, 142–143). Dealing finally with its competence ratione personae, the court said (para 149):
“In the present case, chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.”
The court accordingly concluded (para 151) that, since UNMIK was a subsidiary organ of the UN created under Chapter VII and KFOR was exercising powers lawfully delegated under Chapter VII by the Security Council, their actions were directly attributable to the UN, an organisation of universal jurisdiction fulfilling its imperative collective security objective. The applicants’ complaints were accordingly incompatible ratione personae with the provisions of the Convention.
22. Against the factual background described above a number of questions must be asked in the present case. Were UK forces placed at the disposal of the UN? Did the UN exercise effective control over the conduct of UK forces? Is the specific conduct of the UK forces in detaining the appellant to be attributed to the UN rather than the UK? Did the UN have effective command and control over the conduct of UK forces when they detained the appellant? Were the UK forces part of a UN peacekeeping force in Iraq? In my opinion the answer to all these questions is in the negative.
23. The UN did not dispatch the coalition forces to Iraq. The CPA was established by the coalition states, notably the US, not the UN. When the coalition states became occupying powers in Iraq they had no UN mandate. Thus when the case of Mr Mousa reached the House as one of those considered in R(Al-Skeini and others) v Secretary of State for Defence) (The Redress Trust intervening) [2007] UKHL 26, [2007] 3 WLR 33 the Secretary of State accepted that the UK was liable under the European Convention for any ill-treatment Mr Mousa suffered, while unsuccessfully denying liability under the Human Rights Act 1998. It has not, to my knowledge, been suggested that the treatment of detainees at Abu Ghraib was attributable to the UN rather than the US. Following UNSCR 1483 in May 2003 the role of the UN was a limited one focused on humanitarian relief and reconstruction, a role strengthened but not fundamentally altered by UNSCR 1511 in October 2003. By UNSCR 1511, and again by UNSCR 1546 in June 2004, the UN gave the multinational force express authority to take steps to promote security and stability in Iraq, but (adopting the distinction formulated by the European Court in para 43 of its judgment in Behrami and Saramati) the Security Council was not delegating its power by empowering the UK to exercise its function but was authorising the UK to carry out functions it could not perform itself. At no time did the US or the UK disclaim responsibility for the conduct of their forces or the UN accept it. It cannot realistically be said that US and UK forces were under the effective command and control of the UN, or that UK forces were under such command and control when they detained the appellant.
24. The analogy with the situation in Kosovo breaks down, in my opinion, at almost every point. The international security and civil presences in Kosovo were established at the express behest of the UN and operated under its auspices, with UNMIK a subsidiary organ of the UN. The multinational force in Iraq was not established at the behest of the UN, was not mandated to operate under UN auspices and was not a subsidiary organ of the UN. There was no delegation of UN power in Iraq. It is quite true that duties to report were imposed in Iraq as in Kosovo. But the UN’s proper concern for the protection of human rights and observance of humanitarian law called for no less, and it is one thing to receive reports, another to exercise effective command and control. It does not seem to me significant that in each case the UN reserved power to revoke its authority, since it could clearly do so whether or not it reserved power to do so.
25. I would resolve this first issue in favour of the appellant and against the Secretary of State.
The second issue
26. As already indicated, this issue turns on the relationship between article 5(1) of the European Convention and article 103 of the UN Charter. The central questions to be resolved are whether, on the facts of this case, the UK became subject to an obligation (within the meaning of article 103) to detain the appellant and, if so, whether and to what extent such obligation displaced or qualified the appellant’s rights under article 5(1).
27. Article 5(1) protects one of the rights and freedoms which state parties to the European Convention have bound themselves to secure to everyone within their jurisdiction. It has been recognised as a right of paramount importance. It is one to which, by virtue of the Human Rights Act 1998, UK courts must give effect. Its terms are familiar: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: …” There follows a list of situations in which a person may, in accordance with a procedure prescribed by law, be deprived of his liberty. It is unnecessary to recite the details of these situations, since none of them is said to apply to the appellant. In the absence of some exonerating condition, the detention of the appellant would plainly infringe his right under article 5(1).
28. The Charter of the United Nations was signed in June 1945 as the Second World War, with its horrific consequences in many parts of the world, was drawing to a close. It is necessary to review its terms in a little detail. In the preamble the parties expressed their determination to save succeeding generations from the scourge of war and to reaffirm faith in fundamental human rights. Its objects, expressed in article 1, were (among others) to maintain international peace and security and, to that end, to take effective collective measures for the prevention and removal of threats to the peace; and to promote and encourage respect for human rights. Member states bound themselves (article 2) to fulfil in good faith the obligations assumed by them in accordance with the Charter, and to give the UN every assistance in any action it might take in accordance with the Charter. By article 24 the Security Council has primary responsibility for the maintenance of peace and security and acts on behalf of member states in discharging that responsibility. Member states agree (article 25) to accept and carry out the decisions of the Security Council in accordance with the Charter.
29. Chapter VII governs “Action with respect to threats to the peace, breaches of the peace, and acts of aggression”. It opens (article 39) by providing that the Security Council shall determine the existence of any threat to the peace, breach of the peace or act of aggression and decide what measures should be taken in accordance with articles 41 and 42 to maintain or restore international peace and security. Article 41 is directed to measures not involving the use of armed force. More pertinently, article 42 empowers the Security Council, if it considers that article 41 powers were or would be inadequate, to take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. By article 43, member states undertake, in order to contribute to the maintenance of international peace and security, to make available to the Security Council on its call and in accordance with a special agreement or agreements, armed forces, assistance and facilities necessary for the purpose of maintaining international peace and security. Such agreements were to govern the number and types of forces, including their location, readiness and facilities and were to be negotiated as soon as possible on the initiative of the Security Council. No such agreements have, in practice, ever been made, and article 43 is a dead letter.
30. It remains to take note of article 103, a miscellaneous provision contained in Chapter XVI. It provides:
“In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
This provision lies at the heart of the controversy between the parties. For while the Secretary of State contends that the Charter, and UNSCRs 1511 (2003), 1546 (2004), 1637 (2005) and 1723 (2006), impose an obligation on the UK to detain the appellant which prevails over the appellant’s conflicting right under article 5(1) of the European Convention, the appellant insists that the UNSCRs referred to, read in the light of the Charter, at most authorise the UK to take action to detain him but do not oblige it to do so, with the result that no conflict arises and article 103 is not engaged.
31. There is an obvious attraction in the appellant’s argument since, as appears from the summaries of UNSCRs 1511 and 1546 given above in paras 12 and 15, the resolutions use the language of authorisation, not obligation, and the same usage is found in UNSCRs 1637 (2005) and 1723 (2006). In ordinary speech to authorise is to permit or allow or license, not to require or oblige. I am, however, persuaded that the appellant’s argument is not sound, for three main reasons.
32. First, it appears to me that during the period when the UK was an occupying power (from the cessation of hostilities on 1 May 2003 to the transfer of power to the Iraqi Interim Government on 28 June 2004) it was obliged, in the area which it effectively occupied, to take necessary measures to protect the safety of the public and its own safety. Article 43 of the Hague Regulations 1907 provides, with reference to occupying powers:
“The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country”.
This provision is supplemented by certain provisions of the Fourth Geneva Convention. Articles 41, 42 and 78 of that convention, so far as material, provide
“41. Should the Power, in whose hands protected persons may be, consider the measures of control mentioned in the present Convention to be inadequate, it may not have recourse to any other measure of control more severe than that of assigned residence or internment, in accordance with the provisions of articles 42 and 43 …
42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary …
78. If the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment”.
These three articles are designed to circumscribe the sanctions which may be applied to protected persons, and they have no direct application to the appellant, who is not a protected person. But they show plainly that there is a power to intern persons who are not protected persons, and it would seem to me that if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such person: see the decision of the International Court of Justice in Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) [2005] ICJ Rep 116, para 178. This is a matter of some importance, since although the appellant was not detained during the period of the occupation, both the evidence and the language of UNSCR 1546 (2004) and the later resolutions strongly suggest that the intention was to continue the pre-existing security regime and not to change it. There is not said to have been such an improvement in local security conditions as would have justified any relaxation.
33. There are, secondly, some situations in which the Security Council can adopt resolutions couched in mandatory terms. One example is UNSCR 820 (1993), considered by the European Court (with reference to an EC regulation giving effect to it) in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland (2005) 42 EHRR 1, which decided in paragraph 24 that “all states shall impound all vessels, freight vehicles, rolling stock and aircraft in their territories …”. Such provisions cause no difficulty in principle, since member states can comply with them within their own borders and are bound by article 25 of the UN Charter to comply. But language of this kind cannot be used in relation to military or security operations overseas, since the UN and the Security Council have no standing forces at their own disposal and have concluded no agreements under article 43 of the Charter which entitle them to call on member states to provide them. Thus in practice the Security Council can do little more than give its authorisation to member states which are willing to conduct such tasks, and this is what (as I understand) it has done for some years past. Even in UNSCR 1244 (1999) relating to Kosovo, when (as I have concluded) the operations were very clearly conducted under UN auspices, the language of authorisation was used. There is, however, a strong and to my mind persuasive body of academic opinion which would treat article 103 as applicable where conduct is authorised by the Security Council as where it is required: see, for example, Goodrich, Hambro and Simons (eds), Charter of the United Nations: Commentary and Documents, 3rd ed (1969), pp 615–616; Yearbook of the International Law Commission (1979), Vol II, Part One, para 14; Sarooshi, The United Nations and the Development of Collective Security (1999), pp 150–151. The most recent and perhaps clearest opinion on the subject is that of Frowein and Krisch in Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), p 729:
“Such authorizations, however, create difficulties with respect to article 103. According to the latter provision, the Charter – and thus also SC resolutions – override existing international law only insofar as they create ‘obligations’ (cf. Bernhardt on article 103 MN 27 et seq.). One could conclude that in case a state is not obliged but merely authorized to take action, it remains bound by its conventional obligations. Such a result, however, would not seem to correspond with state practice at least as regards authorizations of military action. These authorizations have not been opposed on the ground of conflicting treaty obligations, and if they could be opposed on this basis, the very idea of authorizations as a necessary substitute for direct action by the SC would be compromised. Thus, the interpretation of article 103 should be reconciled with that of article 42, and the prevalence over treaty obligations should be recognized for the authorization of military action as well (see Frowein/Krisch on article 42 MN 28). The same conclusion seems warranted with respect to authorizations of economic measures under article 41. Otherwise, the Charter would not reach its goal of allowing the SC to take the action it deems most appropriate to deal with threats to the peace - it would force the SC to act either by way of binding measures or by way of recommendations, but would not permit intermediate forms of action. This would deprive the SC of much of the flexibility it is supposed to enjoy. It seems therefore preferable to apply the rule of article 103 to all action under articles 41 and 42 and not only to mandatory measures.”
This approach seems to me to give a purposive interpretation to article 103 of the Charter, in the context of its other provisions, and to reflect the practice of the UN and member states as it has developed over the past 60 years.
34. I am further of the opinion, thirdly, that in a situation such as the present “obligations” in article 103 should not in any event be given a narrow, contract-based, meaning. The importance of maintaining peace and security in the world can scarcely be exaggerated, and that (as evident from the articles of the Charter quoted above) is the mission of the UN. Its involvement in Iraq was directed to that end, following repeated determinations that the situation in Iraq continued to constitute a threat to international peace and security. As is well known, a large majority of states chose not to contribute to the multinational force, but those which did (including the UK) became bound by articles 2 and 25 to carry out the decisions of the Security Council in accordance with the Charter so as to achieve its lawful objectives. It is of course true that the UK did not become specifically bound to detain the appellant in particular. But it was, I think, bound to exercise its power of detention where this was necessary for imperative reasons of security. It could not be said to be giving effect to the decisions of the Security Council if, in such a situation, it neglected to take steps which were open to it.
35. Emphasis has often been laid on the special character of the European Convention as a human rights instrument. But the reference in article 103 to “any other international agreement” leaves no room for any excepted category, and such appears to be the consensus of learned opinion. The decisions of the International Court of Justice (Case Concerning Questions of Interpretation and Application of the 1971 Montreal Convention Arising From the Aerial Incident at Lockerbie [1992] ICJ Rep 3, para 39; Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide [1993] ICJ Rep 325, per Judge ad hoc Lauterpacht, pp 439–440, paras 99–100) give no warrant for drawing any distinction save where an obligation is jus cogens and according to Judge Bernhardt it now seems to be generally recognised in practice that binding Security Council decisions taken under Chapter VII supersede all other treaty commitments (Simma (ed), The Charter of the United Nations: A Commentary, 2nd ed (2002), pp 1299–1300).
36. I do not think that the European Court, if the appellant’s article 5(1) claim were before it as an application, would ignore the significance of article 103 of the Charter in international law. The court has on repeated occasions taken account of provisions of international law, invoking the interpretative principle laid down in article 31(3)(c) of the Vienna Convention on the Law of Treaties, acknowledging that the Convention cannot be interpreted and applied in a vacuum and recognising that the responsibility of states must be determined in conformity and harmony with the governing principles of international law: see, for instance, Loizidou v Turkey (1996) 23 EHRR 513, paras 42–43, 52; Bankovic v Belgium (2001) 11 BHRC 435, para 57; Fogarty v United Kingdom (2001) 34 EHRR 302, para 34; Al-Adsani v United Kingdom (2001) 34 EHRR 273, paras 54–55; Behrami and Saramati, above, para 122. In the latter case, in para 149, the court made the strong statement quoted in para 21 above.
37. The appellant is, however, entitled to submit, as he does, that while maintenance of international peace and security is a fundamental purpose of the UN, so too is the promotion of respect for human rights. On repeated occasions in recent years the UN and other international bodies have stressed the need for effective action against the scourge of terrorism but have, in the same breath, stressed the imperative need for such action to be consistent with international human rights standards such as those which the Convention exists to protect. He submits that it would be anomalous and offensive to principle that the authority of the UN should itself serve as a defence of human rights abuses. This line of thinking is reflected in the judgment of the European Court in Waite and Kennedy v Germany (1999) 30 EHRR 261, para 67, where the court said:
“67. The court is of the opinion that where states establish international organisations in order to pursue or strengthen their co-operation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the contracting states were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective …”
The problem in a case such as the present is acute, since it is difficult to see how any exercise of the power to detain, however necessary for imperative reasons of security, and however strong the safeguards afforded to the detainee, could do otherwise than breach the detainee’s rights under article 5(1).
38. One solution, discussed in argument, is that a state member of the Council of Europe, facing this dilemma, should exercise its power of derogation under article 15 of the Convention, which permits derogation from article 5. However, such power may only be exercised in time of war or other public emergency threatening the life of the nation seeking to derogate, and only then to the extent strictly required by the exigencies of the situation and provided that the measures taken are not inconsistent with the state’s other obligations under international law. It is hard to think that these conditions could ever be met when a state had chosen to conduct an overseas peacekeeping operation, however dangerous the conditions, from which it could withdraw. The Secretary of State does not contend that the UK could exercise its power to derogate in Iraq (although he does not accept that it could not). It has not been the practice of states to derogate in such situations, and since subsequent practice in the application of a treaty may (under article 31(3)(b) of the Vienna Convention) be taken into account in interpreting the treaty it seems proper to regard article 15 as inapplicable.
39. Thus there is a clash between on the one hand a power or duty to detain exercisable on the express authority of the Security Council and, on the other, a fundamental human right which the UK has undertaken to secure to those (like the appellant) within its jurisdiction. How are these to be reconciled? There is in my opinion only one way in which they can be reconciled: by ruling that the UK may lawfully, where it is necessary for imperative reasons of security, exercise the power to detain authorised by UNSCR 1546 and successive resolutions, but must ensure that the detainee’s rights under article 5 are not infringed to any greater extent than is inherent in such detention. I would resolve the second issue in this sense.
The third issue
40. The third issue (whether English common law or Iraqi law applies to the detention of the appellant and, if the former, whether there is any lawful basis for his detention) can be addressed more shortly. It is directed first to the question whether a claim by the appellant in England against the Secretary of State for damages for false imprisonment is governed by English or Iraqi law. This claim is not founded on the Convention or the Human Rights Act but on tort or delict.
41. The general rule, enacted in section 11(1) of the Private International Law (Miscellaneous Provisions) Act 1995, is that the applicable law is the law of the country in which the events constituting the tort or delict occurred. That country in this case is Iraq, and therefore Iraqi law would ordinarily apply.
42. Section 12 of the 1995 Act provides that the general rule may be displaced if, on comparison of the factors connecting a tort or delict with the country where it occurred with factors connecting it with another country, it is “substantially more appropriate” for the applicable law for determining the issues to be the law of the latter country rather than the former. Making that comparison, and relying on a number of factors connecting the alleged tort with this country, the appellant submits that English law is shown to be substantially more appropriate than Iraqi law to determine the issues raised by his claim.
43. This submission was made by the appellant to the Court of Appeal, which rejected it for reasons given by Brooke LJ in paragraph 106 of his judgment. It is unnecessary to rehearse those reasons. The Court of Appeal made no error of law, and there is no ground for disturbing its assessment, with which in any event I wholly agree. I would resolve this issue against the appellant. The appellant’s claim in tort is governed by the law of Iraq.
44. For these reasons the appeal must be dismissed. 
United Kingdom, House of Lords, Al-Jedda case, Judgment, 12 December 2007, §§ 1–44.
[emphasis in original]
United Kingdom of Great Britain and Northern Ireland
In 2009, in the Al-Sadoon case, the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Sadoon and Mr Mufdhi. Lord Justice Laws summarized the appellants’ case as follows:
The appellants’ essential case was that if they were transferred from their present place of detention by UK troops at Basra into the custody of the IHT [Iraqi High Tribunal] they would be at risk, upon conviction of the charges [of war crimes which] they face, of suffering death by hanging, in violation of rights enjoyed by them under the European Convention on Human Rights (ECHR) alternatively free-standing principles of public international law. The Secretary of State says that no such rights arise, and in any event there will be no substantial risk of the appellants being put to death. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Sadoon case, Judgment, 21 January 2009, § 2.
The appeal was dismissed. In the context of determining whether the UK had jurisdiction over the appellants at the time of their transfer to the Iraqi High Tribunal, Lord Justice Laws considered the lawfulness of their detention by UK forces at Basra. Lord Justice Laws found:
The Legal Position Relating to the Appellants’ Detention – Before 31 December 2008
32. Until 31 December 2008 the United Kingdom forces at Basra enjoyed the guarantees of immunity and inviolability provided by CPA [Coalition Provisional Authority] Order No 17 (Revised). But those measures prohibited invasive sanctions; they did not confer executive power. In my judgment, from at least May 2006 until 31 December 2008, the British forces at Basra were not entitled to carry out any activities on Iraq’s territory in relation to criminal detainees save as consented to by Iraq, or otherwise authorized by a binding resolution or resolutions of the [UN] Security Council. So much flows from the fact of Iraq’s sovereignty, and is not contradicted – quite the reverse – by any of the United Nations measures in the case. Thus the MNF [Multinational Force] Mandate was extended by the Security Council at Iraq’s express request. The letter requesting its extension (which was attached to [Security Council] Resolution 1790 (2007)) expressly stated at paragraph 4, “[t]he Government of Iraq will be responsible for arrest, detention and imprisonment tasks”. The various material Security Council Resolutions (1483 (2003), 1546 (2004) and 1790 (2007)) all emphasise the primacy of Iraqi sovereignty. As regards criminal detentions, CPA Memorandum No. 3 (Revised) makes it plain that so far as criminal detainees may be held by any national contingent of the MNF, they are held, in effect, to the order of the Iraqi authorities.
33. In these circumstances the United Kingdom was not before 31 December 2008 exercising any power or jurisdiction in relation to the appellants other than as agent for the Iraqi court. It was not exercising, or purporting to exercise, any autonomous power of its own as a sovereign State.
The Legal Position Relating to the Appellants’ Detention – After 31 December 2008
34. As I stated earlier, once the Mandate expired there remained under international law no trace or colour of any power or authority whatever for the MNF, or any part of it, to maintain any presence in Iraq save only and strictly at the will of the Iraqi authorities. Ms Monaghan [counsel for the appellants] sought to submit that the British base at Basra would by force of customary international law remain inviolable after 31 December. But she was unable to identify any principle which might, on the facts, support that position; and it is to my mind wholly inescapable that after that date British forces remaining in Iraq have done so only by consent of the Iraqi authorities and on such terms as those authorities have agreed. And it must have been plain, as soon as it was known when the Mandate would come to an end, that this would be the true state of affairs.
35. And there is no sensible room for doubt but that the terms on which British forces would be permitted to remain in Iraq by the Iraqi authorities would not encompass any role or function which would permit, far less require, British (or any other) forces to continue to hold detainees. By his third witness statement made on 26 December 2008 Mr Watkins, Director of Operational Policy in the Operations Directorate in the Ministry of Defence, produced a resolution passed by the Iraqi Council of Representatives on 23 December authorising the Council of Ministers to regulate the presence and activities of British and other forces in Iraq after 31 December. It is plain that the arrangements envisaged do not contemplate the detention of any prisoners by any such forces. Mr Watkins also stated that Iraqi officials had made it clear on 21 December that even in relation to proposed authorized tasks they did not consider it acceptable for British forces to exercise any powers of detention after 31 December. The Council of Representatives resolution (which was to, and I assume did, come into force on 1 January 2009) also suspended the operation of CPA Order No 17 (Revised). Mr Watkins had given evidence in an earlier statement that the Iraqi government would not after 31 December accept CPA Memorandum No 3 (Revised) as remaining in operation.
36. After 31 December 2008 British forces enjoyed no legal power to detain any Iraqi. Had they done so, the Iraqi authorities would have been entitled to enter the premises occupied by the British and recover any such person so detained. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Sadoon case, Judgment, 21 January 2009, §§ 32–36.
United Kingdom of Great Britain and Northern Ireland
In 2010, in the Evans case, the England and Wales High Court of Justice, Queen’s Bench Division, considered the legality of the transfer of detainees by UK armed forces to Afghan detention facilities. The facts of the case, as summarized by Lord Justice Richards who gave the judgment to which both judges had contributed, are:
The case concerns UK policy and practice in relation to the transfer to the Afghan authorities of suspected insurgents detained by UK armed forces in the course of operations in Afghanistan. The policy is that such detainees are to be transferred to the Afghan authorities within 96 hours or released, but are not to be transferred where there is a real risk at the time of transfer that they will suffer torture or serious mistreatment. The claimant’s case is that transferees into Afghan custody have been and continue to be at real risk of torture or serious mistreatment and, therefore, that the practice of transfer has been and continues to be in breach of the policy and unlawful. The claimant seeks, in effect, to bring the practice of transferring detainees into Afghan custody to an end. If detainees cannot be transferred, the likelihood at present is that they will have to be released. Thus the importance of the case lies not only in its subject-matter but also in its implications for security in Afghanistan and the effectiveness of UK operations there. 
United Kingdom, England and Wales High Court of Justice (Queen’s Bench Division), Evans case, Judgment, 25 June 2010, § 1.
Lord Justice Richards set out the context of the case as follows:
17. The law of armed conflict applies to military operations conducted in internal armed conflict and, subject to compliance with that law, UK armed forces operating in Afghanistan are authorised to kill or capture insurgents. Indeed, a vital element of fulfilling the UN mission is the capture of persons who threaten the security of Afghanistan. The power to capture insurgents extends to a power to detain them temporarily. In the absence of any express authorisation in the UN Security Council resolutions, however, the Secretary of State [for Defence] takes the view that the UK has no power of indefinite internment. …
18. Insurgents may have committed offences under Afghan law, notably the 1987 Law on Crimes against Internal and External Security and the 2008 Law on Combat against Terrorist Offences. The Afghan Government is entitled to prosecute those within its jurisdiction who are believed to have committed offences. Successful prosecutions are an important element of the strategy for securing the rule of law and bringing security to Afghanistan. Accordingly, where captured insurgents are believed to have committed offences against Afghan law, sound reasons exist for their transfer into the custody of the Afghan authorities for the purposes of questioning and prosecution.
19. Under ISAF [International Security Assistance Force] standard operating procedures, the only grounds upon which a person may be detained are that the detention is necessary for ISAF force protection, for the self-defence of ISAF or its personnel, or for the accomplishment of the ISAF mission. Such persons should be detained for no longer than 96 hours, subject to the possibility of an extension in certain circumstances. They must then be released or transferred to the Afghan authorities. …
20. The UK’s policy reflects that of ISAF. There are detailed standard operating instructions on how to detain individuals, look after them in detention and, where appropriate, manage their onward transfer to the Afghan authorities. 
United Kingdom, England and Wales High Court of Justice (Queen’s Bench Division), Evans case, Judgment, 25 June 2010, §§ 17–20.
United Kingdom of Great Britain and Northern Ireland
In 2010, in the Al-Jedda case (No 2), the England and Wales Court of Appeal (Civil Division) was called upon to decide the appeal of Mr Al-Jedda, a national of both the United Kingdom and Iraq, who sought damages for unlawful imprisonment by UK forces in Iraq. The Court of Appeal dismissed the appeal. Lady Justice Arden summarized the background of the case as follows:
1. In this action, Mr Al Jedda, who has both Iraqi and British nationality, seeks damages for unlawful imprisonment by reason of his detention by British forces in a military detention centre in Iraq. On this appeal we have to determine whether this action was properly dismissed by Underhill J on 5 March 2009 following the trial. The period for which damages is claimed constitutes part only of the period for which Mr Al Jedda was detained, namely that following the adoption of the new Constitution of Iraq on 20 May 2006 to 30 December 2007, the date of his release.
2. The claim was raised by amendment. Mr Al Jedda’s original claim was for declaratory relief or habeas corpus. In earlier proceedings, Mr Al Jedda sought declaratory relief and damages under the Human Rights Act 1998 (“HRA”) but the House of Lords held that no such claim lay because the United Kingdom’s obligations had been displaced by its obligations under the UN Charter ([2008] 1 AC 332). The earlier proceedings leading to the decision of the House of Lords are referred to in this judgment as Al Jedda 1. This court in Al Jedda 1 held that, under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 (“PILA”), the law governing any claim for false imprisonment was that of Iraq. The House of Lords agreed with that holding.
3. In legal terms, this is an unusual case. Mr Al Jedda was detained by British forces in Basra on 10 October 2004 on security grounds. He was suspected of being a member of a terrorist group said to be involved in weapons smuggling and explosive attacks in Iraq. He remained in detention until 30 December 2007. He was at no time charged with any offence. It has been held that he is unable to bring any claim to test the lawfulness of his detention under the HRA (Al Jedda 1), although, following the dismissal of that claim by the House of Lords, Mr Al Jedda has made an application to the European Court of Human Rights (“the Strasbourg court”). The Grand Chamber of the Strasbourg court had a hearing in his case on 9 June 2010, and judgment from that court is pending. It has also been held that Mr Al Jedda cannot bring any claim in tort under the common law. Notwithstanding that Mr Al Jedda’s detention was by British forces, the lawfulness of his detention can only be determined if, at all, these proceedings, that is, under the law of Iraq, where the detention occurred. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Jedda case (No 2), Judgment, 8 July 2010, §§ 1–3.
Lady Justice Arden further stated:
The essential facts for the purposes of this appeal are: (1) Mr Al Jedda was detained pursuant to arrangements agreed between British forces and the Iraqi government prior to the adoption of the new Constitution in fulfilment of the United Kingdom’s obligations under the UN Charter; (2) those arrangements complied with [the 1949] Geneva [Convention] 4; (3) the Iraqi government did not withdraw its agreement to those arrangements after the adoption of the new Constitution; and (4) those arrangements made no provision of any sort for a hearing or any review by an independent judicial officer. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Jedda case (No 2), Judgment, 8 July 2010, § 20.
Lady Justice Arden noted that there are five issues raised by this appeal:
i) Was the detention of Mr Al Jedda from 20 May 2006 unlawful under Iraqi law by reason of the operation or effect of the Iraqi Constitution? (“the lawfulness of detention issue”)
ii) In so far as Mr Al Jedda’s claim raises any issue as to the meaning or effect of provisions of the Iraqi constitution, is the issue justiciable in an English court? (“the justiciability issue”)
iii) If Mr Al Jedda’s detention from 20 May 2006 was unlawful under Iraqi law, should the relevant provisions in Iraqi law be disapplied on the basis that they are inconsistent with the requirements of international law and their enforcement would accordingly be contrary to public policy pursuant to section 14(3) of PILA [Private International Law Act]? (“the public policy issue”)
iv) Does the immunity conferred on British forces operating in Iraq by CPA [Coalition Provisional Authority Order No] 17 have the effect that Mr Al Jedda’s claim discloses no actionable tort for the purposes of section 9 (4) of PILA? (“the CPA 17 issue”)
v) Is the Secretary of State entitled to rely on the defence of act of state? (“the act of state issue”). 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Jedda case (No 2), Judgment, 8 July 2010, § 21.
Lady Justice Arden considered the extent to which Article 78 of the 1949 Geneva Convention IV was relevant for determining the legality of the appellant’s detention. She found:
We are concerned with the meaning of Articles 15 and 37(1)(B) of the Iraqi Constitution. The provisions of Article 78 of [the 1949] Geneva [Convention] 4, and of the Siracusa principles [on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights], are important, but of limited assistance in this task. The former deals with the position of an occupying power and the latter deals with the situation of emergency powers. Neither deals with the relationship between a government and its citizens where there has been no derogation because of an emergency. Under Article 61 of the Iraqi Constitution … , states of emergency can be declared for successive periods of thirty days, and all the necessary powers to deal with the emergency can then be delegated to the Prime Minster. Those powers must be regulated by laws which do not contradict the Constitution but, if they are necessary to deal with the situation (and that involves showing necessity), they may, as I read Article 61, depart from other powers, including Articles 15 and 37(1)(B). I respectfully doubt therefore the utility of praying in aid the turmoil in Iraq: if there was a state of emergency there were other provisions in the Constitution which authorised the taking of other powers which could have been but which were not used. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Jedda case (No 2), Judgment, 8 July 2010, § 66.
Lady Justice Arden held:
108. Firstly, in my judgment, Al Jedda 1 established that the United Kingdom was entitled and bound under its obligations under Article 103 of the UN Charter to intern persons where this was necessary for the internal security of Iraq. Internment for this purpose would clearly qualify as an act of state. My conclusion that act of state is a defence here does not go wider than this. It applies, in my judgment, because of the overriding force of UNSCR [UN Security Council Resolution] 1546. If courts hold states liable in damages when they comply with resolutions of the UN designed to secure international peace and security, the likelihood is that states will be less ready to assist the UN achieve its role in this regard, and this would be detrimental to the long-term interests of the states. The individual is sufficiently protected in this situation by compliance with [the 1949] Geneva [Convention] 4. By virtue of CPA [Coalition Provisional Authority Order No] 3, there had to be compliance with Geneva 4. It is thus not correct to say that the executive had unfettered powers of internment. A decision of the executive in breach of Geneva 4 can be remedied in this jurisdiction through the processes of judicial review, and a breach may also constitute a criminal offence over which the United Kingdom courts would have universal jurisdiction under the Geneva Conventions Act 1957. My conclusion is analogous to that reached in Al Jedda 1 where it was held that Convention [i.e. ECHR] rights were displaced by powers conferred by UNSC resolutions to the extent necessary to exercise those powers … Within that limit, there can in my judgment be no challenge to a review of detention carried out under those powers in any manner permitted by Geneva 4 or to the legality of a decision to detain made in exercise of the powers conferred by the UNSCR. Both such challenges would be subject to the defence of act of state. The fact that the proper law of an alleged wrong is that of Iraq does not affect this decision. I would add that when holding that the proper law of the tort was the law of Iraq, this court in Al Jedda 1 excluded a separate claim for habeas corpus ([2007] QB 621 at [100] to [101]). It is unnecessary for me to consider whether there would be a claim for habeas corpus if Mr Al Jedda had not been released.
109. Secondly, the fact that Mr Al Jedda is a British national is not, in my judgment, a bar to the raising of the defence of act of state in respect of acts done abroad as part of a general policy of internment carried out under the authority of the UN for imperative reasons of security. In my judgment, a British national is entitled not to have the defence of act of state raised against him by the British government where he both owes an obligation of allegiance and is constitutionally entitled to be protected against the type of act of which he complains. However, the actions of the British forces in that situation do not infringe any domestic constitutional protection available to Mr Al Jedda as a British national because the act had a legal basis in the overarching provisions of Article 103 of the UN Charter and Geneva 4. I reach this conclusion for this reason and the reasons given in the preceding paragraph and notwithstanding the importance of the accountability of the executive under the law (see Entick v Carrington [1558-1774] All ER 4), even in the conduct of foreign relations. However, I do not accept that reliance on act of state is precluded where the loss is suffered by an individual: see, for example, Buron v Denman (1848) 2 Exch. 167, cited by Lord Justice Elias.
110. Thirdly, Nissan Attorney General v Nissan [1970] AC 179] is in my judgment clearly distinguishable. It was no part of the peace-keeping function of the troops to take property without paying for it. In the present case, internment was part of the role which the British contingent of the MNF [Multinational Force] were specifically required to carry out. The acceptance and carrying out of those obligations was an exercise of sovereign power. It is inevitable that a detainee would suffer the loss of his liberty while he was detained. Therefore, even though Mr Al Jedda’s claim is for compensation rather than to challenge the validity of an act of state, and respectfully differing from the tentative illuminating views on this issue of Lord Justice Elias, I consider that the court cannot entertain it.
Disposition
111. For the reasons given above, I have found in Mr Al Jedda’s favour on four out of the five issues. However, to succeed on the appeal he needed to win on all of them. Accordingly, I would dismiss the appeal, as well as the respondent’s notice. 
United Kingdom, England and Wales Court of Appeal (Civil Division), Al-Jedda case (No 2), Judgment, 8 July 2010, §§ 108–111.
United States of America
In the Pohl case before the US Military Tribunal at Nuremberg in 1947, 18 accused were charged, inter alia, with the war crime of “illegal imprisonment”. 
United States, Military Tribunal at Nuremberg, Pohl case, Indictment, 13 January 1947.
Three of the accused were acquitted and the remainder were convicted receiving sentences ranging from ten years to death by hanging. 
United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 3 November 1947.
United States of America
In 2002, in the Mehinovic case, a civil lawsuit filed on behalf of four Bosnian Muslims who were tortured by a Bosnian-Serb soldier in Bosnia-Herzegovina in 1992, the US District Court Northern District of Georgia found the defendant liable for torture; cruel, inhuman and degrading treatment; arbitrary detention; war crimes; crimes against humanity; and genocide. The Court awarded the plaintiffs US$140 million in damages. In its judgment, the Court stated:
Arbitrary detention is a violation of customary international law and thus actionable under the ATCA [Alien Tort Claims Act]. See Alvarez, 266 F.3d at 1052–53; Fernandez-Roque v. Smith, 622 F.Supp. 887, 903 (N.D.Ga.1985); Forti, 672 F.Supp. at 1541. “Arbitrary detention is cited as a violation of international law in all comprehensive international human rights instruments.” [Restatement (Third) of Foreign Relations Law § 702, Reporters’ Note 6 (1987) (citing, inter alia, Universal Declaration, art. 9; ICCPR [International Covenant on Civil and Political Rights], art 9; European Convention, art. 5; American Convention, art. 7)]. Generally, detention is arbitrary if “it is not pursuant to law; it may be arbitrary also if it is incompatible with the principles of justice or with the dignity of the human person.” [Restatement (Third) of Foreign Relations Law, § 702, comment h (1987)] More specifically, arbitrary detention is the detention of a person in an official detention facility or in any other place, without notice of charges and failure to bring that person to trial within a reasonable time. Id.; see Fernandez-Roque, 622 F.Supp. at 903 (indefinite detention of Cuban refugees without periodic hearings violates customary international law); see also Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1061, n. 18. (N.D.Ga.1981) (indefinite detention of Cuban refugees would violate customary international law if question were properly before court). Here, plaintiffs each were detained without ever being advised of any charges against them. There is no evidence that any was ever brought before a court or ever tried for any offense, or that the detentions were made pursuant to any law.
Acts of torture, inhuman treatment, and arbitrary detention of civilians committed in the course of hostilities violate the international law of war as codified in the Geneva Conventions and, hence, are a proper basis for liability under the ATCA. Kadic v. Karadzic, 70 F.3d at 242–43. Such acts, whether committed in an international armed conflict or a non-international armed conflict, violate customary international law and are enforceable under the ATCA [Alien Tort Claims Act, 28 U.S.C. § 1350 (1988)]. 
United States, District Court Northern District of Georgia, Mehinovic case, Judgment, 29 April 2002.
United States of America
In 2004, in the Hamdi case involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of the capture and detention of combatants, the Court stated:
The capture and detention of lawful combatants and the capture, detention, and trial of unlawful combatants, by “universal agreement and practice,” are “important incident[s] of war.” Ex parte Quirin, supra, at 28, 30. The purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again. Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 572 (2002) (“[C]aptivity in war is ‘neither revenge, nor punishment, but solely protective custody, the only purpose of which is to prevent the prisoners of war from further participation in the war’” (quoting decision of Nuremberg Military Tribunal, reprinted in 41 Am. J. Int’l L. 172, 229 (1947))); W. Winthrop, Military Law and Precedents 788 (rev. 2d ed. 1920) (“The time has long passed when ‘no quarter’ was the rule on the battlefield . … It is now recognized that ‘Captivity is neither a punishment nor an act of vengeance,’ but ‘merely a temporary detention which is devoid of all penal character.’ … ‘A prisoner of war is no convict; his imprisonment is a simple war measure.’” (citations omitted)); cf. In re Territo, 156 F.2d 142, 145 (CA9 1946) (“The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely and in time exchanged, repatriated or otherwise released” (footnotes omitted)).
There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. In Quirin, one of the detainees, Haupt, alleged that he was a naturalized United States citizen. 317 U.S., at 20, 87 L. Ed. 3, 63 S. Ct. 2. We held that “[c]itizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of … the law of war.” Id., at 37–38, 87 L. Ed. 3, 63 S. Ct. 2. While Haupt was tried for violations of the law of war, nothing in Quirin suggests that his citizenship would have precluded his mere detention for the duration of the relevant hostilities. See id., at 30–31, 87 L. Ed. 3, 63 S. Ct. 2. See also Lieber Code P 153, Instructions for the Government of Armies of the United States in the Field, Gen. Order No. 100 (1863), reprinted in 2 F. Lieber, Miscellaneous Writings, p 273 P. 153 (1880) (contemplating, in code binding the Union Army during the Civil War, that “captured rebels” would be treated “as prisoners of war”). Nor can we see any reason for drawing such a line here. A citizen, no less than an alien, can be “part of or supporting forces hostile to the United States or coalition partners” and “engaged in an armed conflict against the United States,” …; such a citizen, if released, would pose the same threat of returning to the front during the ongoing conflict.
In light of these principles, it is of no moment that the AUMF [Authorization for Use of Military Force Against Terrorists, 115 Stat 224, enacted 18 September 2001] does not use specific language of detention. Because detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war, in permitting the use of “necessary and appropriate force,” Congress has clearly and unmistakably authorized detention in the narrow circumstances considered here.
Hamdi objects, nevertheless, that Congress has not authorized the indefinite detention to which he is now subject. The Government responds that “the detention of enemy combatants during World War II was just as ‘indefinite’ while that war was being fought.” Id., at 16, 87 L. Ed. 3, 63 S. Ct. 2. We take Hamdi’s objection to be not to the lack of certainty regarding the date on which the conflict will end, but to the substantial prospect of perpetual detention. We recognize that the national security underpinnings of the “war on terror,” although crucially important, are broad and malleable. As the Government concedes, “given its unconventional nature, the current conflict is unlikely to end with a formal cease-fire agreement.” Ibid. The prospect Hamdi raises is therefore not farfetched. If the Government does not consider this unconventional war won for two generations, and if it maintains during that time that Hamdi might, if released, rejoin forces fighting against the United States, then the position it has taken throughout the litigation of this case suggests that Hamdi’s detention could last for the rest of his life.
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, [1955] 6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra, Oct. 18, 1907, 36 Stat 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra, July 27, 1929, 47 Stat 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Intl L. J. 503, 510–511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).
Hamdi contends that the AUMF does not authorize indefinite or perpetual detention. Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized. Further, we understand Congress’ grant of authority for the use of “necessary and appropriate force” to include the authority to detain for the duration of the relevant conflict, and our understanding is based on longstanding law-of-war principles. If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, that understanding may unravel. But that is not the situation we face as of this date. Active combat operations against Taliban fighters apparently are ongoing in Afghanistan. … The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants who “engaged in an armed conflict against the United States.” If the record establishes that United States troops are still involved in active combat in Afghanistan, those detentions are part of the exercise of “necessary and appropriate force,” and therefore are authorized by the AUMF. 
United States, Supreme Court, Hamdi case, Judgment, 28 June 2004.
[emphasis in original]
United States of America
In 2006, in the El Masri case, a civil suit in which the plaintiff claimed to have been an innocent victim of the United States’ extraordinary rendition program and sought redress from the former Director of the Central Intelligence Agency (CIA), private corporations allegedly involved in the program, and unknown employees of both the CIA and the private corporations, the Court granted the Government’s motion to dismiss, finding that the claim of state secrets was valid. The Court stated:
[I]t is important to note that, unlike other privileges, the state secrets privilege is absolute and therefore once a court is satisfied that the claim is validly asserted, the privilege is not subject to a judicial balancing of the various interests at stake.
[T]he substance of El-Masri’s publicly available complaint alleges a clandestine intelligence program, and the means and methods the foreign intelligence services of this and other countries used to carry out the program. And, as the public declaration makes pellucidly clear, any admission or denial of these allegations by defendants in this case would reveal the means and methods employed pursuant to this clandestine program and such a revelation would present a grave risk of injury to national security.
To succeed on his claims, El-Masri would have to prove that he was abducted, detained, and subjected to cruel and degrading treatment, all as part of the United States’ extraordinary rendition program. As noted above, any answer to the complaint by the defendants risks the disclosure of specific details about the rendition argument.
[W]hile dismissal of the complaint deprives El-Masri of an American judicial forum for vindicating his claims, well-established and controlling legal principles require that in the present circumstances, El-Masri’s private interests must give way to the national interest in preserving state secrets. The United States’ motion to dismiss must therefore be granted.
It is important to emphasize that the result reached here is required by settled, controlling law. It is in no way an adjudication of, or comment on, the merit or lack of merit of El-Masri’s complaint. Nor does this ruling comment or rule in any way on the truth or falsity of his factual allegations; they may be true or false, in whole or in part. Further, it is also important that nothing in this ruling should be taken as a sign of judicial approval or disapproval of rendition programs; it is not intended to do either. In times of war, our country, chiefly through the Executive Branch, must often take exceptional steps to thwart the enemy. Of course, reasonable and patriotic Americans are still free to disagree about the propriety and efficacy of those exceptional steps. But what this decision holds is that these steps are not proper grist for the judicial mill where, as here, state secrets are at the center of the suit and the privilege is validly invoked.
Finally, it is worth noting that putting aside all the legal issues, if El-Masri’s allegations are true or essentially true, then all fair-minded people, including those who believe that state secrets must be protected, that this lawsuit cannot proceed, and that renditions are a necessary step to take in this war, must also agree that El-Masri has suffered injuries as a result of our country’s mistake and deserves a remedy. Yet, it is also clear from the result reached here that the only sources of that remedy must be the Executive Branch or the Legislative Branch, not the Judicial Branch. 
United States, District Court for the Eastern District of Virginia, El Masri case, Judgment, 12 May 2006.
United States of America
The Al-Marri case in June 2007 involved a citizen of Qatar, legally resident in the United States, who had been arrested in December 2001 on terrorism-related charges and confined to a US-naval prison in Charleston as an enemy combatant (the US President having determined that he was closely associated with al Qaeda and engaged in conduct in preparation for acts of terrorism). Appearing before the US Court of Appeals for the Fourth Circuit, Al-Marri appealed a decision of a District Court, which had denied his petition for a writ of habeas corpus. In a majority judgment, the Court of Appeals rejected the Government’s arguments that civilians become enemy combatants if they engaged in criminal conduct on behalf of an enemy organization and that the President had inherent constitutional authority to order the military to detain such persons. It reversed the decision of the lower court and remanded the case back to it, with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release Al-Marri from military custody. On matters regarding “deprivation of liberty” and “combatant status”, the Court of Appeals found:
The act of depriving a person of the liberty protected by our Constitution is a momentous one; thus, recognized exceptions to criminal process are narrow in scope, and generally permit only limited periods of detention. See, e.g., Jackson v. Indiana, 406 U.S. 715, 738, 92 S. Ct. 1845, 32 L. Ed. 2d 435 (1972). And, of course, the Government can never invoke an exception, and so detain a person without criminal process, if the individual does not fit within the narrow legal category of persons to whom the exception applies …
In Hamdi, the plurality explained that precisely the same principles apply when the Government seeks to detain a person as an enemy combatant. Under the habeas procedure prescribed in Hamdi, if the Government asserts an exception to the usual criminal process by detaining as an enemy combatant an individual with constitutional rights, it must proffer evidence to demonstrate that the individual “qualif[ies]” for this exceptional treatment. 542 U.S. at 516, 534. Only after the Government has “put[] forth credible evidence that” an individual “meets the enemy-combatant criteria” does “the onus” shift to the individual to demonstrate “that he falls outside the [enemy combatant] criteria.” Id. at 534. For in this country, the military cannot seize and indefinitely detain an individual – particularly when the sole process leading to his detention is a determination by the Executive that the detention is necessary – unless the Government demonstrates that he “qualif[ies]” for this extraordinary treatment because he fits within the “legal category” of enemy combatants. Id. at 516, 522 n.1. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIA.
[emphasis in original]
…[W]e note that American courts have often been reluctant to follow international law in resolving domestic disputes. In the present context, however, they, like the Government here, have relied on the law of war – treaty obligations including the Hague and Geneva Conventions and customary principles developed alongside them. The law of war provides clear rules for determining an individual’s status during an international armed conflict, distinguishing between “combatants” [(members of a nation’s military, militia, or other armed forces, and those who fight alongside them) and “civilians” (all other persons)]. See, e.g., Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention) arts. 2, 4, 5, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) art. 4, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287. American courts have repeatedly looked to these careful distinctions made in the law of war in identifying which individuals fit within the “legal category” of “enemy combatants” under our Constitution. See, e.g., Hamdi, 542 U.S. at 518; Quirin, 317 U.S. at 30–31 & n.7; Milligan, 71 U.S. at 121–22; Padilla, 423 F.3d at 391. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB1.
In view of the holdings in Hamdi and Padilla, we find it remarkable that the Government contends that they “compel the conclusion” that the President may detain al-Marri as an enemy combatant. For unlike Hamdi and Padilla, al-Marri is not alleged to have been part of a Taliban unit, not alleged to have stood alongside the Taliban or the armed forces of any other enemy nation, not alleged to have been on the battlefield during the war in Afghanistan, not alleged to have even been in Afghanistan during the armed conflict there, and not alleged to have engaged in combat with United States forces anywhere in the world. See Rapp Declaration (alleging none of these facts, but instead that “Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States”). 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB2.
Rather than supporting the Government’s position, the Supreme Court’s most recent terrorism case provides an additional reason for rejecting the contention that al-Marri is an enemy combatant. In Hamdan, the Court held that because the conflict between the United States and al Qaeda in Afghanistan is not “between nations,” it is a “‘conflict not of an international character’” – and so is governed by Common Article 3 of the Geneva Conventions. See 126 S. Ct. at 2795; see also id. at 2802 (Kennedy, J., concurring). Common Article 3 and other Geneva Convention provisions applying to non-international conflicts (in contrast to those applying to international conflicts, such as that with Afghanistan’s Taliban government) simply do not recognize the “legal category” of enemy combatant. See Third Geneva Convention, art. 3, 6 U.S.T. at 3318. As the International Committee of the Red Cross – the official codifier of the Geneva Conventions – explains, “an ‘enemy combatant’ is a person who, either lawfully or unlawfully, engages in hostilities for the opposing side in an international armed conflict;” in contrast, “[i]n non-international armed conflict combatant status does not exist.” Int’l Comm. of the Red Cross, Official Statement: The Relevance of IHL in the Context of Terrorism, at 1, 3 (Feb. 21, 2005), http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/terrorismihl-210705 (emphasis added).
Perhaps for this reason, the Government ignores Hamdan’s holding that the conflict with al Qaeda in Afghanistan is a non-international conflict, and ignores the fact that in such conflicts the “legal category” of enemy combatant does not exist. Indeed, the Government’s sole acknowledgment of Hamdan in its appellate brief is a short footnote, in which it asserts that “the Court took it as a given that Hamdan was subject to detention as an enemy combatant during ongoing hostilities.” The weakness of this response is apparent. Not only does it avoid the holding in Hamdan that the conflict between the United States and al Qaeda is a non-international conflict, but also it suggests that the Supreme Court approved Hamdan’s detention when the legality of that detention was not before the Court, and in fact, the legality of the detention of those like Hamdan, captured and detained in the conflict with al Qaeda outside the United States, is still being litigated. See, e.g., Boumediene, 375 U.S. App. D.C. 48, 476 F.3d 981.
Moreover, even were the Supreme Court ultimately to approve the detention of Hamdan and those like him, that would not bolster the Government’s position at all in the case at hand. This is so because, since the legal status of “enemy combatant” does not exist in non-international conflicts, the law of war leaves the detention of persons in such conflicts to the applicable law of the detaining country. In al-Marri’s case, the applicable law is our Constitution. Thus, even if the Supreme Court should hold that the Government may detain indefinitely Hamdan and others like him, who were captured outside the United States and lacked substantial and voluntary connections to this country, that would provide no support for approving al-Marri’s military detention. For not only was al-Marri seized and detained within the United States, he also has substantial connections to the United States, and so plainly is protected by the Due Process Clause [Fifth Amendment to the US Constitution]. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIB3.
[emphasis in original]
… Put simply, the Constitution does not allow the President to order the military to seize civilians residing within the United States and detain them indefinitely without criminal process, and this is so even if he calls them “enemy combatants.” 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIC3.
To sanction such presidential authority to order the military to seize and indefinitely detain civilians, even if the President calls them “enemy combatants,” would have disastrous consequences for the Constitution – and the country. For a court to uphold a claim to such extraordinary power would do more than render lifeless the Suspension Clause, the Due Process Clause, and the rights to criminal process in the Fourth, Fifth, Sixth, and Eighth Amendments; it would effectively undermine all of the freedoms guaranteed by the Constitution. It is that power – were a court to recognize it – that could lead all our laws “to go unexecuted, and the government itself to go to pieces.” We refuse to recognize a claim to power that would so alter the constitutional foundations of our Republic. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 11 June 2007, § IIIC3.
Having ordered that Al-Marri’s military detention cease in the 11 June 2007 judgment, the Court of Appeals for the Fourth Circuit subsequently vacated the judgment and held an en banc rehearing on 31 October 2007. In its revised judgment in the case, issued on 15 July 2008, the court held that Al-Marri could be held in military detention indefinitely as an enemy combatant, stating:
Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote … that, if the Government’s allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote … that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government’s allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant.
Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow. 
United States, Court of Appeals for the Fourth Circuit, Al-Marri case, Judgment, 15 July 2008, p. 5.
United States of America
In the Hamlily case in 2009, in which the Petitioners challenged the legality of their detention at Guantánamo by seeking writs of habeas corpus, the District Court for the US District of Columbia ruled that the US Government’s detention policy is generally consistent with the authority conferred on the US President under the Authorization for Use of Military Force (AUMF), Public Law 107-40, 115 Stat. 224, 18 September 2001, and core law of war principles that govern non-international armed conflicts. The Court stated in relation to the background of the case:
On March 13, 2009, in response to a prior order of this Court, the government [Department of Justice] submitted a refinement of its position with respect to its authority to detain those individuals being held at Guantánamo. The government proposed the following “definitional framework”:
The President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who were part of, or substantially supported, Taliban or al Qaida forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act, or has directly supported hostilities, in aid of such enemy armed forces.
Resp’ts’ Mem. at 2. [Resp’ts’ Mem. Regarding the Detention Authority Relative to Individuals Held at Guantánamo Bay, In re: Guantánamo Bay Litigation, Misc. No. 08-442 (TFH), 13 March 2009].
To aid its consideration of these and other related issues, the Court held a hearing on April 17, 2009. Less than a week later, Judge Walton issued his opinion in Gherebi v. Obama, Civ. A. No. 04-1164, 2009 WL 1068955 (D.D.C. Apr. 22, 2009). Gherebi concerns the same question at issue here and Judge Walton’s thorough and thoughtful opinion advances this Court’s analysis considerably. He concluded that “the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms ‘substantially supported’ and ‘part of’ are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.” Id. at *24. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 3 and 5.
[footnotes in original omitted]
In its broad analysis of the case, the Court stated:
[T]he Court turns to the government’s proposed framework. Although this Court concurs in much of the reasoning and conclusions of Gherebi, it does not agree with the decision to adopt the government’s framework in its entirety. Specifically, the Court rejects the concept of “substantial support” as an independent basis for detention. Likewise, the Court finds that “directly support[ing] hostilities” is not a proper basis for detention. In short, the Court can find no authority in domestic law or the law of war, nor can the government point to any, to justify the concept of “support” as a valid ground for detention. The Court does not accept the government’s position in full, then, even given the deference accorded to the Executive in this realm, because it is ultimately the province of the courts to say “what the law is,” Marbury v. Madison, 1 Cranch 137, 177, 2 L.Ed. 60 (1803), and in this context that means identifying the “permissible bounds” of the Executive’s detention authority, Hamdi, 542 U.S. at 522 n.1. Detention based on substantial or direct support of the Taliban, al Qaeda or associated forces, without more, is simply not warranted by domestic law or the law of war.
With the exception of these two “support”-based elements, however, the Court will adopt the government’s proposed framework, largely for the reasons explained in Gherebi. The AUMF and the law of war do authorize the government to detain those who are “part of” the “Taliban or al Qaida forces.” Because the AUMF permits the President “to use all necessary and appropriate force” against “organizations” involved in the September 11 attacks, it naturally follows that force is also authorized against the members of those organizations. In light of Hamdi and subsequent cases, such force includes the power to detain. That is consistent with the law of war principles governing non-international conflicts. The authority also reaches those who were members of “associated forces,” which the Court interprets to mean “co-belligerents” as that term is understood under the law of war. Lastly, the government’s detention authority covers “any person who has committed a belligerent act,” which the Court interprets to mean any person who has directly participated in hostilities. But while the Court concludes that the concepts of “substantial support” and “direct support” are not, under the law of war, independent bases for detention, evidence tending to demonstrate that a petitioner provided significant “support” is relevant in assessing whether he was “part of” a covered organization (through membership or otherwise) or “committed a belligerent act” (through direct participation in hostilities). 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 7 and 8.
[footnote in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of “Taliban or al Qaida forces or associated forces”, the Court stated:
Petitioners argue, just as they did in Gherebi, that because they cannot be classified as “combatants” under Article 4(A) of the Third Geneva Convention [1949 Geneva Convention III] or Article 43 of [1977] Additional Protocol I, they must be “civilians” – a classification that means they are not subject to military force (i.e., detention) “unless and for such time as they take a direct part in hostilities.” [Additional Protocol I] arts. 51(1), 51(3) … Putting aside for the moment the restrictive definition of “direct participation” advanced by petitioners, their advocacy of a detention authority based upon the dichotomy between combatants and civilians in traditional international armed conflicts is flawed. To begin with, the U.S. conflict with al Qaeda is a non-international armed conflict; hence, Article 4 and Additional Protocol I do not apply. Moreover, the government no longer seeks to detain petitioners on the basis that they are “enemy combatants.” Indeed, the government’s abandonment of this term is an implicit acknowledgment that “[i]n non-international armed conflict combatant status does not exist. … The treaty authorities that regulate non-international armed conflicts – Common Article 3, Additional Protocol II and the International Committee of the Red Cross’s Commentaries on both – in fact do not “make any reference whatsoever to the term ‘combatant.’” Gherebi, 2009 WL 1068955, at *18. Gherebi correctly observes that “petitioners evidently interpret this lack of protection for ‘combatants’ in non-international armed conflicts to mean that every individual associated with the enemy to any degree in such a conflict must be treated as a civilian.” Id. Gherebi then explains:
The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and [1977] Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be. Id.
This Court agrees that the lack of combatant status in non-international armed conflicts does not, by default, result in civilian status for all, even those who are members of enemy “organizations” like al Qaeda. Moreover, the government’s claimed authority to detain those who were “part of” those organizations is entirely consistent with the law of war principles that govern non-international armed conflicts. Common Article 3, by its very terms, contemplates the “detention” of “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their weapons and those placed hors de combat,” and commands that they be treated “humanely.” Third Geneva Convention, art. 3(1). At a minimum, this restriction establishes that States engaged in non-international armed conflict can detain those who are “part of” enemy armed groups. Gherebi, 2009 WL 1068955, at *19. Similarly, Part IV of Additional Protocol II, in particular Article 13. … Such protections for “civilians” would be superfluous “if every member of the enemy in a non-international armed conflict is a civilian.” Gherebi, 2009 WL 1068955, at *20. The clear implication of Part IV, then, is that Additional Protocol II recognizes a class of individuals who are separate and apart from the “civilian population” – i.e., members of enemy armed groups. Indeed, it makes clear that “[t]hose who belong to armed forces or armed groups may be attacked at any time.” Int’l Comm. of the Red Cross, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1453 (Sandoz et al. eds. 1987) (discussing Article 13 of Additional Protocol II). As for the practical application of these principles, historical examples are few and far between. There are, however, several decisions of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) that have recognized that, in a non-international armed conflict, membership in an armed group makes one liable to attack and incapacitation independent of direct participation in hostilities. …
In sum, then, the Court agrees with Gherebi and hence rejects petitioners’ argument “that the laws of war permit a state to detain only individuals who ‘directly participate’ in hostilities in non-international armed conflicts.” 2009 WL 1068955, at *21. The Court also concludes that the authority claimed by the government to detain those who were “part of … Taliban or al Qaida forces” is consistent with the law of war. Even though this portion of the government’s framework is consistent with the law of war, however, the government’s position cannot be said to reflect customary international law because, candidly, none exists on this issue. See Jean-Marie Henckaerts, 87 Int’l Rev. of the Red Cross 175, 190 (Mar. 2005) (“[I]t is not clear whether members of armed opposition groups are civilians who lose their protection from attack when directly participating in hostilities or whether members of such groups are liable to attack as such.”). Nonetheless, the Court finds that the government’s claimed authority is consistent with, and is not affirmatively prohibited by, the law of war. …
In addition to members of al Qaeda and the Taliban, the government’s detention authority also reaches those who were members of “associated forces.” For purposes of these habeas proceedings, the Court interprets the term “associated forces” to mean “co-belligerents” as that term is understood under the law of war. … [T]he government has the authority to detain members of “associated forces” as long as those forces would be considered co-belligerents under the law of war.
With respect to the criteria to be used in determining whether someone was “part of” the “Taliban or al Qaida or associated forces,” the Court will not attempt to set forth an exhaustive list because such determinations must be made on an individualized basis. But this Court will, by necessity, employ an approach that is more functional than formal, as there are no settled criteria for determining who is a “part of” an organization such as al Qaeda. Cf. Third Geneva Convention, art. 4(A) (identifying characteristics of membership in the armed forces or militia for purposes of prisoner of war status in an international armed conflict). “[M]ere sympathy for or association with an enemy organization does not render an individual a member” of that enemy organization. Gherebi, 2009 WL 1068955, at *21. The key inquiry, then, is not necessarily whether one self-identifies as a member of the organization (although this could be relevant in some cases), but whether the individual functions or participates within or under the command structure of the organization – i.e., whether he receives and executes orders or directions. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 12–17.
[footnotes in original omitted]
In its analysis of the government’s “definitional” framework” providing for the detention of persons who “substantially supported” Taliban or al Qaida forces, the Court stated:
After repeated attempts by the Court to elicit a more definitive justification for the “substantial support” concept in the law of war, it became clear that the government has none. Nevertheless, the government asserted that “substantial support” is intended to cover those individuals “who are not technically part of al-Qaeda,” but who have some meaningful connection to the organization by, for example, providing financing. … Regardless of the reasonableness of this approach from a policy perspective, a detention authority that sweeps so broadly is simply beyond what the law of war will support. … [A]lthough this concept may be attractive from a policy perspective, and indeed could be the basis for the development of future domestic legislation or international law, there is at this time no justification – in the AUMF or the law of war – for such an approach. The law of war permits detention of individuals who were “part of” one of the organizations targeted by the AUMF. That is the outer limit of the Executive’s detention authority as stated in the AUMF and consistent with the law of war. Detaining an individual who “substantially supports” such an organization, but is not part of it, is simply not authorized by the AUMF itself or by the law of war. Hence, the government’s reliance on “substantial support” as a basis for detention independent of membership in the Taliban, al Qaeda or an associated force is rejected. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 18–19.
In its analysis of the government’s “definitional” framework” providing for the detention of any person who has “committed a belligerent act, or has directly supported hostilities” in aid of Taliban or al Qaida forces, the Court stated:
For essentially the same reasons [as were provided in the court’s analysis of the detention of persons who “substantially supported” Taliban or al Qaida forces], the Court also finds that the government’s detention authority does not extend to those individuals who have only “directly supported hostilities.” Although this language received considerably less attention in the briefing and at argument, it suffers from the same deficiency already identified – detaining an individual solely on the basis that he “directly supported hostilities” is inconsistent with the law of war. The government does, however, have the authority to detain “any person who has committed a belligerent act.” And just as the Court will consider evidence relating to “substantial support” of covered organizations in assessing whether an individual was functionally “part of” the organization, so, too, will it consider evidence of “direct support” for hostilities in assessing whether an individual “committed a belligerent act.”
For purposes of these habeas proceedings, the Court interprets the phrase “committed a belligerent act” to cover any person who has directly participated in hostilities. That conclusion is consistent with the law of war. See Additional Protocol II, art. 13(3) (stating that civilians shall not be subject to military force “unless and for such time as they take a direct part in hostilities”); Additional Protocol I, art. 51(3) (same). 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, p. 20.
In conclusion, the Court stated:
As Hamdi foretold, drawing the “permissible bounds” of the government’s detention authority can only truly occur as courts consider the unique facts of each individual case as they are presented. 542 U.S. at 522 n.1. However, the foregoing analysis and interpretation of the government’s authority to detain sets forth some guidance for the parties in that process. After careful consideration, the Court is satisfied that the government’s detention authority is generally consistent with the authority conferred upon the President by the AUMF and the core law of war principles that govern non-international armed conflicts. In those instances where the government’s framework has exceeded that which is permitted by the law of war – specifically with respect to the concept of “support” – the Court rejects such bases for detention. Therefore, the Court concludes that under the AUMF the President has the authority to detain persons that the President determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, and persons who harbored those responsible for those attacks. The President also has the authority to detain persons who are or were part of Taliban or al Qaeda forces or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed (i.e., directly participated in) a belligerent act in aid of such enemy armed forces. 
United States, District Court for the District of Columbia, Hamlily case, Judgment, 19 May 2009, pp. 21–22.
United States of America
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at Guantánamo Bay since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia Circuit affirmed the order of the lower court, stating with regard to the detention powers granted to the US President by Congress:
Al-Bihani’s many arguments present this court with two overarching questions regarding the detainees at the Guantánamo Bay naval base. The first concerns whom the President can lawfully detain pursuant to statutes passed by Congress. …
Al-Bihani challenges the statutory legitimacy of his detention by advancing a number of arguments based upon the international laws of war. …
Before considering these arguments in detail, we note that all of them rely heavily on the premise that the war powers granted by the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)] and other statutes are limited by the international laws of war. This premise is mistaken. There is no indication in the AUMF, the Detainee Treatment Act of 2005, Pub. L. No. 109-148, div. A, tit. X, 119 Stat. 2739, 27 41–43, or the MCA [Military Commissions Act] of 2006 or 2009, that Congress intended the international laws of war to act as extra-textual limiting principles for the President’s war powers under the AUMF. The international laws of war as a whole have not been implemented domestically by Congress and are therefore not a source of authority for U.S. courts. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 111(3)–(4) (1987). Even assuming Congress had at some earlier point implemented the laws of war as domestic law through appropriate legislation, Congress had the power to authorize the President in the AUMF and other later statutes to exceed those bounds. See id § 115(1)(a). Further weakening their relevance to this case, the international laws of war are not a fixed code. Their dictates and application to actual events are by nature contestable and fluid. See id § 102 cmts. b & c (stating there is “no precise formula” to identify a practice as custom and that “[i]t is often difficult to determine when [a custom’s] transformation into law has taken place”). Therefore, while the international laws of war are helpful to courts when identifying the general set of war powers to which the AUMF speaks, see Hamdi [Hamdi v. Rumsfeld, 542 U.S. 507] at 520, their lack of controlling legal force and firm definition render their use both inapposite and inadvisable when courts seek to determine the limits of the President’s war powers. Therefore, putting aside that we find Al-Bihani’s reading of international law to be unpersuasive, we have no occasion here to quibble over the intricate application of vague treaty provisions and amorphous customary principles. The sources we look to for resolution of Al-Bihani’s case are the sources courts always look to: the text of relevant statutes and controlling domestic case law.
Under those sources, Al-Bihani is lawfully detained whether the definition of a detainable person is, as the district court articulated it, “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,” or the modified definition offered by the government that requires that an individual “substantially support” enemy forces. The statutes authorizing the use of force and detention not only grant the government the power to craft a workable legal standard to identify individuals it can detain, but also [in] the application of these definitions. The AUMF authorizes the President to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons.” AUMF § 2(a). The Supreme Court in Hamdi ruled that “necessary and appropriate force” includes the power to detain combatants subject to such force. 542 U.S. at 519. Congress, in the 2006 MCA, provided guidance on the class of persons subject to detention under the AUMF by defining “unlawful enemy combatants” who can be tried by military commission. 2006 MCA sec. 3, § 948a(1). The 2006 MCA authorized the trial of an individual who “engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces).” Id § 948a(1)(A)(i). In 2009, Congress enacted a new version of the MCA with a new definition that authorized the trial of “unprivileged enemy belligerents,” a class of persons that includes those who “purposefully and materially supported hostilities against the United States or its coalition partners.” Military Commissions Act of 2009 (2009 MCA) sec. 1802, §§ 948a(7), 948b(a), 948c, Pub. L. No. 111-84, tit. XVIII, 123 Stat. 2190, 2575– 76. The provisions of the 2006 and 2009 MCAs are illuminating in this case because the government’s detention authority logically covers a category of persons no narrower than is covered by its military commission authority. Detention authority in fact sweeps wider, also extending at least to traditional P.O.W.s, see id § 948a(6), and arguably to other categories of persons. But for this case, it is enough to recognize that any person subject to a military commission trial is also subject to detention, and that category of persons includes those who are part of forces associated with Al Qaeda or the Taliban or those who purposefully and materially support such forces in hostilities against U.S. Coalition partners.
… [T]the facts show Al-Bihani was part of and supported a group – prior to and after September 11 – that was affiliated with Al Qaeda and Taliban forces and engaged in hostilities against a U.S. Coalition partner. Al-Bihani, therefore, falls squarely within the scope of the President’s statutory detention powers. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 5–10.
[footnote in original omitted]
The Court stated the following regarding the appellant’s claim that a cessation of hostilities required his release from detention under international law:
With the government’s detention authority established as an initial matter, we turn to the argument that Al-Bihani must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended.
The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention [1949 Geneva Convention III] art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war. See Ludecke v. Watkins, 335 U.S. 160, 168–70 & n.13 (1948) (“[T]ermination [of a state of war] is a political act.”). Al-Bihani urges the court to ignore Ludecke’s controlling precedent because the President in that case had pronounced that a war was ongoing, whereas in this case the President has made no such pronouncement. We reject Al-Bihani’s entreaty. A clear statement requirement is at odds with the wide deference the judiciary is obliged to give to the democratic branches with regard to questions concerning national security. In the absence of a determination by the political branches that hostilities in Afghanistan have ceased, Al-Bihani’s continued detention is justified. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Judgment, 5 January 2010, pp. 12–13.
In the Al-Bihani case in August 2010, the US Court of Appeals for the District of Columbia Circuit issued an en banc statement, denying a request for the court to rehear the case en banc. The statement, which referred to the obiter dicta nature of the 5 January 2010 judgment with respect to the role of international law-of-war principles in interpreting the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224, 224 (2001)], stated:
We decline to en banc this case to determine the role of international law-of-war principles in interpreting the AUMF because, as the various opinions issued in the case indicate, the panel’s discussion of that question is not necessary to the disposition of the merits. See Al–Bihani v. Obama, 590 F.3d 866, 871, 873–74 (D.C.Cir.2010) (panel opinion); id. at 883–85 (Williams, J., concurring in the judgment); Al–Bihani v. Obama, No. 09–5051, slip op. at 1 (D.C.Cir. Aug. 31, 2010) (Kavanaugh, J., concurring in the denial of rehearing en banc); see also Gov’t’s Resp. to Pet. for Reh’g and Reh’g En Banc at 1–2 (stating that the dispute over the role of the law of war does not “change[ ] the outcome”). 
United States, Court of Appeals for the District of Columbia Circuit, Al-Bihani case, Statement, 31 August 2010, p. 1.
United States of America
In the Awad case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit affirmed the decision of the lower court that the petition be denied. The Court stated:
Determining whether [the appellant] is “part of” al Qaeda is a mixed question of law and fact. Whether our review of the district court’s finding on this question is de novo or for clear error does not matter in this case because the evidence is so strong. Simply recounting the evidence establishes that under either standard of review, the district court’s conclusion that [the appellant] was “part of” al Qaeda was not erroneous. [The appellant] has not come close to meeting his burden of showing reversible error in the district court’s finding that [the appellant] was “part of” al Qaeda at Mirwais Hospital during December 2001.
[The appellant] challenges three of the district court’s legal holdings. These we review de novo. See Al–Bihani, 590 F.3d at 870. First, [the appellant] challenges the district court’s holding that the government must prove its authority to continue to detain him by a preponderance of the evidence. He argues that the government has to meet its burden by clear and convincing evidence. He is incorrect. We have already explicitly held that a preponderance of the evidence standard is constitutional in evaluating a habeas petition from a detainee held at Guantánamo Bay, Cuba. See Al–Bihani, 590 F.3d at 878 (“Our narrow charge is to determine whether a preponderance standard is unconstitutional. Absent more specific and relevant guidance, we find no indication that it is.”). The Al–Bihani holding follows the Supreme Court’s guidance to lower courts in the Hamdi plurality. See Hamdi, 542 U.S. at 534, 124 S.Ct. 2633 (“Thus, once the Government puts forth credible evidence that the habeas petitioner meets the enemy-combatant criteria, the onus could shift to the petitioner to rebut that evidence with more persuasive evidence that he falls outside the criteria. A burden-shifting scheme of this sort would meet the goal of ensuring that the errant tourist, embedded journalist, or local aid worker has a chance to prove military error while giving due regard to the Executive once it has put forth meaningful support for its conclusion that the detainee is in fact an enemy combatant.”). … [The appellant] seems to argue that there is some uncertainty in the evidentiary standard. Lest there be any further misunderstandings, let us be absolutely clear. A preponderance of the evidence standard satisfies constitutional requirements in considering a habeas petition from a detainee held pursuant to the AUMF [Authorization for Use of Military Force, Pub. L. No. 107-40, § 2(a), 115 Stat. 224 (2001)].
[The appellant] next argues that the district court erred in denying his petition without a specific factual finding that [the appellant] would pose a threat to the United States and its allies if he were released. Again, Al-Bihani forecloses this argument. Al-Bihani makes plain that the United States’s authority to detain an enemy combatant is not dependent on whether an individual would pose a threat to the United States or its allies if released but rather upon the continuation of hostilities. 590 F.3d at 874. [The appellant] again attempts to insert uncertainty into this court’s prior holding where there is none. Whether a detainee would pose a threat to U.S. interests if released is not at issue in habeas corpus proceedings in federal courts concerning aliens detained under the authority conferred by the AUMF.
[The appellant]’s last challenge is that it is not enough that he was found to be “part of” al Qaeda. He argues that there must be a specific factual finding that he was part of the “command structure” of al Qaeda. There is no such requirement under the AUMF. See AUMF (“That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations, or persons.”). Nowhere in the AUMF is there a mention of command structure.
The distinction here is between defining what is necessary and what is sufficient. If the government can establish by a preponderance of the evidence that a detainee was part of the “command structure” of al Qaeda, this satisfies the requirement to show that he was “part of” al Qaeda. But there are ways other than making a “command structure” showing to prove that a detainee is “part of” al Qaeda. For example, if a group of individuals were captured who were shooting at U.S. forces in Afghanistan, and they identified themselves as being members of al Qaeda, it would be immaterial to the government’s authority to detain these people whether they were part of the “command structure” of al Qaeda. Once [the appellant] was “part of” al Qaeda by joining the al Qaeda fighters behind the barricade at the hospital, the requirements of the AUMF were satisfied. See AlBihani, 590 F.3d at 872 (holding that under the AUMF, a person may be lawfully detained if, inter alia, he was “part of” al Qaeda forces). [The appellant] points us to no authority from this court or the Supreme Court that would counsel a different decision. 
United States, Court of Appeals for the District of Columbia Circuit, Awad case, Judgment, 2 June 2010, pp. 10–12.
[footnote in original omitted]
The Court concluded:
[The appellant] points us to no legal authority for the proposition that he must be a part of al Qaeda’s “command structure” to be detained. Accordingly, we affirm the district court’s denial of his petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Awad case, Judgment, 2 June 2010, p. 12.
United States of America
In the Bensayah case in June 2010, in which a detainee at Guantánamo Bay, Cuba, appealed a district court’s denial of his petition for a writ of habeas corpus, the US Court of Appeals for the District of Columbia Circuit remanded the case to the lower court for it to determine if the appellant was “functionally” part of al Qaeda and therefore lawfully detained under the Authorization for Use of Military Force (AUMF). The Court stated:
[The appellant], an Algerian citizen, was arrested by the Bosnian police on immigration charges in late 2001. He … and five other Algerian men arrested in Bosnia … were then turned over to the United States Government and transported to the U.S. Naval Station at Guantánamo Bay, where they have been detained since January 2002.
In 2004 [the appellant] and the five other detainees petitioned the district court for writs of habeas corpus. Although their petitions were originally dismissed, Khalid v. Bush, 355 F.Supp.2d 311, 314 (D.D.C. 2005), they were reinstated after the Supreme Court held that detainees at Guantánamo Bay are constitutionally “entitled to the privilege of habeas corpus to challenge the legality of their detention,” Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 2262, 171 L.Ed.2d 41 (2008).
In August 2008 the district court entered a case management order (CMO) establishing the procedures that would govern this case. See CMO, Boumediene v. Bush, No. 04–1166(RJL) (D.D.C. Aug. 27, 2008). …
The Government claimed authority to detain the six men pursuant both to the AUMF [Pub.L. 107–40, § 2(a), 115 Stat. 224, 224 (2001)] and to the President’s inherent powers as Commander in Chief. …
The district court [granted habeas to each of the other five petitioners, but] denied [the appellant]’s petition because it determined “the Government has met its burden by providing additional evidence that sufficiently corroborates its allegations from this unnamed source that [the appellant] is an al-Qaida facilitator.” [F.Supp.2d 191] Id. at 198. The corroborative evidence provided by the Government is of three sorts: (1) evidence linking [the appellant] to al Qaeda, and specifically to a “senior al-Qaida facilitator”; (2) evidence of Bensayah’s history of travel “between and among countries using false passports in multiple names”; and (3) evidence creating “sufficient doubt as to [the appellant]’s credibility.” Id.
… Because it held [the appellant]’s detention was lawful based upon his support of al Qaeda, the court did not go on to consider whether he was a “member” of al Qaeda or whether his detention was lawful on the alternative ground that he was “part of” that organization.
There have been three developments since the district court’s decision. First, the Government has eschewed reliance upon a portion of the evidence that the “senior al-Qaida facilitator” with whom [the appellant] allegedly had contact was in fact a senior al Qaeda facilitator. Second, the Government has changed its position concerning the source and scope of its authority to detain [the appellant]. Whereas the Government had previously claimed authority to detain [the appellant] based upon both the AUMF and the President’s constitutional authority as Commander in Chief, it now relies solely upon the AUMF. Third, the Government has abandoned its argument that [the appellant] is being detained lawfully because of the support he rendered to al Qaeda – the sole basis upon which the district court denied [the appellant]’s petition. The Government now contends that [the appellant]’s detention is lawful only because he was “part of” al Qaeda.
… [W]e have made clear elsewhere that the AUMF authorizes the Executive to detain, at the least, any individual who is functionally part of al Qaeda. Barhoumi, 432 (detainee “was ‘part of an al-Qaida-associated force and therefore properly detained pursuant to the AUMF’”); Awad, at 11 (“Once [a petitioner is shown to be] ‘part of al Qaeda … the requirements of the AUMF [are] satisfied”); Al–Bihani, 590 F.3d at 872–74.
… [I]t is impossible to provide an exhaustive list of criteria for determining whether an individual is “part of” al Qaeda. That determination must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization. That an individual operates within al Qaeda’s formal command structure is surely sufficient but is not necessary to show he is “part of” the organization; there may be other indicia that a particular individual is sufficiently involved with the organization to be deemed part of it, see Awad, at 11 (“there are ways other than making a ‘command structure’ showing to prove that a detainee is ‘part of’ al Qaeda”), but the purely independent conduct of a freelancer is not enough.
The Government argues it is authorized by the AUMF to detain [the appellant] solely on the ground he was functionally a member or “part of” al Qaeda. The evidence upon which the district court relied in concluding [the appellant] “supported” al Qaeda is insufficient, however, to show he was part of that organization. Accordingly, we reverse the judgment of the district court and remand the case for the district court to hear such evidence as the parties may submit and to decide in the first instance whether [the appellant] was functionally part of al Qaeda. 
United States, Court of Appeals for the District of Columbia Circuit, Bensayah case, Judgment, 28 June 2010, pp. 418–423, 427–429 and 431–432.
[footnote in original omitted]
United States of America
In the Al-Adahi case in July 2010, in which the government appealed a district court’s granting of a Guantánamo Bay detainee’s habeas corpus writ, the US Court of Appeals for the District of Columbia Circuit reversed the lower court’s decision and remanded for that court to deny the detainee’s petition for habeas corpus. The Court of Appeals stated:
[The defendant] filed his habeas corpus petition in 2005. In 2008 the Supreme Court ruled that despite statutes depriving the federal courts of jurisdiction to hear habeas petitions from Guantánamo detainees, the Suspension Clause of the Constitution at least preserved the writ as it existed in 1789. Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171 L.Ed.2d 41 (2008).
[The defendant]’s habeas petition presented the question whether he was part of al-Qaida and therefore justifiably detained under the Authorization for Use of Military Force [AUMF], Pub.L. No. 107–40, 115 Stat. 224 (2001). The district court considered the [petition] … The court found “no reliable evidence in the record that Petitioner was a member of al-Qaida” and ruled that he should be released. Al-Adahi v. Obama, No. 05–280, 2009 WL 2584685 *16 (D.D.C. Aug.21, 2009) (“Mem.Op.”). The government brought this appeal and [the defendant] cross-appealed.
The Authorization for Use of Military Force empowers the President “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Pub.L. No. 107–40, § 2(a). “[A]ll necessary and appropriate force” includes the power to capture and detain those described in the congressional authorization. Hamdi v. Rumsfeld, 542 U.S. 507, 519, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004). The government may therefore hold at Guantánamo and elsewhere those individuals who are “part of” al-Qaida, the Taliban, or associated forces. See Awad v. Obama, 608 F.3d 1, 11 (D.C.Cir.2010); Al–Bihani v. Obama, 590 F.3d 866, 872, 874–75 (D.C.Cir.2010).
Whether [the defendant] fit that description was and is the ultimate issue. The obvious preliminary question is what sort of factual showing does the government, or the detainee, have to make? In this court the question is open. Al–Bihani held that the government does not have to prove the legality of detention “beyond a reasonable doubt” or by “clear and convincing evidence.” See 590 F.3d at 878; see also Awad, 608 F.3d at 10–11. Al–Bihani also decided that the preponderance-of-the-evidence standard is constitutionally permissible. 590 F.3d at 878. But we have yet to decide whether that standard is required. Id. at 878 n. 4; see also Awad, 608 F.3d at 11 n. 2.
The district judge in this case adopted the preponderance standard. Mem. Op., 2009 WL 2584685 at *1. Other district judges in our circuit have done the same. See, e.g., Awad, 608 F.3d at 3. Their rationale is unstated. After Boumediene, the district judges met in executive session and decided to coordinate proceedings in Guantánamo habeas cases. See In re Guantánamo Bay Detainee Litig., 577 F.Supp.2d 309, 310 (D.D.C.2008). On November 6, 2008, the coordinating judge issued a Case Management Order. In re Guantánamo Bay Detainee Litig., Misc. No. 08–442, 2008 WL 4858241 (D.D.C. Nov. 6, 2008). The Order stated, among other things, that the government should bear the burden of proving by a preponderance of the evidence that the petitioner’s detention is lawful. Order at 4. In support, the Order cited Boumediene. But Boumediene held only that the “extent of the showing required of the Government in these cases is a matter to be determined.” 553 U.S. 723, 128 S.Ct. 2229, 2271, 171 L.Ed.2d 41
… [W]e doubt, for the reasons stated above, that the Suspension Clause requires the use of the preponderance standard, we will not decide the question in this case. As we did in Al-Bihani, we will assume arguendo that the government must show by a preponderance of the evidence that [the defendant] was part of al-Qaida. 590 F.3d at 878 & n. 4.
… [T]he district court wrongly “required each piece of the government’s evidence to bear weight without regard to all (or indeed any) other evidence in the case. This was a fundamental mistake that infected the court’s entire analysis.” Br. of Appellants at 42.
Having tossed aside the government’s evidence, one piece at a time, the court came to the manifestly incorrect – indeed startling – conclusion that “there is no reliable evidence in the record that Petitioner was a member of al-Qaida and/or the Taliban.” Mem. Op. at *16. When the evidence is properly considered, it becomes clear that [the defendant] was – at the very least –more likely than not a part of al-Qaida. And that is all the government had to show in order to satisfy the preponderance standard. Awad, 608 F.3d at 10;
… [T]he district court clearly erred in its treatment of the evidence and in its view of the law. Cf. Barhoumi v. Obama, 609 F.3d 416, 423–24 (D.C.Cir.2010); Awad, 608 F.3d at 10. The court’s conclusion was simply not a “permissible view [ ] of the evidence.” See Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573–74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). And it reached this conclusion through a series of legal errors, as we have discussed. … In all there can be no doubt that [the defendant] was more likely than not part of al-Qaida. We therefore reverse and remand with instructions to the district court to deny [the defendant]’s petition for a writ of habeas corpus. 
United States, Court of Appeals for the District of Columbia Circuit, Al-Adahi case, Judgment, 13 July 2010, pp. 1103–1106 and 1111.
United States of America
In the Salahi case in November 2010, in which the US Government appealed a decision of the district court that had granted a writ of habeas corpus to the appellee – a detainee at Guantánamo Bay, Cuba – the US Court of Appeals for the District of Columbia vacated the ruling and remanded the case to the District Court for further factual findings. The Court stated:
Enacted just seven days after the September 11 terrorist attacks, the Authorization for Use of Military Force (AUMF) empowers the President of the United States to “use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” Pub. L. No. 107–40, § 2(a), 115 Stat. 224, 224 (2001) … We have held that the “necessary and appropriate force” authorized by the AUMF includes the power to detain individuals who are “part of” al-Qaida, the organization that perpetrated the September 11 attacks. See Bensayah, 610 F.3d at 724–25.
After reviewing all the evidence, the district court … concluded that [the appellant] “was an al-Qaida sympathizer” and “perhaps a ‘fellow traveler.’” [Salahi v. Obama, 710 F.Supp.2d]. at 16. It also found that [the appellant] “was in touch with al-Qaida members” and provided them with “sporadic support.” Id. Nonetheless, the court concluded, Salahi was not “part of” al-Qaida at the time of his capture because the government had failed to prove that after leaving Afghanistan in 1992, he continued receiving and executing orders within al-Qaida’s “command structure.” Id. at 5, 15–16.
[T]he relevant inquiry is whether [the appellant] was “part of” al-Qaida when captured.
[T]the district court’s approach [to determining whether an individual is part of al-Qaida] is inconsistent with our recent decisions in Awad and Bensayah, which were issued after the district court granted [the appellant]’s habeas petition. These decisions make clear that the determination of whether an individual is “part of” al-Qaida “must be made on a case-by-case basis by using a functional rather than a formal approach and by focusing upon the actions of the individual in relation to the organization.” Bensayah, 610 F.3d at 725. Evidence that an individual operated within al-Qaida’s command structure is “sufficient but is not necessary to show he is ‘part of’ the organization.” Id.; see also Awad, 608 F.3d at 11. “[T]here may be other indicia that a particular individual [was] sufficiently involved with the organization to be deemed part of it.” Bensayah, 610 F.3d at 725. …
As we explained in Bensayah, however, “the purely independent conduct of a freelancer is not enough” to establish that an individual is “part of” al-Qaida. 610 F.3d at 725.
Because the district court, lacking the guidance of these later decisions, looked primarily for evidence that [the appellant] participated in al-Qaida’s command structure, it did not make definitive findings regarding certain key facts necessary for us to determine as a matter of law whether [the appellant] was in fact “part of” al-Qaida when captured. See Barhoumi, 609 F.3d at 423
[W]e think it appropriate to reiterate this Court’s admonition in Al-Adahi [Al-Adahi v. Obama, 613 F.3d 1102], also decided after the district court issued its decision in this case, that a court considering a Guantánamo detainee’s habeas petition must view the evidence collectively rather than in isolation. [Id at 1105–06. Merely because a particular piece of evidence is insufficient, standing alone, to prove a particular point does not mean that the evidence “may be tossed aside and the next [piece of evidence] may be evaluated as if the first did not exist.” Id. at 1105. The evidence must be considered in its entirety in determining whether the government has satisfied its burden of proof.
The President seeks to detain [the appellant] on the grounds that he was “part of” al-Qaida at the time he was captured. Because additional fact-finding is required to resolve that issue under this circuit’s evolving case law, we vacate and remand for further proceedings consistent with this opinion. 
United States, Court of Appeals for the District of Columbia Circuit, Salahi case, Judgment, 5 November 2010, pp. 747 and 750–753.
Afghanistan
In 2012, the Office of the President of Afghanistan issued a press release entitled “Judicial meeting assesses administrative detention in the light of Afghan laws”, which stated:
The judicial meeting chaired by President Hamid Karzai discussed and assessed various issues including continued detention of over 600 Afghan inmates by US forces, additional Protocol II to the [1949] Geneva Convention[s] and administrative detention in the light of Afghan laws.
At the meeting held in the Presidential Palace, it was noted that based on Article 7 of the Afghan Constitution, the State of Islamic Republic of Afghanistan shall abide by the international treaties and conventions that it has signed.
Hence, Afghanistan fully observes and respects the additional Protocol II to the Geneva Convention that has enshrined in its provisions, the principles of human rights and treating prisoners humanely.
It was also stressed that the administrative detention is not foreseen in the Afghan laws; therefore Afghan nationals could only be deprived of their liberty in the light of existing laws of the country.
According to the MoU signed between Afghanistan and the United States, foreign forces do not have the right to detain Afghan citizens or run prisons in Afghan territory. 
Afghanistan, Office of the President, “Judicial meeting assesses administrative detention in the light of Afghan laws”, Press Release, 17 September 2012.
Australia
On 4 October 2005, in response to a Question on Notice in the Senate regarding Australia’s policy on rendition: “Does the Government approve or disapprove of the United States of America’s policy of rendition, that is, kidnapping people for transfer to, and interrogation in, third countries which permit torture”, the Minister representing the Attorney-General responded: “The Government’s policy is that persons should only be transferred to another country through recognised legal means or where legal authority exists, such as extradition.” 
Australia, Senate, Minister representing the Attorney-General, Question on Notice: Rendition Policy, Hansard, 4 October 2005, p.86.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
No one may be detained, arrested or deprived of their liberty in any other way, except in the cases and in the manner specified below:
(a) Deprivation of a person’s liberty following his or her conviction by a duly authorized court;
(b) Lawful arrest or detention of a person for failure to comply with the lawful order of a court or for the purpose of ensuring compliance with an obligation prescribed by law;
(c) Lawful arrest or detention of persons for the purpose of their handover to a competent judicial authority where there is reasonable suspicion that such persons have committed an offence or a justifiable need to prevent them from absconding after perpetration of the offence. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 37.
Canada
In a report to Parliament in 2007 on Canada’s mission in Afghanistan, the Government of Canada stated: “With Canadian assistance, Afghanistan is … working to increase its capacity to comply with, and report on, its human rights treaty obligations, and to develop procedures aimed at preventing arbitrary arrest and detention.” 
Canada, Canada’s Mission in Afghanistan: Measuring Progress, Report to Parliament, Government of Canada, 26 February 2007, p. 12.
Canada
In 2009, in its third and fourth periodic reports to the Committee on the Rights of the Child, Canada stated under the heading “Optional Protocol on the involvement of children in armed conflict”: “All persons apprehended and detained by the Canadian Forces in a theatre of hostilities are treated … in a manner consistent with international legal standards.” 
Canada, Third and fourth periodic reports to the Committee on the Rights of the Child, 4 January 2012, UN Doc. CRC/C/CAN/3-4, submitted 20 November 2009, § 110.
Chad
In 2007, in its initial report to the Committee against Torture, Chad stated:
10. Since the early years of independence the Republic of Chad has had a long tradition of secret detentions … fed by intercommunal conflicts and bloody internecine civil wars in the struggle for power.
11 … [I]llegal arrests [and] arbitrary detentions … are prohibited and severely punished under the 1967 Criminal Code. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 10–11.
Chad further stated:
The Commission of Inquiry of the Ministry of Justice into the crimes and abuses of power of former President Habré and his accomplices
113. The Commission of Inquiry was created by Decree No. 014/P.CE/CJ/90 of 29 December 1990 at the end of Hissène Habré’s dictatorship and entrusted with the task of assessing the reign of terror that had cost so many human lives.
114. Placed under the authority of the Ministry of Justice, the Commission of Inquiry’s tasks were to:
- Investigate the … detentions …
- Determine the amount of the contribution to the war effort and its use as of 1986. 
Chad, Initial report to the Committee against Torture, 22 September 2008, UN Doc. CAT/C/TCD/1, submitted 4 September 2007, §§ 113–114.
Chad
In 2009, in its written replies to the issues raised by the Human Rights Committee with regard to Chad’s initial report, Chad stated:
52. Officially, there are no secret places of detention. The Criminal Code makes it a requirement to report illegal detention: “Public officials responsible for carrying out administrative or judicial police functions who refuse or neglect to respond to a lawful request to report illegal or arbitrary detentions, i.e. in any other place, and cannot prove that they have reported it to a higher authority, shall be liable to imprisonment for one month to one year and required to pay damages.”
53. Nevertheless, a very small number of cases of secret detention came to light during the events of 2 and 3 February 2008 [clashes between governmental forces and armed groups], when the State institutions were destabilized. Immediately on return to the normal functioning of the administration, however, that situation was remedied. 
Chad, Written replies to the Human Rights Committee concerning the list of issues to be taken up in connection with the initial report of Chad, 20 January 2009, UN Doc. CCPR/C/TCD/Q/1/Add.1, submitted 12 January 2009, §§ 52–53.
Chile
In 2000, during the consideration of the fourth periodic report of Chile before the Human Rights Committee, a representative of Chile stated that “on July 1, 1998, Law No. 19,567 … [has] been enacted, … abolishing detention on suspicion”. 
Chile, Statement by the delegation of Chile before the Human Rights Committee during the consideration of the fourth periodic report of Chile, 3 March 2000, UN Doc. CAT/C/SR.1733, § 26.
China
In 2005, in a white paper on “China’s Progress in Human Rights in 2004”, China stated:
Since May 2004, the Supreme People’s Procuratorate has carried out a special campaign to severely deal with criminal cases involving government functionaries’ infringement upon human rights by misusing their powers, focusing on cases of illegal detention and search, extorting confessions by torture, gathering evidence with violence, [and] abusing people in custody. 
China, White Paper of the Government of the People’s Republic of China: China’s Progress in Human Rights in 2004, April 2005.
Côte d’Ivoire
In 2009, in its report to the UN Human Rights Council, Côte d’Ivoire stated: “[T]he political and military crises faced by Côte d’Ivoire since 1999, exacerbated by the war which broke out in September 2002, have had many grave consequences in the political, economic and social spheres.” 
Côte d’Ivoire, Report to the UN Human Rights Council, 3 September 2009, UN Doc. A/HRC/WG.6/6/CIV/1, § 136.
Côte d’Ivoire also stated:
83. According to article 22 of the Constitution, nobody may be arbitrarily detained.
84. However as a result of the crisis from which Côte d’Ivoire is gradually emerging, this principle has often been violated, a situation brought about by malfunctioning of the judicial police unit[s] or the fact that the State had ceased to be present in the central, northern and western areas. 
Côte d’Ivoire, Report to the UN Human Rights Council, 3 September 2009, UN Doc. A/HRC/WG.6/6/CIV/1, §§ 83–84.
Côte d’Ivoire
In 2013, in its initial report to the Human Rights Committee, Côte d’Ivoire stated:
211. The National Commission of Inquiry created by Decree No. 2011-176 of 20 July 2011 to investigate violations of human rights and public freedoms in the aftermath of the presidential election held on 31 October and 28 November 2010 was given the task of conducting non-judicial investigations into breaches of human rights and international humanitarian law in the period from 31 October 2010 to 15 May 2011.
212. The Commission submitted its report to the country’s President in August 2012. …
213. … The report also identifies 3,248 cases of “violations of the right to life”, 8,141 cases of “violence to the person”, 345 cases of “torture”, 194 cases of “rape”, 265 “forced disappearances” and 260 cases of “arbitrary detention”. 
Côte d’Ivoire, Initial report to the Human Rights Committee, 21 May 2013, UN Doc. CCPR/C/CIV/1, submitted 19 March 2013, §§ 211–213.
Democratic Republic of the Congo
In 2008, a training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, including war crimes, was adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo. When explaining the constitutive elements of crimes, the training manual states:
Actus reus … describes the prohibited conduct which is adopted by the accused … In certain circumstances, the omission of an act which a person was legally obliged to carry out may constitute the actus reus of a crime. For example, the commander of a camp who continues to unlawfully detain civilians, while he has the power to release them, may be convicted for crimes resulting from the failure to exercise such power. 
Democratic Republic of the Congo, Training manual by the Prosecutor at the Military High Court for magistrates on techniques for investigating sexual crimes, adopted as part of the Programme on Investigating Sexual Crimes of the Democratic Republic of the Congo, Military Justice seminar, 2008, p. 8.
Djibouti
In 2010, in its initial report to the Committee against Torture, Djibouti stated:
46. Following independence in 1977, Djibouti experienced a difficult period of internal tension, which led to a visible, steady rise in violations of human rights and individual freedoms. This state of affairs reached its height during the civil war between government forces and the armed opposition of the Front pour la restauration de l’unité et de la démocratie [Front for the restoration of unity and democracy] (FRUD).
47. With the signing of [the] peace agreement between the warring parties in 1994 and again in 2001, the human rights situation improved dramatically. …
50. … Efforts [have been taken] to eliminate arbitrary arrests in police stations, military police barracks and army and other camps, through a policy of staff training and awareness raising on human rights. 
Djibouti, Initial report to the Committee against Torture, 18 January 2011, UN Doc. CAT/C/DJI/1, submitted 21 July 2010, §§ 46–47 and 50.
Djibouti
In 2011, in the History and Geography Textbook for 9th Grade, Djibouti’s Ministry of National Education and Vocational Training, under the heading “[O]ffences related to violations of humanitarian law”, listed “unlawful detention of civilians”. 
Djibouti, Ministry of National Education and Vocational Training, History and Geography Textbook for 9th Grade, 2011, p. 210.
Finland
In 2003, in its fifth periodic report to the Human Rights Committee, Finland stated:
131. Section 7, subsection 1, of the Constitution further guarantees the right to liberty and security of person, thus specifically affording protection against unlawful and arbitrary deprivation of liberty and violations of the integrity of person. Protection against such unlawful acts has traditionally been afforded by the provisions of the Penal Code. The provision of the Constitution, however, also guarantees the right to the liberty and security of person vis-à-vis authorities. At the same time, the provision requires that the State take legislative measures to provide protection against violations of the right to liberty and security of person committed by others.
132. The afore-mentioned guarantee was included in section 7, subsection 1, in order for the provision to be in conformity with Article 9 of the Covenant and Article 5 of the European Convention on Human Rights. The fact that the right to liberty and security of person is specifically mentioned underlines the obligation of authorities to take positive measures in order to protect members of society against offences and other unlawful acts, be the offenders persons exercising public powers or private individuals. The provision also requires measures to protect the rights of victims of crime.
133. Under the Finnish Constitution, no arbitrary or unlawful interference with the integrity of person or deprivation of liberty is allowed. A punishment entailing deprivation of liberty may only be imposed by a court of law. The lawfulness of any deprivation of liberty may also be challenged before a court of law. The Constitution also requires protection of the rights of persons deprived of their liberty. The purpose has been to ensure that those rights are guaranteed by law as required, inter alia, by international human rights conventions.
134. By way of derogation from the technique used in the European Convention on Human Rights, the Finnish Constitution does not contain any list of acceptable grounds of deprivation of liberty. Partly for this reason has it been necessary to provide for an explicit prohibition of arbitrary deprivation of liberty. It also restricts the possibility of Parliament to enact provisions on acceptable grounds of deprivation of liberty and ensures access to legal remedies in respect of deprivation of liberty. The same applies to any interference with the integrity of person. For example an order on the involuntary treatment of a mentally ill patient (deprivation of liberty) or any physical restraint on him or her during the treatment must satisfy the requirements set forth in the Constitution. The Mental Health Act contains provisions designed to ensure this.
135. According to the Constitution, any punishment entailing deprivation of liberty shall be ordered by a court of law. The provision covers any deprivations of liberty considered punishments and its scope of application is thus wider than the relevant provisions of the Penal Code. 
Finland, Fifth periodic report to the Human Rights Committee, 24 July 2003, UN Doc. CCPR/C/FIN/2003/5, submitted 17 June 2003, §§ 131–135.
Georgia
In 2009, the Parliament of Georgia issued a statement in which it noted the “[r]ecent intensification of unlawful actions by the Russian Federation, namely, kidnapping of Georgian civilians from areas adjacent to the occupied territories and their unlawful detention”. 
Georgia, Statement of the Parliament of Georgia on the increasing frequency of unlawful actions by Russia in the territory of Georgia, 16 December 2009, § 1.
Georgia
In 2012, in its fourth periodic report to the Human Rights Committee, Georgia stated:
3. During the reporting period, the Government of Georgia has been consistently continuing its policy aimed at ensuring full enjoyment of the rights provided in the Covenant for the entire State population. To this end, the obstacles of outstanding gravity were imposed by the war with the Russian Federation in August 2008 and subsequent occupation of two regions – Abkhazia, Georgia and the Tskhinvali region/South Ossetia, Georgia. From the early 2008, the security and human rights situation in the mentioned regions tangibly aggravated … The terrorizing and discriminatory acts included, but were not limited to the occasional incidents of armed attacks on the ethnic Georgian villages [and] instances of arbitrary detention … of their residents …
4. The discriminatory policy of the Russian Federation and its proxies against the remaining ethnic Georgians not only lasted, but intensified significantly in the aftermath of the Russia-Georgia 2008 war. The civilian population residing in the occupied territories continues to be deprived of the minimal safeguards for the protection of their rights provided by the international conventions … [I]llegal detentions for crossing the so-called “state border” … – these and other criminal acts occur on a daily basis. 
Georgia, Fourth periodic report to the Human Rights Committee, 1 November 2012, UN Doc. CCPR/GEO/4, submitted 25 June 2012, §§ 3–4.
Georgia
In 2014, in its fourth periodic report to the Committee on the Rights of the Child, Georgia stated:
Due to Russia’s occupation of Tskhinvali Region/South Ossetia and Abkhazia[,] Georgia has been prevented from the opportunity to ensure protection of human rights, including children’s rights in th[ose] parts of the country. Serious facts of discriminations and human rights violations have been reported by numerous … reputable international organizations, committed predominantly against population of Georgian origin. … People living in adjacent areas are arbitrar[il]y arrested and detained by illegal armed groups and Russian military forces. 
Georgia, Fourth periodic report to the Committee on the Rights of the Child, 28 June 2016, UN Doc. CRC/C/GEO/4, submitted 11 December 2014, § 47.
Germany
In 2005, in a reply to a question by a Member of the Bundestag (Lower House of Parliament), a German Minister of State, Federal Foreign Office, stated:
… from the start, UN Security Council resolution 1244 has authorized the military security presence in Kosovo also to take persons into custody, in the fulfillment of their mandate. The KFOR Commander issued the corresponding detention directives.
According to the currently applicable directive, the Detention Directive of 12 July 2004, persons may only be arrested if they are a danger to KFOR or a safe environment in Kosovo and if civilian authorities are unable or unwilling to take on the responsibility regarding these security problems. This provision also takes into account the fact that by now UNMIK has introduced a provisional civilian criminal justice system in Kosovo.
The general line is to release persons as quickly as possible. The Detention Directive of 12 July of last year, already mentioned, provides in cases of arrest, as a principle, a duration of detention of 72 hours. Only the KFOR Commander himself can order an additional duration of detention of up to 30 days and, if he regards it as necessary, extend it by, respectively, further 30 days. Unlimited detention is not to be envisaged. It might also interest you that currently – i.e. as of 13 December of this year – no persons are detained in the framework of the use of Camp Bondsteel as the seat of a KFOR detention facility. 
Germany, Bundestag, Stenographic Report, 7th Sitting, Berlin, Wednesday, 14 December 2005, Reply by Minister of State, Federal Foreign Office, Plenarprotokoll 16/7, 14 December 2005, pp. 369–370.
Germany
In 2006, in a reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Suspicion of illegal practices in the US ‘Military Confinement Center’ in Mannheim”, Germany’s Federal Government wrote:
4. Are US military authorities permitted to detain foreign prisoners of war or, according to the US definition, “enemy combatants” in the MFC [Military Confinement Center in Mannheim] or comparable installations in Germany, and if yes, on what legal basis?
The detention of foreign prisoners of war by US military authorities in US detention institutions on German territory is permissible only with the consent of the Federal Government.
5. Is it correct that in 1999 the Federal Government permitted the detention of a Yugoslav national in the MFC, the US military authorities, however, had detained at least two Yugoslav nationals?
6. If question 5 is answered in the positive:
a) On what legal basis and because of what accusation did the Federal Government permit the detention of a Yugoslav national?
b) How does the Federal Government assess the circumstance that the US military authorities had detained a Yugoslav national without legal basis, and what consequences does the Federal Government draw from this?
Joint reply to question 5 and question 6 a and b:
In 1999, the United States, with the consent, or approval, of the Federal Government, detained two Yugoslav soldiers, whom they had arrested in the context of the Kosovo conflict, as prisoners of war in Germany. After a few weeks, with the involvement of the International Committee of the Red Cross, the prisoners were released from their detention as prisoners of war and were set free at the Hungarian-Yugoslav border.
The legal basis of the detention of a captured combatant as prisoner of war is general public international law, according to which a party to an international armed conflict is allowed to detain captured combatants of the other side until the end of the conflict, in order to prevent them from again participating in the conflict. In this context, a third State can consent to the detaining power detaining a prisoner of war on the territory of that third State. Details of the legal status of prisoners of war are regulated in Geneva Convention III relative to the Treatment of Prisoners of War of 12 August 1949.
7. What possibilities does the Federal Government have to examine compliance with human rights standards in US military installations in Germany, and are unannounced inspections, for example by public prosecutor offices, part of these possibilities?
According to paragraph 4bis, letter a of the Protocol of Signature to Article 53 of the Supplementary Agreement to the NATO Status of Forces Agreement, the authorities of a force grant the competent German authorities at federal, Land and local level all reasonable assistance necessary to safeguard German interests, including access to accommodation after prior notification. Examining compliance with human rights standards in US military installations belongs to the safeguarding of German interests. In emergencies and where there is danger in delay, the authorities of the force, according to the provision noted above, make immediate access possible without prior notification. 
Germany, Bundestag, Reply by the Federal Government to the Minor Interpellation by the Members Ulla Jelpke, Petra Pau, Wolfgang Gehrcke, further Members and the Parliamentary Group DIE LINKE – BT-Drs. 16/3671, Suspicion of illegal practices in the US “Military Confinement Center” in Mannheim, BT-Drs. 16/3904, 15 December 2006, pp. 3–4.
Germany
In 2007, in a reply to a minor interpellation in the Bundestag (Lower House of Parliament) entitled “Basic Law and international law in deployments abroad of the Federal Armed Forces: Treatment of persons taken into custody”, Germany’s Federal Government wrote:
1. What rules of engagement apply to the arrest or detention of persons by members of German armed forces abroad, for example in the context of Operation ENDURING FREEDOM or the ISAF [International Security Assistance Force] mandate?
The international law and constitutional law bases of the deployments abroad of the Federal Armed Forces in certain circumstances authorize the deployed German service men and women to take persons into custody. The concrete requirements for this follow from the international law and constitutional law bases, concretized in the rules of engagement and the pocket card “Rules on the use of military force”.
The rules of engagement generally are determined by:
- the international law bases of the respective deployment (for example UN mandate),
- the constitutional law parameters of the Basic Law,
- the concrete parameters of the Federal Government’s deployment decision, to which the German Parliament has given its approval,
- the operation plan of the respective system of mutual collective security, in whose context the deployment is taking place,
- the internationally agreed Rules of Engagement (RoE).
It is not necessary to specially emphasize that the protection of human rights has always been and is a formative element especially also of the Federal Armed Forces’ deployments abroad.
As regards the treatment of persons taken into custody by German service men or women during deployments abroad, the Federal Ministry of Defence, by order of 26 April 2007, for all deployments abroad of the German Armed Forces enacted actualizations and concretizations for the protection of the human rights of those persons:
7. Persons taken into custody are promptly either to be transferred to the competent authorities or to be released, insofar as they are no longer a danger. Release and transfer are to be documented. The International Committee of the Red Cross (ICRC) is to be informed of the taking into custody, release or transfer by the responsible contingent leader of the respective German deployment contingent.
In order to further take into account the characteristics of the individual deployments abroad of the Federal Armed Forces (UNIFIL, [KFOR], EUFOR, OEF, ISAF), this order was supplemented by five individual instructions by the Federal Ministry of Defence/coordination staff for deployment tasks Koordinierungsstab für Einsatzaufgaben – KSEA] of 27 April 2007. In these individual instructions not only a prompt information duty of the Contingent Commander of the DEU Deployment Contingent (KtgtFhr DEU EinsKtgt) vis-à-vis the ICRC in connection with the holding, transfer or release of persons by the respective German deployment contingent was codified, the KtgtFhr DEU EinsKtgt was also expressly made responsible for ensuring that persons taken into custody are at all times treated in compliance with the order of 26 April 2007.
For OEF and ISAF in particular applies in addition:
OEF:
1. The right to self-defence according to Article 51 of the UN Charter in conjunction with Article 5 of the North Atlantic Treaty allows DEU forces in the framework of Operation ENDURING FREEDOM (OEF) to detain Taliban/Al Kaida.
ISAF:
1. On the basis of UN Security Council Resolutions (UN SC Res) 1386 (2001) and 1510 (2003), last extended by UN SC Res 1707 of 12 September 2006, deployment contingent ISAF DEU is authorized to take all measures necessary to fulfill the mandate, in particular to take the measures necessary to maintain security, to provide security-related assistance and therefore also to temporarily detain persons in order to implement the mandate.
2. Persons temporarily detained are, if possible, to be released within 96 hours or to be transferred to the competent Afghan authorities. For the duration of the custody, the persons are to be treated in accordance with the order of 26 April 2007. The KtgtFhr DEU EinsKtgt is responsible for this.
4. Is there a difference between persons “arrested”, “detained” or “taken into custody”?
If yes, what difference?
To what extent does such a difference, as the case may be, have an effect on the legal status of the persons concerned?
The term “taken into custody” means that someone is deprived of his liberty insofar as, in a manner conform with the mandate, he is prevented by deployment forces from moving away. The extent and the form of the effects on the legal status of the person concerned depend inter alia on the general framework of the respective deployment under international law as well as on the competences – mandated under international law – of the respective acting deployment forces. We refer to the preliminary remarks by the Federal Government as well as to the reply to question 1.
5. What legal guarantees apply to persons taken into custody in the context of deployments abroad of the Federal Armed Forces, and in which laws, treaties or agreements are these guarantees codified (please name exactly)?
The legal guarantees for persons taken into custody in the context of deployments abroad of the Federal Armed Forces are individually listed in the order of 26 April 2007 mentioned. We refer to the reply to question 1. With it, inter alia the existing international law obligations of the Federal Republic of Germany, such as Geneva Convention III, the International Covenant on Civil and Political Rights (ICCPR) or the European Convention for the Protection of Human Rights (ECHR) as well as constitutional law parameters are implemented. With a view to the deployment of the Federal Armed Forces in Afghanistan, the Federal Government aims for a bilateral agreement with the Afghan Government on the transfer of detained persons, with the objective to ensure that transferred persons are treated in accordance with the international customary law and treaty law human rights obligations also applicable to Afghanistan, and that the death penalty is not enforced against them. A draft text agreed within the Federal Government has been made available to the Afghan Government.
7. Does the Federal Government share the view of the UN Human Rights Committee according to which the International Covenant on Civil and Political Rights (ICCPR) also applies to persons subject to the jurisdiction of a State Party, if its troops or police forces, in particular in the framework of peace missions, are deployed abroad?
The Federal Republic of Germany according to Article 2, paragraph 1 of the ICCPR [1966 International Covenant on Civil and Political Rights] ensures the Covenant rights to all persons within its territory and subject to its jurisdiction.
During deployments of its armed forces abroad, in particular also in the framework of peace missions, Germany ensures the guarantee of the rights recognized in the Covenant to all persons, insofar as they are subject to its jurisdiction.
This also applies to German police forces, who in the framework of international peace missions are assigned to a mandate holder (in this context, exercise of an executive mandate is the exception – so far only during the UN mission UNMIK in Kosovo).
The international duties and obligations of the Federal Republic of Germany, in particular to fulfill the obligations under the UN Charter, remain unaffected by this.
The Federal Government has assured this to the UN Human Rights Committee. We refer to the Seventh Report by the Federal Government on its Human Rights Policy in the Context of Foreign Relations and in Other Policy Areas (BT-Drs. 15/5800 …).
13. Were or are persons, detained or arrested in the framework of operations in which also German service women or service men participated, transferred to security forces of other States?
If yes, when, and to which forces, and on what legal basis?
In number “3. Mandate”, the decision of the German Parliament on the deployment of German armed forces in the framework of OEF provides: “Operation Enduring Freedoms aims to disable command and training installations of terrorists, to fight terrorists, capture them and bring them to trial, as well as to permanently prevent third persons from supporting terrorist activities. German armed forces contribute to this with their abilities”.
Within these framework conditions approved by the German Parliament, also German security forces have made contributions in the form of work-sharing cooperation with other allies, in order to capture suspected persons.
Persons taken into custody are transferred only to the competent authorities on the ground, in Afghanistan to the Afghan security authorities.
15. Were or are persons in whose arrest German service women or service men participated transferred to Afghan authorities?
If yes, when, to which authorities, and on what legal basis?
Neither in the framework of OEF nor in the framework of ISAF do German deployment forces exercise own police or criminal procedure tasks. Insofar as German service women and service men participated or participate in arrests by Afghan authorities in a supporting manner, detained persons are transferred to the competent Afghan authorities. Support to arrests by Afghan security forces – for example securing of the Afghan operation forces or detaining persons – does not require a separate legal basis. Support to the Afghan State organs in maintaining security in the deployment areas is a core element of the UN mandate and the parallel mandate by the German Parliament.
23. According to the view of the Federal Government, which human rights or international law questions in connection with deployments of the Federal Armed Forces abroad require further internal or international clarification?
The human rights obligations of the Federal Republic of Germany have been and are respected in the framework of deployments of the Federal Armed Forces abroad. In this context, the Federal Government does not consider it to be conducive to speculate in a general way on the abstract need to clarify questions of international law. 
Germany, Bundestag, Reply by the Federal Government to the Minor Interpellation by the Members Winfried Nachtwei, Alexander Bonde, Volker Beck (Cologne), further Members and the Parliamentary Group BÜNDNIS 90/DIE GRÜNEN – BT-Drs. 16/6174, Basic Law and international law in deployments abroad of the Federal Armed Forces: Treatment of persons taken into custody, BT-Drs. 16/6282, 29 August 2007, pp. 5–13.
Germany
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) entitled “Information on the 33 individuals detained by the German ISAF contingent”, Germany’s Federal Government wrote:
Preliminary remarks by the Federal Government
The participation of German armed forces in the deployment of the International Security Assistance Force in Afghanistan (… ISAF) under NATO leadership is based on Resolution 1386 (2001) and subsequent Resolutions, most recently Resolution 1890 (2009), of the United Nations Security Council.
Under constitutional law the participation of German armed forces in ISAF is based on Article 24 paragraph 3 of the Basic Law in conjunction with the current mandate by the Bundestag of 26 February 2010.
Respect for the applicable rules of international law as well as German constitutional law is self-evident.
This also applies to the detention of individuals in Afghanistan by members of the German ISAF contingent.
… [O]n 5 January 2005 the Federal Government made the following statement before the United Nations Human Rights Committee in response to a request to clarify whether the State party considers that the [1966] International Covenant on Civil and Political Rights (ICCPR) applies to its armed forces and police forces in international operations, including Afghanistan (CCPR/C/80/L/DEU)
Pursuant to Article 2, paragraph 1, Germany ensures the rights recognized in the Covenant to all individuals within its territory and subject to its jurisdiction. Wherever its police or armed forces are deployed abroad, in particular when participating in peace missions, Germany ensures to all persons that they will be granted the rights recognized in the Covenant, insofar as they are subject to its jurisdiction. Germany’s international duties and obligations, in particular those assumed in fulfilment of obligations stemming from the Charter of the United Nations, remain unaffected. The training it gives its security forces for international missions includes tailor-made instruction in the provisions of the Covenant.
Regarding the European Convention on Human Rights (ECHR) the jurisprudence of the European Court of Human rights (ECtHR of 2 May 2007, Behrami vs. France, Appl. No. 71412/01; Saramati vs. France et al., Appl. No. 78166/01; concerning UNMIK [UN Interim Administration Mission in Kosovo] and KFOR [Kosovo Force]) must be taken into account.
The ISAF Operational Plan including its Rules of Engagement and other documents (ISAF Rules) as well as complementary national directives and orders consider in all respects the legal framework which comprises international law and constitutional law.
The order of 26 April 2007 by the Federal Ministry of Defence (BMVg) on the treatment of individuals detained by German soldiers during operation abroad exemplifies this at the national level. The content of this order is discussed in detail in the Federal Government’s reply to the Minor Interpellation by the parliamentary group BÜNDNIS 90/DIE GRÜNEN of 29 August 2007 published in Bundestagsdrucksache 16/6282. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Volker Beck (Cologne), Tom Koenigs, Marieluise Beck (Bremen), further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2551, 12 July 2010, pp. 2–3.
The Federal Government also wrote:
1. What are the names of the 33 individuals detained [in Afghanistan]?
2. Why were these individuals detained?
3. When was the last time that an individual was detained by German armed forces in Afghanistan?
4. When were these 33 individuals detained, and when were they released?
5. Who of the 33 individuals has or have been released after the end of their detention?
6 What happened to the individuals who were not released after the end of their detention?
Were they transferred to other authorities?
If so, to which authorities and when?
7. On what legal basis was the release or transfer of the detainees undertaken?
...
9. After their apprehension, were the detainees informed of the accusations against them?
10. Were the detainees given the opportunity to nominate a defence counsel in order to refute the accusations against them or to enforce their rights?
...
According to the rules in force for the ISAF operations, the armed forces (Bundeswehr) may temporarily detain members of the enemy forces. Individuals who are participating in the hostilities against ISAF or the Afghan State are not combatants. Therefore they may be criminally prosecuted for their participation in hostilities. Since ISAF is merely supporting, but not replacing, the Afghan State, only the Afghan authorities are competent to do so. The Rules of Engagement provide that individuals who have been detained by ISAF forces must be either released or transferred to Afghan authorities within 96 hours.
Apart from substantive aspects, the order of 26 April 2007 … stipulates that the detention, release and transfer of members of enemy forces to third parties must be seamlessly documented.
For acts of detention that took place prior to April 2007 there was no such documentation within the national registration and reporting system.
The information presented here in the subsequent table on the individuals detained in April 2007 results from a compilation of individual registrations and reports as well as notes in operational diaries. 13 names are known to the Federal Government. For data protection reasons, names – to the extent that they are known – are not given.
There are gaps in the available information. Taken together and compared to the order and directive of April 2007, the information does not provide a reliable picture of the situation.
Since April 2007 German forces have detained no individuals in Afghanistan.
The Federal Government already stated in reply to a Minor Interpellation by the parliamentary group DIE LINKE entitled “Treatment of Afghan prisoners by the Bundeswehr within the ISAF mandate” (Bundestagsdrucksache 16/7839 of 23 January 2008) that since the beginning of operation ISAF German forces have detained individuals, noting that it cannot be excluded that short-term detentions were not documented. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Volker Beck (Cologne), Tom Koenigs, Marieluise Beck (Bremen), further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2551, 12 July 2010, pp. 3–4.
The Federal Government listed the reasons for which a number of individuals were detained between 2002 and 2007 by German armed forces in Afghanistan during ISAF operations, including “suspected reconnoitring”, “threats with a weapon and resistance against a patrol’s orders”, “reconnoitring the main gate of Camp WAREHOUSE”, “operation lead by HQ ISAF J2: reconnoitring by local employees”, “pursuit and threatening of a patrol”, “suspected intrusion into the field camp”, “likely attacker on DEU [German] bus of 7 June 2003”, “suspected theft”, “IED [improvised explosive device] attack”, “VBIED [vehicle born IED] attack with white Toyota”, “theft of USB drive and crypto key”. 
Germany, Lower House of Federal Parliament (Bundestag), Reply by the Federal Government to the Minor Interpellation by Members Volker Beck (Cologne), Tom Koenigs, Marieluise Beck (Bremen), further Members and the Parliamentary Group DIE LINKE, BT-Drs. 17/2551, 12 July 2010, p. 5.
Ireland
In 2008, in a written response to a question on human rights issues, Ireland’s Minister for Foreign Affairs stated:
[T]he Government is completely opposed to the practice of the extraordinary rendition of prisoners.
The Committee [Cabinet Committee on Aspects of International Human Rights] has agreed that early contact should be made with the new US Administration to seek a clear statement of intent that extraordinary rendition would cease and would not resume during the new President’s term of office. … [W]hat we are looking for is a clear overall policy statement which would commit the new Administration to end the practice of extraordinary rendition wherever it may be occurring. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers—Human Rights Issues (2), Dáil Eireann debate Vol. 666 No. 3, 11 November 2008.
Ireland
In 2008, in a written response to a question on foreign conflicts, Ireland’s Minister for Foreign Affairs stated:
As regards the call in the petition “for the immediate release of 38 elected Palestinian parliamentarians held in Israeli jails”, it is understood that this refers to 37 members of the Palestinian Legislative Council who are imprisoned in Israel. … I would call for the release of all prisoners who have not been subject to due judicial process. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers—Foreign Conflicts (2), Dáil Eireann debate Vol. 669 No. 2, 2 December 2008.
Ireland
In 2009, in a written response to a question on human rights issues, Ireland’s Minister for Foreign Affairs stated:
In our bilateral contacts with both Israel and the Palestinian authorities, the Government regularly raises human rights issues, including the implications of respective Israeli and Palestinian security policies, and the importance of full compliance with international humanitarian law. In particular, Ireland and the EU have serious concerns about the practice of administrative detention, whereby Israel holds Palestinians indefinitely without charge or trial. Ireland has been to the fore in ensuring that these concerns are addressed in the EU’s political contacts with Israel. 
Ireland, Dáil Eireann (House of Deputies), Minister for Foreign Affairs, Written Answers—Human Rights Issues, Dáil Eireann debate Vol. 689 No. 2, 17 September 2009.
Israel
In 2006, in its fourth periodic report to the Committee against Torture (CAT), Israel stated:
Israel’s position on the applicability of CAT beyond its territory has been presented at length to the Committee on previous occasions and remains unchanged. In our view, the current procedure of administrative detention conforms with the principles of international humanitarian law, and indeed it has regularly been reviewed by the Israeli judicial system and the military legal system on this basis. Israel wishes to clarify that this measure can only be used on an exceptional basis when the evidence in existence is clear, concrete and trustworthy but for reasons of confidentiality and protection of intelligence sources, cannot be presented as evidence in ordinary criminal proceedings. 
Israel, Fourth periodic report to the Committee Against Torture, 12 December 2007, UN Doc. CAT/C/ISR/4, submitted 2 November 2006, § 90.
Malaysia
In 2010, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels. 
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 18 October 2010, as published in the summary record of the 13th meeting, 8 December 2010, UN Doc. A/C.6/65/SR.13, §§ 8, 10 and 11.
Malaysia
In 2012, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
[The delegate of Malaysia] said that … Israel, as the [O]ccupying Power in the Occupied Palestinian Territory, had failed to ensure that the people of Palestine lived a life free of misery, by blatantly disregarding international law, including the [1949] Geneva Conventions … Its list of violations included … prolonged detention of Palestinians in Israeli prisons. 
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 22 October 2012, as published in the summary record of the 15th meeting, 24 December 2012, UN Doc. A/C.6/67/SR.15, § 47.
Nepal
In 2004, in a declaration of commitment on the implementation of human rights and international humanitarian law, the Prime Minister of Nepal stated:
3. No one shall be subjected to arbitrary arrest or detention. Measures will be undertaken to prevent illegal or arbitrary detention …
10. For the effective judicial remedy, the orders issued by the Court, including the writ of habeas corpus shall be honoured. The right to verify the status of the detainee, his/her health condition, and the right to identify the authorizing and arresting authorities shall be guaranteed. Any malicious exercise against such rights to remedy shall be punishable by law. 
Nepal, Declaration of commitment on the implementation of human rights and international humanitarian law, 26 March 2004, §§ 3 and 10.
Nepal
In 2007, in its comments to the conclusions and recommendations of the Committee against Torture, Nepal wrote:
Recommendation, paragraph 14 [in which the Committee against Torture, having noted the difficult situation of armed conflict faced by Nepal, expressed concern about the number of detainees in prolonged detention without trial under the Public Security Act and the Terrorist and Disruptive (Control and Punishment) Ordnance and about the extensive resort to pre-trial detention.]
Detention
3. The Terrorist and Disruptive Act (Control and Punishment) Ordinance, 2004 has been repealed. No person has been detained under the Public Security Act. The Interim Constitution of Nepal has made mandatory provision that any detained person has to be present before the competent judicial authority within 24 hours of the arrest and one should not be held longer without the order of the court. The Government of Nepal has been seriously implementing these provisions and is totally committed to uph[o]ld this constitutional imperative. The Government has sincerely adhered to the principles of internationally recognized human rights and fundamental freedom[s] and is totally committed to uphold[ing] them. Article 118 of the Civil Code (Muluki Ain) requires an accused to remain in judicial custody only for trial of certain serious crimes or under certain exceptional circumstances. In [the] rest of the cases, [the] accused are tried under bail or without requiring them to remain in custody.
Recommendation, paragraph 16 [in which the Committee against Torture expressed concern about the non-compliance with court orders by members of security forces, reportedly including re-arrests.]
Independence of judiciary
5. The State has adhered to the principle of judicial supremacy and all security agencies have been issued appropriate instructions to abide by the judicial orders of the courts. They have also been instructed not to arrest the individuals who have been released by the order of the court. They have [been] no instances of such arrest[s] by the security personnel after April 2006. …
Interrogation and detention
13. At present there is not a single individual detained in the Army barracks. The incidence in the past should have to be viewed in the context of armed conflict in the country prevail[ing] at th[e] time. Now this has been effectively ended. …
15. No one has been held in incommunicado detention and the Government has no policy of such practice under any circumstance[s].
21. … The Comprehensive [P]eace Agreement (CPA) signed between the Government and the Nepal Communist [P]arty (Maoist) on November 21, 2006 unequivocally prohibits arbitrary detention … and is committed to end impunity. … The CPA also provides that no one shall be subject to arbitrary detention, kept in captivity or abducted. 
Nepal, Comments by the Government of Nepal to the conclusions and recommendations of the Committee against Torture, 29 January 2008, UN Doc. CAT/C/NPL/CO/2/Add.1, submitted 1 June 2007, §§ 3, 5, 13, 15 and 21.
Philippines
In 1988, the Human Rights Commission of the Philippines declared that all people residing in the Philippines had the right not to be detained unlawfully, and when detained, they could not be held in secret detention places, in solitary confinement or incommunicado or be subjected to other similar forms of detention. 
UN Secretary-General, Report on information submitted by Governments pursuant to Sub-Commission Res. 7 (XXVII) of 20 August 1974, UN Doc. E/CN.4/Sub.2/1990/20, 19 July 1990, §§ 2, 11 and 15.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated:
According to the Constitution as well as pursuant to articles 189–193 of the Penal Code, a person’s liberty is legally protected. Each person is guaranteed personal inviolability and personal liberty. Deprivation or restriction of liberty may occur only according to principles and in a course of action defined in a law. 
Poland, Fifth periodic report to the Human Rights Committee, 26 January 2004, UN Doc. CCPR/C/POL/2004/5, submitted 13 January 2004, § 157.
Code of Criminal Procedure
Serbia and Montenegro
In 2003, in its initial report to the Human Rights Committee, Serbia and Montenegro stated:
Pursuant to the Charter of Human and Minority Rights and Civil Liberties [of the State Union of Serbia and Montenegro, adopted in 2003], derogation from human and minority rights guaranteed by this Charter is allowed following the declaration of a state of war or a state of emergency, if the existence of the State Union or a member State is threatened, but only to the extent necessary under the given circumstances. Measures of derogation from human and minority rights cease to have effect following the end of the state of war or the state of emergency. No derogation is permitted even during the state of war or the state of emergency from the … right to personal liberty and security. 
Serbia and Montenegro, Initial report to the Human Rights Committee, UN Doc. CCPR/C/SEMO/2003/1, 24 July 2003, § 153.
Sri Lanka
In 1997, in a statement issued to the heads of the armed forces and the police force, the President of Sri Lanka directed:
1. Every member of the Armed Forces and of the Police Force shall assist and facilitate the HRC [Human Rights Commission of Sri Lanka] and any person authorised by the HRC in the exercise of its powers, duties and functions and also ensure that the fundamental rights of persons arrested or detained are respected.
2. No person shall be arrested or detained under any Emergency Regulation or the Prevention of Terrorism Act No. 48 of 1979 except in accordance with the law and proper procedure and by a person who is authorised by law to make such arrest or order such detention.
3. At or about the time of the arrest or if it is not possible in the circumstances, immediately thereafter as circumstances permit:
(i) the person making the arrest or detention shall identify himself to the person arrested or any relative or friend of such person upon inquiry being made, by name and rank;
(ii) every person arrested or detained shall be informed of the reason for the arrest;
(iii) the person making the arrest or detention shall issue, to the spouse, father, mother or any other close relation as the case may be a document in such form as specified by the Secretary to the Ministry of the Minister in charge of the subject of Defence, acknowledging the fact of arrest. The name and rank of the arresting officer, the time and date of arrest and the place at which the person will be detained shall also be specified. It shall be the duty of the holder of such document to return the same to, or produce the same before, the appropriate authority when the person so arrested or detained is released from custody;
Provided that, where any person is taken into custody and it is not possible to issue a document as set out above, it shall be the duty of the arresting officer, if such officer is a police officer, to make an entry in the Information Book giving reasons as to why it is not possible to so issue a document, and if the arresting officer is a member of the Armed Forces to report the reasons why it is not possible to issue a document to the officer in charge of the police station, whose duty it shall be to make an entry of such fact along with the reasons therefor in the Information Book.
(iv) the person arrested shall be afforded reasonable means of communicating with a relative or friend to enable his whereabouts being known to his family.
4. When a child under 12 years or a woman is sought to be arrested or detained, a person of their choice should be allowed to accompany such child or woman to the place of questioning. As far as possible any such child or woman so sought to be arrested or detained should be placed in the custody of a Women’s Unit of the Armed Forces or the Police Force or in the custody of another woman military or police officer.
5. A statement of a person arrested or detained should be recorded in the language of that person’s choice who should thereafter be asked to sign the statement. A person who desires to make a statement in his or her own handwriting should be permitted to do so.
6. (i) The members of the HRC or any person authorised by it should be permitted access to the person arrested or detained under the Prevention of Terrorism Act No. 48 of 1979 or under a Regulation made under the Public Security Ordinance (Chapter 40) and should be permitted to enter at any time any place of detention, police station or any other place in which such person is detained in custody or confined.
(ii) Every officer who makes an arrest or order of detention as the case may be, shall forthwith, and in any case not later than forty-eight hours from the time of such arrest or detention, inform the HRC or any person specifically authorised by the HRC, of such arrest or detention as the case may be, and the place at which the person so arrested or detained is being held in custody or detention. 
Sri Lanka, Statement by the President of Sri Lanka, Directions Issued by Her Excellency the President, Commander-In-Chief of the Armed Forces and Minister of Defence, Colombo, 31 July 1997, §§ 1-6.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
17. “Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence” on 7 July 2006 … [state] that
… any officer who makes an arrest or order of detention must, according to the above Directives, within 48 hours from the time of arrest or detention, inform the HRC [National Human Rights Council of Sri Lanka] of such arrest or detention and the place of custody or detention. …
18. The Government has issued circulars to the effect that whenever possible, except in exceptional circumstances, and where there is good reason, the State institutions should comply with the recommendations made by the NHRC [National Human Rights Commission of Sri Lanka]. The aforementioned Directives state,
Every member of the Armed Forces and the Police Force shall assist and facilitate the HRC and any person authorized by the HRC in the exercise of its powers, duties and functions and also ensure that the fundamental rights of persons arrested or detained are respected. …
45. The Presidential Directive of 7 July 2006, instructs the Heads of the Armed Forces and the IGP [Inspector General of Police] on measures necessary to enable the NHRC [National Human Rights Commission] of Sri Lanka to exercise and perform its powers, functions and duties. It also provides for the protection of fundamental rights of persons arrested or detained. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, §§ 17–18 and 45.
[footnote in original omitted]
Sri Lanka also stated:
20. Under section 37 of the Criminal Procedure Act No. 15 of 1979 of Sri Lanka, a person arrested under … normal circumstances would be detained in … police custody for [a] maximum of 24 hrs.
21. Persons arrested under [the] Emergency Regulations and Prevention of Terrorism Act, for certain offences could be detained up to [a] maximum of one year, for investigation and interrogation purposes. …
22. However, the court closely monitors the investigation and other activities of the police in connection with persons arrested under any law. …
23. The Supreme Court ha[s] given an order stating that persons arrested under section 19(1) of the Emergency Regulations [can] be kept in Police custody only for ninety days. During the course of the detention the said detainee should be transferred to … fiscal custody upon the expiration of 90 days from the date of arrest. These suspects could be kept for another period of nine months in … fiscal custody.
24. The President … issued directions to the Armed Forces and Police as the Minister of Defence, in connection with persons arrested and detained. The President … directed these institutions to respect the fundamental rights of … persons arrested and … has given these directions, regarding the rules and regulations concerning Arrest, Detention and Interrogation on 7 July 2006.
27. Presently, the Police follow the above the rules and regulations according to the Presidential Directives and the Supreme Court directions whenever suspects are arrested and detained.
33. The … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] also [take] measures to regulate arrests:
(a) … [They require] the person making the arrest to identify himself to the person arrested or to a relative … and to present a written documentation to the spouse, parent or relative acknowledging the fact of arrest;
(b) The name and rank of the arresting officer, the name and date of arrest and the place at which the person will be detained should be specified in this document;
(c) If such written documentation cannot be made, a note should be made in the Information Book of the relevant Police Station indicating why it was not possible to issue such documentation. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, Annex, §§ 20–24, 27 and 33(a)–(c).
Since the autumn of 2003, ISAF is led by NATO. With resolution 2069 the 9th of October 2012, the UN Security Council has extended the mandate of ISAF by one year, to the 13th October 2013. …
In the mandate of ISAF, there is also the possibility to apprehend persons who are posing a threat to the security of the mission. This may be necessary in order to fulfill the mandate the Security Council has given the mission. A fundamental condition for an individual detained by ISAF to be handed over to the Afghan authorities is that this is done with full respect for international law, inclusive of human rights and international humanitarian law. 
Sweden, Government request for parliamentary authorization of the continued participation of Sweden in the International Security Assistance Force in Afghanistan (ISAF), 2012/13:41, 8 November 2012, p.16.
Sweden does not engage in and has not engaged in transfers without prior judicial examination (rendition) or deprivations of liberty without prior judicial examination. Nor are there any complaints against Sweden before the European Court of Human Rights or UN Committees concerning transfers or detentions without prior judicial examination. 
Sweden, Seventh periodic report to the Human Rights Committee, 24 July 2015, UN Doc. CCPR/C/SWE/7, submitted 29 April 2015, § 41.
Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Internment
Detention ordered by the executive branch rather than by due process of law, without formal criminal charges being made. The internment of Prisoners of war in the course of an international Armed conflict comes under the provisions of the Third Geneva Convention. The detailed provisions of international humanitarian law relate in particular to … the termination of imprisonment. In exceptional cases Civilians may also be interned. The Fourth Geneva Convention allows the parties to the conflict to adopt control and security measures in relation to Protected persons. Such measures are subject to strict conditions and must be reviewed at least twice yearly by a tribunal or an authority appointed for that purpose.
War crimes
War crimes are grave breaches of the provisions of the Geneva Conventions of 1949 protecting persons and objects as well as other serious violations of the laws and customs that apply to an international or non-international Armed conflict. War crimes include notably: …unlawful detention[.] 
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, pp. 28 and 40.
Switzerland
In 2010, in its Report on IHL and Current Armed Conflicts, Switzerland’s Federal Council stated:
3.4 [Increasing use] of anti-guerrilla tactics
Apart from the direct fight against insurgents, international humanitarian law also addresses other anti-guerrilla tactics. … If members of militias or opposition groups fall into the hands of the government they benefit from the protection of art. 75 of [the 1977] Additional Protocol I as well as that of art. 3 common to the [1949] Geneva Conventions. … Furthermore, these detainees can be subjected to national criminal law. Individuals that did not commit reprehensible acts according to this law can be interned for imperative reasons of security specific to each of them. If the motives justifying internment are no longer met, it must be lifted. 
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]
Switzerland
In 2012, Switzerland’s Federal Department of Foreign Affairs issued a press release entitled “Switzerland is concerned about the situation of the Palestinian prisoners on hunger strike”, which stated:
Switzerland takes this opportunity to recall the obligations o[f] States to respect international humanitarian law and human rights, in particular with regard to conditions of detention. According to international law, administrative detention can only be applied as an exceptional measure and must be subject to periodic revision and an appeal procedure. 
Switzerland, Federal Department of Foreign Affairs, “Switzerland is concerned about the situation of the Palestinian prisoners on hunger strike”, Press Release, 10 May 2012.
Switzerland
In 2013, in a statement before the UN Human Rights Council during a debate on the human rights situation in Palestine and other occupied Arab territories, the representative of Switzerland stated:
Furthermore, Switzerland is deeply concerned by the recurring resort to prolonged administrative detention with regard to the Palestinian population. We recall that administrative detention must remain an exceptional measure and be used with respect for fundamental guarantees. 
Switzerland, Statement by the representative of Switzerland before the UN Human Rights Council during a debate on the human rights situation in Palestine and other occupied Arab territories, 18 March 2013.
Uganda
In 2003, in its initial report to the Human Rights Committee, Uganda stated:
216. The right to liberty and security of person is enshrined in Uganda’s domestic legislation. Article 23 of the Constitution provides that no person shall be deprived of personal liberty except in the following cases –
(a) in execution of the sentence or order of a court whether in Uganda or another country or of an international court or tribunal in respect of a criminal offence of which that person has been convicted; or of an order of a court punishing the person for contempt of court;
(b) in execution of the order of a court made to secure the fulfilment of any obligation imposed on that person by law;
(c) for the purpose of bringing that person before a court in execution of the order of a court or upon reasonable suspicion that the person has committed or is about to commit an offence under the laws of Uganda;
(d) for the purpose of preventing the spread of an infectious or contagious disease;
(e) in the case of a person below 18 years, for the purpose of the education or welfare of that person;
(f) in the case of a person who is reasonably suspected of being of an unsound mind or addicted to drugs or alcohol, for the purpose of the care and treatment of that person or the protection of the community;
(g) for the purpose of preventing the unlawful entry of that person into Uganda or for the purpose of effecting expulsion, extradition or other lawful removal of that person from Uganda;
(h) as may be authorised by law, in any other circumstances similar to any of the cases specified in paragraph (a) to (g) above.
217. Every individual in Uganda therefore has a constitutional protection as to personal liberty and a person will not be deprived of his or her liberty or be arrested or detained except as authorised by law. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, §§ 216–217.
The report further stated:
226. It is a pre-condition of lawful arrest that the person arrested should know the nature of the charge or suspicion for which he is arrested. And it is the duty of the person arresting to inform the arrested person the reasons for the arrest unless, of course, the arrested person creates a Situation whereby it would be impossible to inform him, say, by a counter-attack or by running away.
The Uganda Peoples Defence Forces (UPDF)
232. In 1998, the Commission received and investigated 36 complaints against the UPDF, 20 of which alleged deprivation of person liberty. A clear pattern emerged indicating that the army had arrested a number of people, detained them for long periods, and released them without trial. This is contrary to the law. First, the army as an institution has no legal powers to arrest.
Second, army installations are not gazetted places of detention. Finally, this is contrary to the law because many people were detained for long periods without appearing before any court of law. 
Uganda, Initial report to the Human Rights Committee, 14 February 2003, UN Doc. CCPR/C/UGA/2003/1, 25 February 2003, §§ 226 and 232.
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:
- Every person has the right to freedom and personal inviolability. 
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 2003, during a debate in the House of Lords on the Anti-terrorism, Crime and Security Act 2001 (Continuance in force of sections 21 to 23) Order 2003, the UK Parliamentary Under-Secretary of State, Home Office, stated:
Before September 11th, the UK had already built up 30 years’ experience of dealing with terrorism and terrorists. This meant that there were proven counter-terrorism measures and legislation in place. However, the September 11th attacks in New York, Washington and Pennsylvania were on an unprecedented scale and of a different nature to what we had so far faced. We needed to address that difference swiftly and effectively. We introduced the Anti-terrorism, Crime and Security Act 2001, including the Part 4 immigration and asylum powers.
The 2001 Act built on and updated as necessary the tough counter-terrorism provisions already in place. It was designed to ensure that the Government had the necessary powers to counter all forms of terrorist threat while ensuring the protection of individual rights and consistency with our international commitments.
The detention powers in Sections 21 to 23 of Part 4 of the Act were considered essential in the light of the particular public emergency facing the life of the nation, and proportionate to that threat. They address the very specific threat from suspected international terrorists present in the UK who are further suspected of involvement in terrorism of the sort which led to the events of September 11th. In short, it involves individuals who would not normally be permitted to remain in this country but who cannot be deported for legal or practical reasons.
Those measures required a derogation from Article 5 of the European Convention on Human Rights (ECHR). This was not something that was undertaken lightly, but we believed - and continue to believe – that, based on the mass of evidence available to the Government, there is a public emergency threatening the life of the nation within the meaning of Article 15 of ECHR and that the measures we have taken are strictly required by the exigencies of the situation and are proportionate.
Having reviewed the open and the closed evidence, in its judgment in July 2002, the Special Immigration Appeals Commission (SIAC) agreed that there was a public emergency facing the life of the nation and that the measures were strictly required by the exigencies of the situation. However, the SIAC found that the powers were discriminatory, as they applied only to foreign nationals. The subsequent Court of Appeal judgment in October 2002 held, unanimously, that the derogation was lawful.
I can confirm that in my view the provisions of the order are compatible with the convention rights.
The detention powers that we took under Part 4 of the ATCS Act, in response to the public emergency, closed a very specific loophole. There are present in the UK a number of foreign nationals who are suspected of being concerned in the commission, preparation or instigation of acts of international terrorism of the kind which resulted in events of 11th September 2001; being members of organisations or groups so concerned, or having links with members of such organisations or groups; and who are a threat to our national security.
Where it is possible to remove or deport from the UK a foreign national suspected of terrorism, we make every effort to do so. But removal is precluded for some of these foreign national suspected terrorists because of the important safeguard in Article 3 of the ECHR to prevent removal if they might face torture, inhuman or degrading treatment or punishment.
Of course if it is possible to prosecute we will do so, and that would always be the preferred course of action. But it is not always possible to prosecute.
The Government have to achieve a difficult balance between our international commitments and our duty to safeguard the security of this country. The Government have reviewed closely and regularly the need for the detention powers and ECHR Article 5(1) derogation, as well as the feasibility of other possible options. We concluded that there was no responsible or indeed effective alternative but to maintain powers to detain, and the ECHR derogation. That view was upheld in the Court of Appeal in October.
The Government have also reviewed closely the application of detention powers to foreign and not UK nationals. We believe they are entirely justified, for the following reasons. The threat comes predominantly, though not exclusively, from foreign nationals present in the UK who we are not able to remove. The preferred course of prosecution may not be possible because the evidence needed for successful prosecution may be unavailable or not usable. It would be deeply damaging if the UK was seen to be unable to take action and consequently as providing safe haven, weakening the international fight against terrorism.
Finally, unlike UK nationals, who have the right to be in the UK, foreign nationals are ordinarily subject to removal if they represent a threat to national security.
The Court of Appeal upheld our position on the need for these powers in its judgment in October last year, and agreed that they were not discriminatory and comply with ECHR.
To date, 15 foreign nationals have been detained under Sections 21 to 23 of the Act. Of those, two have voluntarily left the UK. The other 13 remain in detention. The decisions to certify and detain these individuals were based on detailed and compelling intelligence and other material. That material will be examined by the SIAC, as provided under ATCS Act.
All those detained have had access to legal advice throughout the detention period and there is no limit on the number of legal visits that detainees may receive. Those detained have immediate right of appeal to the Special Immigration Appeals Commission against the certificate. All but one of the detainees have already exercised that right. The ATCS Act provides for the SIAC regularly to review certificates, and it may overturn them. Detainees also have the right to apply for bail to the commission at any time and several have done so. This is not internment. It is open to the detainees to leave the United Kingdom of Great Britain and Northern Ireland, and two have done so.
Individual detainee appeals will be heard by the SIAC, starting in May. We believe these would have been heard much sooner had it not been for the legal challenge mounted by defendants to the detention powers – powers which the Court of Appeal upheld in October. We are clear that they must proceed as early as possible without any necessity to await the final outcome of the derogation challenge to the House of Lords, if leave is granted.
The Home Secretary stated in the House of Commons:
“I do not think that there has ever been an Act or part of an Act that has been subject to as much review, scrutiny, renewal and cancellation as this – and rightly so”. – [Official Report, Commons, 3/3/03; col. 586.]
The noble Lord, Lord Carlile of Berriew, is the independent reviewer of the Part 4 powers. His report on the workings of Sections 21 to 23 of the ATCS Act was laid before the House on 12th February. We are most grateful to the noble Lord for his detailed, thorough and challenging work. We are pleased to note that the noble Lord, Lord Carlile, is satisfied that the Home Secretary has certified persons under the Act only in appropriate cases and that he has exercised his independent judgment in each case, having given due regard to advice from officials.
We welcome the noble Lord’s recommendations. We are considering his points in detail and will reply to him shortly. The Home Secretary has already agreed in principle to the noble Lord’s recommendation for detainees to be held in a separate facility within the Prison Service and scoping work is proceeding on this. I should emphasise that the decision to go to a separate unit, when it exists, on the part of the detainees will be voluntary; there will not be, and must not be, any sense of compulsion over this.
The order extends for a further 12-month period the powers in Sections 21 to 23 of the Act. Those powers will then lapse, unless we propose renewal for a further period of up to 12 months, and if that proposal is then approved by both Houses of Parliament. In summary, the effect of the order is to continue in force, until 13th March 2004, the powers under Sections 21 to 23.
In the light of the events of the last 18 months, including recent weeks, we are absolutely convinced that the public emergency continues. For so long as it does so, when a foreign national suspected of terrorism of the kind which resulted in the events of September 11th and of being a threat to national security, and when we want to remove or deport them but removal is not possible, we believe it is necessary and proportionate to continue to provide for extended detention under immigration powers pending eventual removal. That is why I am seeking this House’s approval to extend the powers in sections 21 to 23. I commend the order to the House. 
United Kingdom, House of Lords, Statement by the Parliamentary Under-Secretary of State, Home Office, Hansard, 11 March 2003, Vol. 645, Debates, cols. 1291–1294.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Commons, the UK Secretary of State for Defence wrote:
Coalition military action against Iraq is in conformity with international law. The taking of prisoners of war is a recognised and legitimate means of reducing an enemy’s strength and fighting capacity. Iraqi military personnel who fall into the hands of United Kingdom of Great Britain and Northern Ireland forces will be treated in accordance with the Geneva Convention. 
United Kingdom, House of Commons, Written answer by the Secretary of State for Defence, Hansard, 1 April 2003, Vol. 402, Written Answers, col. 651W.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to oral questions in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence stated:
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, the Government have long made plain that they will act in conformity with international law. The taking of prisoners of war is a recognised and legitimate means of reducing an enemy’s strength and fighting capacity. Iraqi military personnel who fall into the hands of United Kingdom of Great Britain and Northern Ireland forces are prisoners of war and therefore will be treated in accordance with the Geneva Conventions.
Lord Monson: My Lords, will the Minister confirm that it would be contrary to international law for coalition forces to imprison unarmed civilians merely because they happen to belong to a certain political party?
Lord Bach: My Lords, merely because they happen to belong to a particular political party? Yes, of course that would be unlawful. But we have the power to capture and detain combatants and others who pose a direct threat to United Kingdom of Great Britain and Northern Ireland forces or whose continued liberty poses a threat to our overall mission. If one or other of those requirements is met, we are entitled under international law to detain them. 
United Kingdom, House of Lords, Statements by the Parliamentary Under-Secretary of State for Defence, Hansard, 8 April 2003, Vol. 647, Debates, cols. 132–134.
United Kingdom of Great Britain and Northern Ireland
In 2003, in reply to a written question in the House of Lords, the UK Parliamentary Under-Secretary of State for Defence, Lord Bach, wrote:
Lord Oakeshott of Seagrove Bay asked Her Majesty’s Government:
Further to the Written Answer by the Lord Bach on 16 July (WA125), for how much longer they expect to keep without trial the 71 persons captured by British forces interned for imperative reasons of security; and how and by whom they expect the prisoners to be tried if they are not released.
Lord Bach: Of the 71 persons held for imperative reasons of security on 15 July, 49 have already been released. The remainder will be held until it is assessed that their internment is no longer necessary for reasons of security, all cases are subject to regular review. In cases where there is evidence to suggest that a criminal offence has been committed, persons captured by United Kingdom of Great Britain and Northern Ireland forces are handed to the Iraqi judicial system. If internment is based on intelligence material that justifies internment, the case will not be suitable for trial, although cases will be subject to regular review. 
United Kingdom, House of Lords, Written answer by the Parliamentary Under-Secretary of State for Defence, Hansard, 8 September 2003, Vol. 652, Written Answers, col. WA45.
United Kingdom of Great Britain and Northern Ireland
In 2003, in its fourth periodic report to the Committee against Torture, the United Kingdom stated:
57. In response to the events of September 11th 2001, the Anti-Terrorism, Crime and Security (ATCS) Act 2001 was passed to deal with the problem of suspected international terrorists who could not be returned to their home countries because of an international agreement, for example the ECHR [1950 European Convention on Human rights], which prohibits removal of a person who would face torture, or because of practical difficulties – for example a war, or a state of serious instability, in their home country.
58. The powers of the ATCS Act provide that anyone subject to immigration control whom the Home Secretary has certified as being a suspected terrorist and a threat to national security, and whom he has decided should be removed from the United Kingdom, could be detained pending removal, even where removal is not possible in the foreseeable future. The use of these powers has been accompanied by derogations from the European Convention on Human Rights and the United Nations ICCPR [1966 International Covenant on Civil and Political Rights] reflecting the emergency facing the United Kingdom. Both the detentions and the derogation are reviewed regularly. These powers are designed to be used only in the immigration context, and anyone detained under them can leave the United Kingdom at any time. There is a full right of appeal against the certification and against the decision to deport. These powers have so far been used in a limited way. Fifteen people have been detained under the Act. All 15 are currently appealing their certificates. Ten appeals have been heard to date and the determinations for these are expected at the end of September 2003. The hearings for the remainder of the appeals will start in November 2003. Some of the detainees have also appealed against the United Kingdom’s derogation from article 5 of the ECHR. The Court of Appeal unanimously upheld the United Kingdom’s decision to derogate in October 2002. Leave to appeal to the House of Lords has been granted; at the time of writing no date has been set for the hearing.  
United Kingdom, Fourth periodic report to the CAT, UN Doc. CAT/C/67/Add.2, 27 May 2004, submitted 6 November 2003, §§ 57–58.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Lords, the UK Minister of State, Home Office, wrote:
Sixteen foreign nationals have so far been detained using powers in Part IV of the Anti-terrorism, Crime and Security (ATCS) Act 2001. Eight were detained in December 2001, one in February 2002, two in April 2002, one in October 2002, one in November 2002, two in January 2003 and one in October 2003. One further individual has been certified under Part IV of the ATCS Act in August 2003 but is detained under other powers.
Of the total detained, two have voluntarily left the United Kingdom of Great Britain and Northern Ireland. The other 14 remain in detention.
The Home Secretary’s decisions to detain these individuals were made on the basis of detailed and compelling evidence. That evidence is being examined by the Special Immigration Appeals Commission as the individuals’ appeals are heard, as provided for under the ATCS Act. The commission is equivalent to the High Court. It has the power to overturn his decisions.
Where terrorism is concerned, our paramount responsibility is to ensure public safety and national security. So long as the public emergency subsists, where a person is suspected of terrorism but cannot currently be removed and for whom a criminal prosecution is not an option, we believe that it is necessary and proportionate to provide for extended detention, pending removal. 
United Kingdom, House of Lords, Written answer by the Minister of State, Home Office, Hansard, 18 November 2003, Vol. 654, Written Answers, col. WA279.
United Kingdom of Great Britain and Northern Ireland
In 2003, in a reply to a written question in the House of Commons, the UK Minister of State for the Armed Forces, Ministry of Defence, wrote:
Article 78 of the IV Geneva Convention (1949) allows the UK as the Occupying Power to intern people where it considers it necessary for reasons of security. Internees will continue to be held until such time as they are no longer considered a threat to Coalition Forces. A review is conducted at the 10, 28 and 90 day points (and every 90 days thereafter) to determine whether continued internment is necessary. Internees enjoy all their rights under the Geneva Conventions.
As at 1 December, all internees held by the UK Forces in Iraq are of either Iraqi or Sudanese nationality. 
United Kingdom, House of Commons, Written answer by the Minister of State for the Armed Forces, Ministry of Defence, Hansard, 8 December 2003, Vol. 415, Written Answers, col. 269W.
United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning, inter alia, instructions to treat prisoners and detainees in accordance with the 1949 Geneva Conventions, the UK Parliamentary Under-Secretary of State, Ministry of Defence, stated:
All British forces personnel in Iraq have the authority to detain persons who pose a threat to their safety or security and are, therefore, briefed in prisoner handling. This includes guidance that prisoners should be treated, at all times, fully in accordance with the Geneva Conventions. 
United Kingdom, House of Commons, Written answer by the Parliamentary Under-Secretary of State, Ministry of Defence, Hansard, 29 June 2004, Vol. 663, Written Answers, col. WA15.
United Kingdom of Great Britain and Northern Ireland
In 2006, in a written answer to a question in the House of Lords concerning, inter alia, “the release of hostages and detainees”, the UK Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, stated that the government continued to have “concerns about the detention of members of the Palestinian Government and legislature on 29 June. Those detained should be accorded their full legal rights and either be charged or released”. 
United Kingdom, House of Lords, Written answer by the Parliamentary Under-Secretary of State, Foreign and Commonwealth Office, Hansard, 25 July 2006, Vol. 684, Written Answers, col. WA278.
United Kingdom of Great Britain and Northern Ireland
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Control Orders
36. The Government set out the general context of the introduction of the Anti-terrorism, Crime and Security (ATCS) Act 2001 and the subsequent certification and detention of suspected terrorists under Part 4 of the Act in its interim report to the Human Rights Committee in November 2002. These Part 4 powers have since been repealed and a new system of control orders was introduced in the Prevention of Terrorism Act 2005, a summary of which is provided below.
37. The Part 4 powers were exceptional immigration powers that enabled the Home Secretary to certify, and therefore to detain, foreign nationals who were suspected of involvement in international terrorism and who were believed to represent a risk to national security but who could not be removed from the United Kingdom. The main reason they could not be removed was because it was assessed that, faced with removal, they would be able to argue that, if returned to their countries of origin, there was a real risk that they would suffer torture or inhuman treatment, putting the United Kingdom in breach of article 3 of ECHR [the 1950 European Convention on Human Rights], article 7 of ICCPR [1966 International Covenant on Civil and Political Rights] and the Convention Against Torture (CAT). Since detention in these circumstances was arguably contrary to article 5 of ECHR and article 9 of ICCPR, the United Kingdom derogated from these articles (in accordance with article 15, ECHR, and article 4, ICCPR).
38. These powers were used sparingly: only 17 people were certified under the 2001 Act. Sixteen were certified and detained, and one was certified but detained under other powers (of the sixteen who were detained on the strength of the Part 4 powers, two chose to leave the UK). Those certified had a right of appeal to the Special Immigration Appeals Commission (SIAC), and all 17 exercised their right. SIAC heard 16 appeals and the remaining one has recently been withdrawn. In the 16 appeals which it determined, SIAC upheld the Home Secretary’s decision to certify in all but one of the cases. The determinations for the first 10 appeals were handed down together. The appellants were given leave to appeal to the Court of Appeal. Their case was heard in July 2004 and the judgment given on 11 August 2004. The Court of Appeal upheld the position taken by the Home Secretary.
39. The legality of the derogation sought in relation to the ATCS Act Part 4 powers has also been separately challenged in the Courts. On 30 July 2002 SIAC upheld the Home Secretary’s conclusion that the Part 4 powers remained a necessary and proportionate response by the Government in view of the public emergency threatening the life of the nation within the terms of article 15 of ECHR and article 4, ICCPR. SIAC however considered that the provisions of the Act were discriminatory and contrary to article 14 of ECHR in so far as they permitted detention of suspected international terrorists in a way that discriminated against them on the ground of nationality. The Court of Appeal reversed this decision on 25 October 2002 (while still upholding the Home Secretary’s conclusion that the Part 4 powers remained a necessary and proportionate response by the Government in view of the public emergency threatening the life of the nation).
40. The case was subsequently taken to the House of Lords. On 16 December 2004 the Law Lords concluded that section 23, ATCS Act, was incompatible with articles 5 (deprivation of liberty) and 14 (prohibition of discrimination) of ECHR. The basis for the decision was that detention of foreign suspected nationals was discriminatory and disproportionate in that (a) the measures targeted foreign nationals alone and (b) it could not be said that measures short of detention would not adequately meet the threat posed by international terrorists. In summary, they concluded that there was a public emergency threatening the life of the nation but that the measures were not strictly required by the exigencies of the situation because they were disproportionate and discriminatory.
41. Following this ruling, the British Government acted swiftly to bring forward new legislation – the Prevention of Terrorism Act 2005. The 2005 Act repealed sections 21 to 32 of the ATCS Act, and introduced a new system of control orders. Subsequently, the United Kingdom withdrew its derogation from ECHR and ICCPR.
43. The Prevention of Terrorism Act provides for two types of order: “non-derogating control orders” in which the obligations imposed must not amount to a deprivation of liberty within the meaning of article 5 ECHR; and “derogating control orders”, which impose obligations that do amount to a deprivation of liberty under the terms of the ECHR. The Act empowers the Secretary of State to make a non-derogating control order but only a court can make a derogating control order. To date, the Government has not sought a derogation from article 5 ECHR and unless and until it does so, derogating control orders cannot be made.
44. In the case of Secretary of State for the Home Department v JJ and Others (1 August 2006), the Court of Appeal upheld the High Court’s decision to quash six non-derogating control orders that were found to include obligations that deprived the individuals of their liberty contrary to article 5 ECHR and accordingly had been unlawfully made by the Secretary of State. The Government of the United Kingdom is seeking to appeal the Court of Appeal ruling in the House of Lords. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, §§ 36–41 and 43–44.
United Kingdom of Great Britain and Northern Ireland
In 2007, in its response to the Intelligence and Security Committee’s Report on Rendition, the UK Government stated: “the UK opposes any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law”. 
United Kingdom, Government Response to the Intelligence and Security Committee’s Report on Rendition, Cm 7172, July 2007, p. 8.
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. 
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 Kingdom of Great Britain and Northern Ireland
In 2010, the UK Army Inspector examined and assessed the implementation of policy, training and conduct of detainee handling by UK armed forces on operations. The Final Report by the Army Inspector states:
30. In its discussions with deployed personnel, the Review has identified two areas in which some individuals were uncertain as to the policy to be followed: [One area concerns] … the detention (or not) of juveniles.
b. SOI J3-9 states that “Children under the age of 15 should not be detained unless necessary to prevent imminent danger to UK forces. In certain circumstances, those under the age of 15 may be removed from a location to be protected from danger and passed to [Host Nation] authorities for their own safety. This is best achieved by alerting [Afghan National Security Forces/Afghan National Police] to any child in danger. Children must be supervised by female troops where possible”. 
United Kingdom, Army Inspectorate Review into the Implementation of Policy, Training and Conduct of Detainee Handling, Final Report by the Army Inspector, File Ref. CGS/ArmyInsp/DH/01, 15 July 2010, § 30(b), pp. 15–16.
[footnote in original omitted; emphasis in original]
United States of America
In August 2003, the US State Department issued a written response to an opinion issued by the United Nations Commission on Human Rights (UNCHR), dated 8 May 2003, that had referred to a UNCHR Working Group report on Arbitrary Detention, dated 8 January 2003, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. In disagreeing with the UNCHR reports, and noting that the competence of the Working Group did not extend to the laws and customs of war, the US response stated:
The laws and customs of war are the applicable law in armed conflict. The Opinion and Communication ignore this crucial juridical context, suggesting that the detainees are entitled to judicial review or enjoy the right to resort to the courts. The Opinion, however, presents no legal support for the novel proposition that detained enemy combatants have any rights under the law of armed conflict to have their detention reviewed in a human rights forum or to have access to the courts of the Detaining Power to challenge their detention during the course of ongoing conflict.
It is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or other benefits claimed in the Opinion, but terrorist combatants who violate the law of armed conflict must be given special privileges or released and allowed to continue their belligerent, unlawful or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
Some have erroneously claimed that the United States is violating domestic and international laws that prohibit the indefinite detention of individuals without trial. This claim is contrary to the well-established and broad authority of a country to detain enemy combatants under the laws and customs of war for the duration of hostilities.
Individuals detained at Guantánamo are enemy combatants captured in the course of ongoing hostilities or directly acting in support of a hostile armed force engaged in an ongoing armed conflict. As such, they are being held in accordance with the laws and customs of war, which permit the United States to capture and detain enemy combatants to prevent their re-engaging in the ongoing armed conflict.
The United States has made it clear that the detainees are unlawful combatants – a legal status that has long been recognized under international law – who may be detained at least for the duration of hostilities. See, e.g., Ingrid Detter, The Law of War 148 (2000) (“Unlawful combatants … though they are a legitimate target for any belligerent action, are not, if captured, entitled to any prisoner of war status.”). Individuals detained at Guantánamo include a number of senior Al Qaida operatives or others committed to killing Americans and others. The United States continues to fight against enemy combatants who are planning and conducting attacks against it.
The detention of an enemy combatant is not an act of punishment but one of security and military necessity. It serves the important purpose of preventing an enemy combatant from continuing to fight against us. There is no law requiring a detaining power to prosecute enemy combatants on some form of charge or release them prior to the end of hostilities. Likewise, under the laws and customs of war, detained enemy combatants have no right of access to counsel or the courts to challenge their detention. Should a detainee be charged with a criminal offense, he would have the right to counsel and applicable fundamental procedural safeguards.
It is also important to note that the United States has no interest in detaining enemy combatants longer than necessary. On an ongoing basis, we are constantly reviewing the continued detention of each enemy combatant, based on security, war crime involvement, and intelligence concerns. This process has resulted in the release of, to date, 64 individuals. These individuals are required to sign an agreement that they will not take up arms against the United States or its allies. Additionally, some enemy combatants have been transferred to their countries of nationality for continued detention. 
United States, State Department, Response to UNCHR Opinion No. 5/2003 of 8 May 2003 and the Communication of 8 January 2003 of the Working Group on Arbitrary Detention, August 2003.
[emphasis in original]
United States of America
In 2005, in its second periodic report to the Committee against Torture, the United States stated:
The United States and its coalition partners are engaged in a war against al-Qaida, the Taliban, and their affiliates and supporters. There is no question that under the law of armed conflict, the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of hostilities. Like other wars, when they start we do not know when they will end. Still, we may detain combatants until the end of the war. 
United States, Second periodic report to the Committee against Torture, 13 January 2006, UN Doc. CAT/C/48/Add.3/Rev.1, submitted 6 May 2005, Annex 1, p.48, § 1.
United States of America
In December 2005, the US Secretary of State, prior to her departure for Europe, made a detailed statement regarding US rendition, detention, interrogation and interrogation practices, including US obligations under the 1985 Convention against Torture. This stated in part:
We consider the captured members of al-Qaida and its affiliates to be unlawful combatants who may be held, in accordance with the law of war, to keep them from killing innocents.
For decades, the United States and other countries have used “renditions” to transport terrorist suspects from the country where they were captured to their home country or to other countries where they can be questioned, held, or brought to justice.
In some situations a terrorist suspect can be extradited according to traditional judicial procedures. But there have long been many other cases where, for some reason, the local government cannot detain or prosecute a suspect, and traditional extradition is not a good option. In those cases the local government can make the sovereign choice to cooperate in a rendition. Such renditions are permissible under international law and are consistent with the responsibilities of those governments to protect their citizens.
Renditions take terrorists out of action, and save lives.
In conducting such renditions, it is the policy of the United States, and I presume of any other democracies who use this procedure, to comply with its laws and comply with its treaty obligations, including those under the Convention Against Torture. Torture is a term that is defined by law. We rely on our law to govern our operations. The United States does not permit, tolerate, or condone torture under any circumstances.
International law allows a state to detain enemy combatants for the duration of hostilities. Detainees may only be held for an extended period if the intelligence or other evidence against them has been carefully evaluated and supports a determination that detention is lawful. The U.S. does not seek to hold anyone for a period beyond what is necessary to evaluate the intelligence or other evidence against them, prevent further acts of terrorism, or hold them for legal proceedings. 
United States, Department of State, Remarks Upon Her Departure for Europe, Secretary C. Rice, Andrews Air Force Base, 5 December 2005.
United States of America
In March 2006, the US Government issued a written response to a report produced by a group of five special rapporteurs to the United Nations Commission on Human Rights, dated 16 February 2006, which was critical of US policy regarding detainees at Guantánamo Bay, Cuba. The US Government’s response stated in part:
The law of armed conflict governs the conduct of armed conflict and related detention operations, and permits lawful and unlawful enemy combatants to be detained until the end of active hostilities without charges, trial, or access to counsel.
• Combatants may be detained to prevent them from taking up arms against the United States.
• This is the principal reason for Guantánamo detention, an important point which the Report questions and disregards.
• It is also the reason why the United States has given the International Committee of the Red Cross, rather than human rights rapporteurs, unimpeded access to the detainees at Guantánamo.
Prisoners of war may be detained until the end of active hostilities, and in recognition of battlefield conditions, investigation and prosecution of combatant detainees is not required unless they are charged with a crime. The Report does not question this well-established precept of international humanitarian law, yet nevertheless assails the United States for applying a similar detention regime to unlawful combatants, who are not eligible for POW status due to their failure to heed the basic law of war. The approach called for by the Report is unprecedented, and indeed would turn international humanitarian law on its head by affording greater protections to unlawful combatants than to lawful ones. This is not, and cannot be, the law. To the contrary, it is the view of the United States Government that we cannot have an international legal system in which honorable soldiers who abide by the law of armed conflict and are captured on the battlefield may be detained and held until the end of a war without access to courts or counsel, but terrorist combatants who violate those very laws must be given special privileges or released and allowed to continue their belligerent or terrorist activities. Such a legal regime would signal to the international community that it is acceptable for armies to behave like terrorists.
In summary, the law of war applies to the conduct of war and related detention operations. The law of war allows the United States – and any other country engaged in armed conflict – to hold enemy combatants without charges or access to counsel for the duration of active hostilities. That is not to say that all detainees will be held until the overall end of hostilities. The United States – not because of any international law obligation – voluntarily has implemented measures to minimize the duration of detention. Our fight against Al Qaida is different from traditional armed conflicts in that it is not a state-to-state conflict, in which there generally is an identifiable conclusion of hostilities, after which each side releases those combatants it has detained. Sensitive to this reality, the United States evaluates each Guantánamo detainee individually, to determine whether he no longer poses a serious danger of returning to hostilities against us. This concept of an individual analysis has some support in historical practices that contemplate parole, as well as releases of enemy combatants held for extended periods, based on individualized determinations that the combatant does not present a continuing threat.
Detention is not an act of punishment but of security and military necessity. It serves the purpose of preventing combatants from continuing to take up arms against the United States. These are the long-standing, applicable rules of the law of war. 
United States, Reply of the Government of the United States of America to the Report of the Five UNCHR Special Rapporteurs on Detainees in Guantánamo Bay, Cuba, 10 March 2006, pp. 11, 17 and 24.
United States of America
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
To win the war on terror, we must be able to detain, question, and, when appropriate, prosecute terrorists captured here in America, and on the battlefields around the world.
After the 9/11 attacks, our coalition launched operations across the world to remove terrorist safe havens, and capture or kill terrorist operatives and leaders. Working with our allies, we’ve captured and detained thousands of terrorists and enemy fighters in Afghanistan, in Iraq, and other fronts of this war on terror. These enemy – these are enemy combatants, who were waging war on our nation. We have a right under the laws of war, and we have an obligation to the American people, to detain these enemies and stop them from rejoining the battle.
Most of the enemy combatants we capture are held in Afghanistan or in Iraq, where they’re questioned by our military personnel. Many are released after questioning, or turned over to local authorities – if we determine that they do not pose a continuing threat and no longer have significant intelligence value. Others remain in American custody near the battlefield, to ensure that they don’t return to the fight.
In some cases, we determine that individuals we have captured pose a significant threat, or may have intelligence that we and our allies need to have to prevent new attacks. Many are al Qaeda operatives or Taliban fighters trying to conceal their identities, and they withhold information that could save American lives. In these cases, it has been necessary to move these individuals to an environment where they can be held secretly [sic], questioned by experts, and – when appropriate – prosecuted for terrorist acts.
[I]n addition to the terrorists held at Guantánamo, a small number of suspected terrorist leaders and operatives captured during the war have been held and questioned outside the United States, in a separate program operated by the Central Intelligence Agency. This group includes individuals believed to be the key architects of the September the 11th attacks, and attacks on the USS Cole, an operative involved in the bombings of our embassies in Kenya and Tanzania, and individuals involved in other attacks that have taken the lives of innocent civilians across the world. These are dangerous men with unparalleled knowledge about terrorist networks and their plans for new attacks. The security of our nation and the lives of our citizens depend on our ability to learn what these terrorists know.
Many specifics of this program, including where these detainees have been held and the details of their confinement, cannot be divulged. Doing so would provide our enemies with information they could use to take retribution against our allies and harm our country. I can say that questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world. Today, I’m going to share with you some of the examples provided by our intelligence community of how this program has saved lives; why it remains vital to the security of the United States, and our friends and allies; and why it deserves the support of the United States Congress and the American people.
This program has been subject to multiple legal reviews by the Department of Justice and CIA lawyers; they’ve determined it complied with our laws. This program has received strict oversight by the CIA’s Inspector General. A small number of key leaders from both political parties on Capitol Hill were briefed about this program. All those involved in the questioning of the terrorists are carefully chosen and they’re screened from a pool of experienced CIA officers. Those selected to conduct the most sensitive questioning had to complete more than 250 additional hours of specialized training before they are allowed to have contact with a captured terrorist.
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision [Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs. 
United States, President George W. Bush, White House speech, President Discusses Creation of Military Commissions to Try Suspected Terrorists, 6 September 2006.
United States of America
In 2007, in its comments on the concluding observations of the Human Rights Committee on the United States’ second and third periodic reports, the United States stated in response to a recommendation concerning the practice of secret detention:
The United States is engaged in an armed conflict with al Qaida, the Taliban, and their supporters. As part of this conflict, the United States captures and detains enemy combatants, and is entitled under the law of war to hold them until the end of hostilities. The law of war, and not the Covenant [1966 International Covenant on Civil and Political Rights], is the applicable legal framework governing these detentions.
In certain rare cases, the United States moves enemy combatants to secret locations. As the President of the United States stated in a September 6, 2006 speech, “Questioning the detainees in this program has given us information that has saved innocent lives by helping us stop new attacks – here in the United States and across the world.” …
All of the detainees who were in this secret interrogation program as of September 6, 2006, were moved to the Department of Defense detention facility at Guantánamo Bay. 
United States, Comments by the US government on the concluding observations of the Human Rights Committee, 12 February 2008, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.1, submitted 1 November 2007, p. 3.
[footnote in original omitted]
United States of America
In February 2008, in a statement to Central Intelligence Agency (CIA) employees concerning the past use of Diego Garcia, the Director of the CIA stated:
The British Government announced today that the United States recently provided information on rendition flights through Diego Garcia – a UK territory in the Indian Ocean – that contradicted earlier data from us. Our government had told the British that there had been no rendition flights involving their soil or airspace since 9/11. That information, supplied in good faith, turned out to be wrong. In fact, on two different occasions in 2002, an American plane with a detainee aboard stopped briefly in Diego Garcia for refueling. Neither of those individuals was ever part of CIA’s high-value terrorist interrogation program. One was ultimately transferred to Guantánamo, and the other was returned to his home country. These were rendition operations, nothing more. There has been speculation in the press over the years that CIA had a holding facility on Diego Garcia. That is false. There have also been allegations that we transport detainees for the purpose of torture. That, too, is false. …
In late 2007, CIA itself took a fresh look at records on rendition flights. This time, the examination revealed the two stops in Diego Garcia. The refueling, conducted more than five years ago, lasted just a short time. But it happened. That we found this mistake ourselves, and that we brought it to the attention of the British Government, in no way changes or excuses the reality that we were in the wrong. 
United States, Statement by the Director of the Central Intelligence Agency, “Past Use of Diego Garcia”, 21 February 2008.
United States of America
In 2009, in further comments to the Human Rights Committee on that committee’s concluding observations of the United States’ second and third periodic reports, the United States stated:
[O]n January 22, 2009, President Obama signed three executive orders relating to U.S. detention and interrogation policies broadly and the Guantánamo Bay detention facility specifically. Section 4 of Executive Order 13491 (“Ensuring Lawful Interrogations”) instructs the CIA to close any detention facilities that it operates and forbids the CIA from operating any detention facilities in the future. 
United States, Further comments by the US government on the concluding observations of the Human Rights Committee, 24 September 2009, UN Doc. CCPR/C/USA/CO/3/Rev.1/Add.2, submitted 24 July 2009.
United States of America
In March 2010, the US State Department’s legal adviser stated:
1. Detention
With respect to detention, as you know, the last Administration’s detention practices were widely criticized around the world, and as a private citizen, I was among the vocal critics of those practices. This Administration and I personally have spent much of the last year seeking to revise those practices to ensure their full compliance with domestic and international law … [including] by ensuring that all detained individuals are being held pursuant to lawful authorities.
a. Treatment
… The President ordered CIA “black sites” closed and directed the Secretary of Defense to conduct an immediate review – with two follow-up visits by a blue ribbon task force of former government officials – to ensure that the conditions of detention at Guantánamo fully comply with Common Article 3 of the [1949] Geneva Conventions.
b. Legal Authority to Detain
Some have asked what legal basis we have for continuing to detain those held on Guantánamo and at Bagram. But as a matter of both international and domestic law, the legal framework is well-established. As a matter of international law, our detention operations rest on three legal foundations. First, we continue to fight a war of self-defense against an enemy that attacked us on September 11, 2001, and before, and that continues to undertake armed attacks against the United States. Second, in Afghanistan, we work as partners with a consenting host government. And third, the United Nations Security Council has, through a series of successive resolutions, authorized the use of “all necessary measures” by the NATO countries constituting the International Security Assistance Force (ISAF) to fulfill their mandate in Afghanistan. As a nation at war, we must comply with the laws of war, but detention of enemy belligerents to prevent them from returning to hostilities is a well-recognized feature of the conduct of armed conflict, as the drafters of Common Article 3 and [1977] Additional Protocol II recognized and as our own Supreme Court recognized in Hamdi v. Rumsfeld.
Second, unlike the last administration, as a matter of international law, this Administration has expressly acknowledged that international law informs the scope of our detention authority. Both in our internal decisions about specific Guantánamo detainees, and before the courts in habeas cases, we have interpreted the scope of detention authority authorized by Congress in the AUMF [The Authorization for the Use of Military Force (2001)] as informed by the laws of war. Those laws of war were designed primarily for traditional armed conflicts among states, not conflicts against a diffuse, difficult-to-identify terrorist enemy, therefore construing what is “necessary and appropriate” under the AUMF requires some “translation,” or analogizing principles from the laws of war governing traditional international conflicts.
Some commentators have criticized our decision to detain certain individuals based on their membership in a non-state armed group. But as those of you who follow the Guantánamo habeas litigation know, we have defended this position based on the AUMF, as informed by the text, structure, and history of the Geneva Conventions and other sources of the laws of war. Moreover, while the various judges who have considered these arguments have taken issue with certain points, they have accepted the overall proposition that individuals who are part of an organized armed group like al-Qaeda can be subject to law of war detention for the duration of the current conflict. In sum, we have based our authority to detain not on conclusory labels, like “enemy combatant,” but on whether the factual record in the particular case meets the legal standard. This includes, but is not limited to, whether an individual joined with or became part of al-Qaeda or Taliban forces or associated forces, which can be demonstrated by relevant evidence of formal or functional membership, which may include an oath of loyalty, training with al-Qaeda, or taking positions with enemy forces. Often these factors operate in combination. While we disagree with the International Committee of the Red Cross on some of the particulars, our general approach of looking at “functional” membership in an armed group has been endorsed not only by the federal courts, but also is consistent with the approach taken in the targeting context by the ICRC in its recent study on Direct Participation in Hostilities (DPH). 
United States, Speech by the legal adviser, US Department of State, “The Obama Administration and International Law”, given at the Annual Meeting of the American Society of International Law, Washington DC, 25 March 2010.
[emphasis in original]
United States of America
In May 2010, the US President issued the 2010 National Security Strategy, which stated:
Legal Aspects of Countering Terrorism. The increased risk of terrorism necessitates a capacity to detain and interrogate suspected violent extremists, but that framework must align with our laws to be effective and sustainable. … For detainees who cannot be prosecuted – but pose a danger to the American people – we must have clear, defensible, and lawful standards. We must have fair procedures and a thorough process of periodic review, so that any prolonged detention is carefully evaluated and justified. And keeping with our Constitutional system, it will be subject to checks and balances. The goal is an approach that can be sustained by future Administrations, with support from both political parties and all three branches of government. 
United States, Report by the President of the United States, “2010 National Security Strategy”, The White House, Washington DC, 26 May 2010, p. 36.
United States of America
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State’s legal adviser stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. The Obama Administration abides by all applicable law in these armed conflicts, including laws respecting … detention. … We defend the legality under the laws of war of using detention to remove adversaries from the conflict. 
United States, Statement by the legal adviser, US Department of State, before the UN Human Rights Council, Geneva, 9 November 2010, p. 2.
Venezuela
In 2012, in its fourth periodic report to the Human Rights Committee, Venezuela stated:
55. With regard to the protection of rights enshrined in the Constitution of the Bolivarian Republic of Venezuela in states of emergency, articles 337 to 339 provide that guarantees contained in the Constitution may be temporarily suspended, with the exception of “those relating to the right to life, the prohibition of the holding of persons incommunicado or torture, the right to due process, the right to information and other intangible human rights”.
56. On the question of legislative action to give effect to this constitutional provision, it is important to note that, under the present Government, no state of emergency has been decreed, notwithstanding the fuel shortage during the 2002 oil strike or coup d’état.
57. The Venezuelan State legislated on the matter and in 2001 the States of Emergency Act entered into force, setting out in its article 7 the relevant guiding principles. Under that article, and in accordance with article 339 of the Constitution of the Bolivarian Republic of Venezuela, article 4, paragraph 2, of the International Covenant on Civil and Political Rights and article 27, paragraph 2, of the American Convention on Human Rights, no restrictions can be placed on guarantees relating [inter alia to the right to … personal freedom[.]
58. Continuing with the interpretation of constitutional precepts, article 338 covers the three kinds of states of emergency and establishes, in accordance with the principle of gradualism, factual circumstances that may justify them and their limitation in time … [A] state of internal or external disturbance may be declared in the event of internal or external conflict that seriously endangers the security of the nation, its citizens or institutions, for a period of up to 90 days, renewable for the same period of time. 
Venezuela, Fourth periodic report to the Human Rights Committee, 29 April 2013, UN Doc. CCPR/C/VEN/4, submitted 18 December 2012, §§ 55–58.
[footnotes in original omitted]
UN Security Council
In a number of resolutions on South Africa adopted between 1976 and 1985, the UN Security Council condemned mass arbitrary arrests and detentions and described the use of detention without trial as totally unacceptable. 
UN Security Council, Res. 392, 19 June 1976, preamble and § 1, voting record: 15-0-0; Res. 417, 31 October 1977, preamble and § 3, voting record: 15-0-0; Res. 473, 13 June 1980, preamble, voting record: 15-0-0.; Res. 556, 23 October 1984, preamble and § 2, voting record: 14-0-1; Res. 560, 12 March 1985, § 2, voting record: 15-0-0; Res. 569, 26 July 1985, preamble and § 2, voting record: 13-0-2.
UN Security Council
In two resolutions adopted in 1995, the UN Security Council expressed grave concern at and condemned in the strongest possible terms violations of IHL and human rights in Bosnia and Herzegovina, including evidence of a consistent pattern of arbitrary detentions. 
UN Security Council, Res. 1019, 9 November 1995, preamble, voting record: 15-0-0; Res. 1034, 21 December 1995, preamble and § 2, voting record: 15-0-0.
UN Security Council
In a resolution adopted in 1996, the UN Security Council expressed deep concern at the deterioration in security and in the humanitarian situation in Burundi, including arbitrary detention. 
UN Security Council, Res. 1072, 30 August 1996, preamble, voting record: 15-0-0.
UN General Assembly
In a resolution adopted in 1974 on the protection of women and children in emergency and armed conflict, the UN General Assembly stated that all forms of repression “including imprisonment … shall be considered criminal”. 
UN General Assembly, Res. 3318 (XXIX), 14 December 1974, § 5, voting record: 110-0-14-14.
UN General Assembly
In a resolution adopted in 1981 on the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the UN General Assembly:
Demands that the Government of Israel, the occupying Power, rescind the illegal measures taken by the Israeli military occupation authorities in expelling and imprisoning the Mayors of Hebron and Halhul and in expelling the Sharia Judge of Hebron and that it facilitate the immediate return of the expelled Palestinian leaders so that they can resume the functions for which they were elected and appointed. 
UN General Assembly, Res. 36/147 D, 16 December 1981, § 1, voting record: 143-1-2-11.
UN General Assembly
In a resolution adopted in 1982 on the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the UN General Assembly:
Demands once more that the Government of Israel, the occupying Power, rescind the illegal measures taken by the Israeli military occupation authorities in expelling and imprisoning the Mayors of Hebron and Halhul and in expelling the Sharia Judge of Hebron and that it facilitate the immediate return of the expelled Palestinian leaders so that they can resume the functions for which they were elected and appointed.  
UN General Assembly, Res. 37/88 D, 10 December 1982, § 1, voting record: 133-1-1-22.
UN General Assembly
In a resolution adopted in 1983 on the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the UN General Assembly:
Demands once more that the Government of Israel, the occupying Power, rescind the illegal measures taken by the Israeli military occupation authorities in expelling and imprisoning the Mayors of Hebron and Halhul and in expelling the Sharia Judge of Hebron and that it facilitate the immediate return of the expelled Palestinian leaders so that they can resume the functions for which they were elected and appointed. 
UN General Assembly, Res. 38/79 E, 15 December 1983, § 1, voting record: 146-1-1-10.
UN General Assembly
In a resolution adopted in 1984 on the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the UN General Assembly:
Demands once more that the Government of Israel, the occupying Power, rescind the illegal measures taken by the Israeli military occupation authorities in expelling and imprisoning the Mayors of Hebron and Halhul and in expelling the Sharia Judge of Hebron and that it facilitate the immediate return of the expelled Palestinian leaders so that they can resume the functions for which they were elected and appointed. 
UN General Assembly, Res. 39/95 E, 14 December 1984, § 1, voting record: 143-1-1-14.
UN General Assembly
In a resolution adopted in 1985 on the report of the Special Committee to Investigate Israeli Practices Affecting the Human Rights of the Population of the Occupied Territories, the UN General Assembly:
1. Calls upon Israel to release all Arabs arbitrarily detained and/or imprisoned as a result of their struggle for self-determination and for the liberation of their territories;
2. Notes the initial release of Ziyad Abu Eain, among others, from prison on 20 May 1985;
3. Deplores the Israeli subsequent arbitrary detention of Ziyad Abu Eain and others. 
UN General Assembly, Res. 40/161 A, 16 December 1985, §§ 1–3, voting record: 95-2-37.
UN General Assembly
In a resolution adopted in 1995 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN General Assembly expressed its grave concern at reports of “grave violations of international humanitarian law and of human rights … including … unlawful detention”. 
UN General Assembly, Res. 50/193, 22 December 1995, preamble, voting record: 144-1-20-20.
UN General Assembly
In a resolution adopted in 2000 on the Sudan, the UN General Assembly expressed its deep concern at continuing serious violations of human rights and IHL by all parties, in particular arbitrary detention. 
UN General Assembly, Res. 55/116, 4 December 2000, § 2(ii), voting record: 85-32-49-23.
UN General Assembly
In a resolution adopted in 2003 on the safety and security of humanitarian personnel and protection of United Nations personnel, the UN General Assembly:
Strongly condemning acts of … illegal arrest and detention to which those participating in humanitarian operations are increasingly exposed …
12. Calls upon all States to provide adequate and prompt information in the event of the arrest or detention of humanitarian personnel or United Nations and its associated personnel, to afford them the necessary medical assistance and to allow independent medical teams to visit and examine the health of those detained, and urges them to take the necessary measures to ensure the speedy release of United Nations and other personnel carrying out activities in fulfilment of the mandate of a United Nations operation who have been arrested or detained in violation of their immunity, in accordance with the relevant conventions referred to in the present resolution and applicable international humanitarian law. 
UN General Assembly, Res. 58/122, 17 December 2003, preamble and § 12, adopted without a vote.
UN General Assembly
In a resolution adopted in 2003 on the elimination of all forms of religious intolerance, the UN General Assembly urged States to ensure that “no one within their jurisdiction is, because of their religion or belief, deprived of … the right not to be arbitrarily arrested or detained, and to protect their physical integrity and bring to justice all perpetrators of violations”. 
UN General Assembly, Res. 58/184, 22 December 2003, § 3, voting record: 179-0-1-11.
UN General Assembly
In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN General Assembly condemned “the cases of summary or arbitrary execution, disappearance, torture, harassment, unlawful arrest, widespread persecution and arbitrary detention for long periods”. 
UN General Assembly, Res. 58/196, 22 December 2003, § 2(e), voting record: 81-2-91-17.
UN General Assembly
In a resolution adopted in 2004 on the elimination of all forms of religious intolerance, the UN General Assembly urged States to ensure that “no one within their jurisdiction is, because of their religion or belief, deprived of … the right not to be arbitrarily arrested or detained, and to protect their physical integrity and bring to justice all perpetrators of violations”. 
UN General Assembly, Res. 59/199, 20 December 2004, § 3, voting record: 186-0-0-5.
UN General Assembly
In a resolution adopted in 2004 on the safety and security of humanitarian personnel and protection of United Nations personnel, the UN General Assembly:
Strongly condemning … the illegal arrest and detention to which those participating in humanitarian operations are increasingly exposed, …
11. Urges States to take the necessary measures to ensure the speedy release of those who have been arrested or detained in violation of the relevant conventions referred to … and applicable international humanitarian law;
12. Calls upon all other parties involved in armed conflicts to refrain from abducting humanitarian personnel or United Nations and its associated personnel or detaining them in violation of the relevant conventions referred to … and applicable international humanitarian law, and speedily to release, without harm or requirement of concession, any abductee or detainee. 
UN General Assembly, Res. 59/211, 20 December 2004, preamble and §§ 11–12, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on the safety and security of humanitarian personnel and protection of United Nations personnel, the UN General Assembly:
Strongly condemning acts of … illegal arrest and detention to which those participating in humanitarian operations are increasingly exposed …
10. Calls upon all States to provide adequate and prompt information in the event of the arrest or detention of humanitarian personnel or United Nations and associated personnel, so as to afford them the necessary medical assistance and to allow independent medical teams to visit and examine the health of those detained, and urges them to take the necessary measures to ensure the speedy release of those who have been arrested or detained in violation of the relevant conventions referred to in the present resolution and applicable international humanitarian law;
11. Calls upon all other parties involved in armed conflicts to refrain from abducting humanitarian personnel or United Nations and associated personnel or detaining them in violation of the relevant conventions referred to in the present resolution and applicable international humanitarian law, and speedily to release, without harm or requirement of concession, any abductee or detainee. 
UN General Assembly, Res. 60/123, 15 December 2005, preamble and §§ 10–11, adopted without a vote.
UN General Assembly
In a resolution adopted in 2005 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly urged States to ensure that “no one within their jurisdiction is deprived of the right to life, liberty or security of person because of religion or belief and that no one is subjected to torture or arbitrary arrest or detention on that account and to bring to justice all perpetrators of violations of these rights”. 
UN General Assembly, Res. 60/166, 16 December 2005, § 4(f), adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly urged States to ensure that “no one within their jurisdiction is deprived of the right to life, liberty or security of person because of religion or belief and that no one is subjected to torture or arbitrary arrest or detention on that account and to bring to justice all perpetrators of violations of these rights”. 
UN General Assembly, Res. 61/161, 19 December 2006, § 4(f), adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on the protection of human rights and fundamental freedoms while countering terrorism, the UN General Assembly:
Opposes any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law, and urges States to respect the safeguards concerning the liberty, security and dignity of the person and to treat all prisoners in all places of detention in accordance with international law, including human rights law and international humanitarian law. 
UN General Assembly, Res. 61/171, 19 December 2006, § 8, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Reminds all States that prolonged incommunicado detention or detention in secret places can facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment and can in itself constitute a form of such treatment, and urges all States to respect the safeguards concerning the liberty, security and dignity of the person. 
UN General Assembly, Res. 62/148, 18 December 2007, § 15, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN General Assembly urged States to ensure that “no one within their jurisdiction is deprived of the right to life, liberty or security of person because of religion or belief and that no one is subjected to torture or arbitrary arrest or detention on that account and to bring to justice all perpetrators of violations of these rights”. 
UN General Assembly, Res. 62/157, 18 December 2007, § 10(b), adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on the protection of human rights and fundamental freedoms while countering terrorism, the UN General Assembly:
Noting with concern measures that can undermine human rights and the rule of law, such as the detention of persons suspected of acts of terrorism in the absence of a legal basis for detention and due process guarantees, the deprivation of liberty that amounts to placing a detained person outside the protection of the law, the trial of suspects without fundamental judicial guarantees, the illegal deprivation of liberty and transfer of individuals suspected of terrorist activities …
10. Opposes any form of deprivation of liberty that amounts to placing a detained person outside the protection of the law, and urges States to respect the safeguards concerning the liberty, security and dignity of the person and to treat all prisoners in all places of detention in accordance with international law, including human rights law and international humanitarian law. 
UN General Assembly, Res. 62/159, 18 December 2007, preamble and § 10, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996 on the situation of human rights in the Republic of Bosnia and Herzegovina, the Republic of Croatia and the Federal Republic of Yugoslavia (Serbia and Montenegro), the UN Commission on Human Rights condemned “in the strongest terms all violations of human rights and [IHL] … in particular massive and systematic violations, including … detentions”. 
UN Commission on Human Rights, Res. 1996/71, 23 April 1996, § 1, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1996 on the Sudan, the UN Commission on Human Rights called upon all parties to the hostilities to protect all civilians from violations of human rights and IHL, including arbitrary detention. 
UN Commission on Human Rights, Res. 1996/73, 23 April 1996, § 15, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 1998, the UN Commission on Human Rights called for the immediate and unconditional release and safe return of all children abducted from northern Uganda and held by the Lord’s Resistance Army (LRA). 
UN Commission on Human Rights, Res. 1998/75, 22 April 1998, § 5, voting record: 24-1-27.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
Gravely concerned at the continued deterioration of the situation in the occupied Palestinian territory and at the gross violations of human rights and international humanitarian law, in particular … arbitrary detentions,
14. Also expresses its deep concern once again at the massive arrests conducted by the Israeli occupying authorities against about fifteen thousand Palestinians, without trial and without any criminal charges having been brought against them, in violation of article 9 of the Universal Declaration of Human Rights and the provisions of the Fourth Geneva Convention in this respect. 
UN Commission on Human Rights, Res. 2003/6, 15 April 2003, preamble and § 14, voting record: 33-5-15.
UN Commission on Human Rights
In a resolution adopted in 2003 on the human rights situation of the Lebanese detainees in Israel, the UN Commission on Human Rights:
Condemning the persistent detention, ill treatment and torture by Israel of many Lebanese civilians who were abducted and detained in Lebanon and subsequently transferred to prisons in Israel,
Expressing its indignation at the ruling handed down on 4 March 1998 by the Supreme Court of Israel permitting the Israeli authorities to retain Lebanese detainees in Israeli prisons without trial and to hold them as hostages and for bargaining purposes and the recent renewal of their incommunicado detention, which constitutes a flagrant violation of the principles of human rights,
2. Also calls upon the Government of Israel to refrain from holding the detained Lebanese citizens incarcerated in its prisons as hostages for bargaining purposes and to release them immediately, in compliance with all the Geneva Conventions and other provisions of international law. 
UN Commission on Human Rights, Res. 2003/8, 16 April 2003, preamble and § 2, voting record: 32-1-20.
UN Commission on Human Rights
In a resolution adopted in 2003 on the situation of human rights in the Democratic Republic of the Congo, the UN Commission on Human Rights:
Noting that the Democratic Republic of the Congo is a party to several international and regional human rights instruments and to several instruments pertaining to international humanitarian law,
3. Condemns:
(e) The cases of summary or arbitrary execution, disappearance, torture, harassment, arrest, widespread persecution and arbitrary detention for long periods;
5. Calls upon the Government of the Democratic Republic of the Congo to take specific measures:
(g) Genuinely to close, in accordance with the decision of 8 March 2001, the irregular detention centres where the conditions of detention are degrading. 
UN Commission on Human Rights, Res. 2003/15, 17 April 2003, preamble and §§ 3(e) and 5(g), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the question of enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, ill-treatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,
5. Reminds Governments:
(f) That, as proclaimed in article 11 of the Declaration on the Protection of All Persons from Enforced Disappearance, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2003/38, 23 April 2003, preamble and § 5(f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the elimination of all forms of religious intolerance, the UN Commission on Human Rights urged States:
To ensure, in particular, that no one within their jurisdiction is deprived of the right to life or the right to liberty and security of person because of religion or belief, or is subjected to torture or arbitrary arrest or detention on that account, and to bring to justice all perpetrators of violations of these rights. 
UN Commission on Human Rights, Res. 2003/54, 24 April 2003, § 4(b), voting record: 51-0-2.
UN Commission on Human Rights
In a resolution adopted in 2003 on the situation of human rights in Afghanistan, the UN Commission on Human Rights noted with concern “reports of violence perpetrated by Afghan elements against certain ethnic groups, internally displaced persons and refugees who have returned, as well as cases of arbitrary arrest and detention and attacks against women and girls”.  
UN Commission on Human Rights, Res. 2003/77, 25 April 2003, § 8, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2003 on the rights of the child, the UN Commission on Human Rights called upon all States:
To take appropriate steps to ensure compliance with the principle that depriving children of their liberty should be used only as a measure of last resort and for the shortest appropriate period of time, in particular before trial, and to ensure that, if they are arrested, detained or imprisoned, children are provided with adequate legal assistance and are separated from adults, to the greatest extent feasible, unless it is considered in their best interest not to do so. 
UN Commission on Human Rights, Res. 2003/86, 25 April 2003, § 35(c), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the question of the violation of human rights in the occupied Arab territories, including Palestine, the UN Commission on Human Rights:
Taking into consideration the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Geneva Convention), the provisions of Additional Protocol I thereto of 1977 and the Hague Convention IV, of 18 October 1907, and Annexed Regulations respecting the Laws and Customs of War on Land,
Recalling resolutions of the Security Council, the General Assembly and the Commission on Human Rights relating to the applicability of the Fourth Geneva Convention to the Occupied Palestinian Territory, including East Jerusalem, since the 5 June 1967 war,
Reaffirming the applicability of the Fourth Geneva Convention to the Palestinian territories occupied since the June 1967 war, including East Jerusalem,
Gravely concerned at the continued deterioration of the situation in the Occupied Palestinian Territory and at the gross violations of human rights and international humanitarian law, in particular … arbitrary detentions …
14. Strongly condemns campaigns of massive arrests conducted by the Israeli occupation authorities to detain thousands of Palestinians without trial and without any criminal charges having been brought against them, in violation of article 9 of the Universal Declaration of Human Rights and of the provisions of the Fourth Geneva Convention in this respect. 
UN Commission on Human Rights, Res. 2004/10, 15 April 2004, preamble and § 14, voting record: 31-7-15.
UN Commission on Human Rights
In a resolution adopted in 2004 on the elimination of all forms of religious intolerance, the UN Commission on Human Rights urged States:
To ensure, in particular, that no one within their jurisdiction is deprived of the right to life or the right to liberty and security of person because of religion or belief, or is subjected to torture or arbitrary arrest or detention on that account, and to bring to justice all perpetrators of violations of these rights. 
UN Commission on Human Rights, Res. 2004/36, 19 April 2004, § 4(b), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on arbitrary detention, the UN Commission on Human Rights encouraged the governments concerned:
(c) To respect and promote the right of anyone who is deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention is not lawful, in accordance with their international obligations;
(f) To pay special attention, during states of emergency, to the exercise of those rights that ensure protection against arbitrary detention. 
UN Commission on Human Rights, Res. 2004/39, 19 April 2004, §§ 3(c) and (f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, illtreatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,
7. Reminds States:
(f) That, as proclaimed in article 11 of the Declaration, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2004/40, 19 April 2004, preamble and § 7(f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on the rights of the child, the UN Commission on Human Rights called upon all States:
To take appropriate steps to ensure compliance with the principle that depriving children of their liberty should be used only as a measure of last resort and for the shortest appropriate period of time, in particular before trial, and to ensure that, if they are arrested, detained or imprisoned, children are provided with adequate legal assistance and are separated from adults, to the greatest extent feasible, unless it is considered in their best interest not to do so. 
UN Commission on Human Rights, Res. 2004/48, 20 April 2004, § 35(c), voting record: 52-1-0.
UN Commission on Human Rights
In a resolution adopted in 2004 on the protection of United Nations personnel, the UN Commission on Human Rights:
Strongly condemning … illegal arrest and detention … and other hostile acts against United Nations and associated personnel and other personnel acting under the authority of United Nations operations, as well as personnel of international humanitarian organizations,
4. Calls upon States and others concerned:
(g) To ensure the prompt release of United Nations and associated personnel and other personnel carrying out activities in fulfilment of the mandate of a United Nations operation who have been arrested or detained in violation of their immunity, in accordance with the relevant conventions and applicable international humanitarian law. 
UN Commission on Human Rights, Res. 2004/77, 21 April 2004, preamble and § 4(g), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2004 on technical cooperation and advisory services in the Democratic Republic of the Congo, the UN Commission on Human Rights condemned “[t]he cases of … harassment, unlawful arrest, widespread persecution and arbitrary detention”. 
UN Commission on Human Rights, Res. 2004/84, 21 April 2004, § 3(c), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on Israeli practices affecting the human rights of the Palestinian people in the Occupied Palestinian Territory, including East Jerusalem, the UN Commission on Human Rights:
Recalling the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and the relevant resolutions of the Security Council and the Commission on Human Rights,
Asserting that the punitive measures imposed by Israel, the occupying Power, on the Palestinian civil population, including collective punishment, border closures and severe restrictions on the movement of people and goods, arbitrary arrests and detentions, destruction of homes and vital infrastructure, including religious, educational, cultural and historical sites, led to a steep deterioration in the socio-economic conditions, perpetuating a dire humanitarian crisis throughout the Occupied Palestinian Territory, including East Jerusalem, and affirming that these punitive measures violate the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,
1. Reiterates that all actions and punitive measures taken by Israel, the occupying Power, in the Occupied Palestinian Territory, including East Jerusalem, in violation of the relevant provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and contrary to the relevant resolutions of the Security Council, are illegal and have no validity, and thereby demands that Israel, the occupying Power, comply fully with its provisions and cease immediately all measures and actions taken in violation and in breach of the Convention, including extrajudicial executions;
6. Requests the High Commissioner for Human Rights to demand, in accordance with her mandate, the immediate release of the Palestinian detainees, including women, children and the sick, and the investigation of reported cases of torture, harassment or ill-treatment and the bringing to justice of Israeli officers involved in the abuse of detainees. 
UN Commission on Human Rights, Res. 2005/7, 14 April 2005, preamble and §§ 1 and 6, voting record: 29-10-14.
UN Commission on Human Rights
In a resolution adopted in 2005 on enforced or involuntary disappearances, the UN Commission on Human Rights:
Deeply concerned in particular by the increase in enforced or involuntary disappearances in various regions of the world, including arrest, detention and abduction, when these are part of or amount to enforced disappearances, and by the growing number of reports concerning harassment, illtreatment and intimidation of witnesses of disappearances or relatives of persons who have disappeared,
6. Reminds States:
(f) That, as proclaimed in article 11 of the Declaration, all persons deprived of liberty must be released in a manner permitting reliable verification that they have actually been released and, further, have been released in conditions in which their physical integrity and ability fully to exercise their rights are assured. 
UN Commission on Human Rights, Res. 2005/27, 19 April 2005, preamble and § 6(f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on arbitrary detention, the UN Commission on Human Rights:
3. Encourages all States:
(c) To respect and promote the right of anyone who is deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention is not lawful, in accordance with their international obligations;
4. Encourages all States concerned:
(a) Not to extend states of emergency beyond what is strictly required by the situation, in accordance with the provisions of article 4 of the International Covenant on Civil and Political Rights, or to limit their effect;
(b) To pay special attention, during states of emergency, to the exercise of those rights that ensure protection against arbitrary detention. 
UN Commission on Human Rights, Res. 2005/28, 19 April 2005, §§ 3(c) and 4(a)–(b), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN Commission on Human Rights urged States:
To ensure that no one within their jurisdiction is deprived of the right to life, liberty, or security of person because of religion or belief and that no one is subjected to torture or arbitrary arrest or detention on that account, and to bring to justice all perpetrators of violations of these rights. 
UN Commission on Human Rights, Res. 2005/40, 19 April 2005, § 4(f), adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on technical cooperation and advisory services in Nepal, the UN Commission on Human Rights:
Deeply concerned about the arbitrary arrests and secret detention, in particular of political leaders and activists, human rights defenders, journalists and others …
3. Calls upon the Government of Nepal to reinstate immediately all civil and political rights, to cease all state of emergency-related and other arbitrary arrests …
8. Urges the Government of Nepal:
(a) To take all necessary measures to prevent and put an end to … arbitrary arrests, illegal incommunicado detention as well as torture and other cruel, inhuman or degrading treatment or punishment. 
UN Commission on Human Rights, Res. 2005/78, 20 April 2005, preamble and §§ 3 and 8(a), adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2006 on the human rights situation in the Occupied Palestinian Territory, the UN Human Rights Council:
Affirming the applicability of the Geneva Convention relative to the Protection of Civil Persons in Time of War, of 12 August 1949, to the Occupied Palestinian Territory, including East Jerusalem, and to other occupied Arab territories,
Expressing deep concern at the breaches by Israel, the occupying Power, of international humanitarian law and human rights law in the Occupied Palestinian Territory, including the arbitrary arrest of Palestinian ministers, members of the Palestinian Legislative Council and other officials, as well as the arbitrary arrest of other civilians …
4. Urges Israel, the occupying Power, to immediately release the arrested Palestinian ministers, members of the Palestinian Legislative Council and other officials, as well as all other arrested Palestinian civilians. 
UN Human Rights Council, Res. S-1/1, 6 July 2006, preamble and § 4, voting record: 29-11-5.
UN Human Rights Council
In a resolution adopted in 2007 on arbitrary detention, the UN Human Rights Council encouraged all States:
(c) To respect and promote the right of anyone who is arrested or detained on a criminal charge to be brought promptly before a judge or other officer authorized by law to exercise judicial power and to be entitled to trial within a reasonable time or to release;
(d) To respect and promote the right of anyone who is deprived of his/her liberty by arrest or detention to be entitled to bring proceedings before a court, in order that the court may decide without delay on the lawfulness of his/her detention and order his/her release if the detention is not lawful, in accordance with their international obligations;
(e) To ensure that the right deferred to in subparagraph (d) above is equally respected in cases of administrative detention, including administrative detentions in relation to public security legislation;
(f) To ensure that the conditions of pretrial detention do not undermine the fairness of the trial. 
UN Human Rights Council, Res. 6/4, 28 September 2007, § 5(c)–(f), adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2007 on the elimination of all forms of intolerance and of discrimination based on religion or belief, the UN Human Rights Council urged States:
To ensure that, on account of religion or belief or the expression or manifestation of religion or belief, no one within their jurisdiction is deprived of the right to … liberty or security of person, subjected to … arbitrary arrest or detention, … , and to bring to justice all perpetrators of violations of these rights. 
UN Human Rights Council, Res. 6/37, 14 December 2007, § 9(i), voting record: 29-0-18.
UN Sub-Commission on Human Rights
In a resolution adopted in 1988 on the situation in the Palestinian and Arab territories occupied by Israel, the UN Sub-Commission on Human Rights:
Reaffirms that the Fourth Geneva Convention relative to the Protection of Civilian Persons in time of War of 12 August 1949 is applicable to the Palestinians and to the Palestinian and other Arab territories occupied by Israel, and that Israel’s violation of the provisions of these Conventions, by torturing the Palestinian detainees and treating them in an inhuman manner, imposing collective punishment and administrative detention on thousands of them, expelling and deporting the citizens outside their normal homeland by force and attacking and destroying properties and homes, are crimes of war under international law. 
UN Sub-Commission on Human Rights, Res. 1988/10, 31 August 1988, § 3.
UN Sub-Commission on Human Rights
In a resolution adopted in 1989 on the situation in the Palestinian and other Arab territories occupied y Israel, the UN Sub-Commission on Human Rights:
Reaffirms that the Fourth Geneva Convention relative to the Protection of Civilian Persons in time of War of 12 August 1949 is applicable to the Palestinians and to the Palestinian and other Arab territories occupied by Israel, and that Israel’s violation of the provisions of these Conventions, by torturing the Palestinian detainees and treating them in an inhuman manner, imposing collective punishment and administrative detention on thousands of them, expelling and deporting the citizens outside their normal homeland by force and attacking and destroying properties and homes, are crimes of war under international law. 
UN Sub-Commission on Human Rights, Res. 1989/4, 31 August 1989, § 3.
GCC Supreme Council
In the Final Communiqué of its 13th Session in 1992, the GCC Supreme Council reaffirmed its conviction that “arbitrary arrests represent a total contravention of all the Charters, Laws and Conventions of the International Community of Nations”. 
GCC, Supreme Council, 13th Session, Abu Dhabi, 21–23 December 1992, Final Communiqué, annexed to Letter dated 24 December 1992 from the UAE to the UN Secretary-General, UN Doc. A/47/845-S/25020, 30 December 1992, p. 6.
League of Arab States Council
In a resolution adopted in 1997, the League of Arab States Council decided “to denounce Israel’s persistent violations of human rights in the occupied areas of South Lebanon and the Western Beka’a, exemplified by the kidnapping and arbitrary imprisonment of civilians”. 
League of Arab States, Council, Res. 5635, 31 March 1997, § 1.
World Conference on Human Rights
In the Vienna Declaration and Programme of Action, the World Conference on Human Rights in 1993 expressed dismay and condemnation that “gross and systematic violations and situations that constitute serious obstacles to the full enjoyment of all human rights continue to occur in all parts of the world, [including] … arbitrary detentions”. 
World Conference on Human Rights, Vienna, 14–25 June 1993, Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July 1993, § I(30).
African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict
The Final Declaration adopted by the African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict in 2002 expressed deep concern about “the number and expansion of conflicts in Africa” and alarm at “the spread of violence, in particular in the form of arbitrary detention … which seriously violate[s] the rules of International Humanitarian Law”. 
African Parliamentary Conference on International Humanitarian Law for the Protection of Civilians during Armed Conflict, Niamey, 18–20 February 2002, Final Declaration, preamble.
International Criminal Tribunal for Rwanda
In the Kajelijeli case before the ICTR in 2001, the accused, Juvénal Kajelijeli, who was bourgmestre (mayor) of the Mukingo commune, Rwanda, from 1988 to 1993 and was re-appointed bourgmestre in June 1994 until mid-July 1994, was charged for his alleged involvement with various crimes committed against the Tutsi population in Rwanda in 1994. The Trial Chamber subsequently found the accused guilty of both genocide and of extermination, for which he received two sentences of imprisonment for the remainder of his life. He was also found guilty of direct and public incitement to commit genocide, for which he was sentenced to 15 years’ imprisonment. 
ICTR, Kajelijeli case, Judgment, 1 December 2003, §§ 942 and 968.
In its judgment in 2005, the Appeals Chamber considered the law regarding arbitrary detention and the deprivation of liberty:
224. Under international human rights law, Article 9 of the ICCPR [International Covenant on Civil and Political Rights] establishes that everyone has the right to liberty and security of person and no one shall be subject to arbitrary arrest and deprivation of liberty without due process of law. Article 5(1) (c) of the ECHR [European Convention on Human Rights] specifies that “the lawful arrest … of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so,” is permissible, but only where it is effected according to due process of law. With regard to being informed of the reasons for the arrest, Article 9(2) of the ICCPR stipulates that everyone who is arrested shall be informed promptly in a language he or she understands of the reason for the arrest and shall also be informed promptly of any charge against him or her.
226. … Although the Appellant was lawfully apprehended pursuant to Rule 40 of the Rules, the manner in which the arrest was carried out was not according to due process of law because the Appellant was not promptly informed of the reasons for his arrest. As held by the Appeals Chamber in Semanza, a suspect arrested at the behest of the Tribunal has a right to be promptly informed of the reasons for his or her arrest, and this right comes into effect from the moment of arrest and detention …
229. Under international human rights law, no one shall be subject to arbitrary detention without due process of law pursuant to the right to liberty and security of person as found in Article 9 of the ICCPR. Subsequent to arrest and detention, everyone has the right to be informed promptly in a language he or she understands of the nature and cause of the charges against him or her pursuant to Articles 9(2) and 14(3)(a) of the ICCPR. The suspect’s right to be promptly informed of the charges against him or her serves two purposes: 1) it “counterbalances the interest of the prosecuting authority in seeking continued detention of the suspect” by giving the suspect “the opportunity to deny the offence and obtain his release prior to the initiation of trial proceedings”; and 2) it “gives the suspect information he requires in order to prepare his defence.” Generally, international human rights standards view provisional detention of a suspect without charge as an exception, rather than the rule. However, such detention is lawful under international law as long as it is as short as possible, not extending beyond a reasonable period of time. The Human Rights Committee has found that pre-trial detention of a suspect without appearance before a Judge and without charge for 42 days is unreasonable under Article 9 of the ICCPR …
232. … The Appeals Chamber notes that there are important purposes underlying the right to be promptly brought before a Judge in the requested State, inter alia: to allow for the suspect to be informed of the provisional charges against him or her; to ascertain the identity of the detained suspect; to ensure that the suspect’s rights are being respected while in detention; and to give the suspect an opportunity to voice any complaints. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, §§ 224, 226, 229 and 232.
The Appeals Chamber subsequently found that the appellant had been impermissibly detained for a total of 306 days in Benin and the UN Detention Facility (UNDF), Arusha, because 1) he was not promptly informed of the reasons for his arrest or of the provisional charges against him, and 2) he was not promptly granted an initial appearance before a judge or an official acting in a judicial capacity without undue delay. It therefore set aside the sentences imposed by the Trial Chamber and converted them into a single sentence consisting of a fixed term of 45 years’ imprisonment. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, §§ 251–253 and 323.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Mucić case in 1998, the ICTY Trial Chamber considered the issue of legality of the confinement of civilians and held:
576. Clearly, internment is only permitted when absolutely necessary. Subversive activity carried on inside the territory of a party to the conflict, or actions which are of direct assistance to an opposing party, may threaten the security of the former, which may, therefore, intern people or place them in assigned residence if it has serious and legitimate reasons to think that they may seriously prejudice its security by means such as sabotage or espionage.
577. … [T]he mere fact that a person is a national of, or aligned with, an enemy party cannot be considered as threatening the security of the opposing party where he is living and is not, therefore, a valid reason for interning him or placing him in assigned residence. To justify recourse to such measures, the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security.
581. The judicial or administrative body reviewing the decision of a party to a conflict to detain an individual must bear in mind that such measures of detention should only be taken if absolutely necessary for reasons of security. Thus, if these measures were inspired by other considerations, the reviewing body would be bound to vacate them. Clearly, the procedures established in Geneva Convention IV itself are a minimum and the fundamental consideration must be that no civilian should be kept in assigned residence or in an internment camp for a longer time than the security of the detaining party absolutely demands.
583. … [T]he confinement of civilians during armed conflict may be permissible in limited cases, but has in any event to be in compliance with the provisions of articles 42 and 43 of Geneva Convention IV. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 576–577, 581 and 583.
[emphasis in original]
The ICTY Trial Chamber found the accused guilty of grave breaches of the 1949 Geneva Convention IV (unlawful confinement of civilians). 
ICTY, Mucić case, Judgment, 16 November 1998, Part IV.
International Criminal Tribunal for the former Yugoslavia
In its judgment in the Krnojelac case in 2002, the ICTY Trial Chamber stated:
A party seeking to rely upon Article 42 of the Geneva Convention IV must show with respect to each individual who has been deprived of his liberty reasonable grounds for concluding that that individual constituted a threat to the security of the depriving party. 
ICTY, Krnojelac case, Judgment, 15 March 2002, § 123.
International Criminal Tribunal for the former Yugoslavia
In the Slobodan Milošević case before the ICTY in 2002, the accused, a former president of the Federal Republic of Yugoslavia, was charged, inter alia, with two counts of imprisonment as crimes against humanity, punishable under Article 5(e) of the 1993 ICTY Statute, and two counts of unlawful confinement as grave breaches of the 1949 Geneva Conventions, punishable under Article 2(g) of the 1993 ICTY Statute. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Croatia), 23 October 2002, §§ 63–66, Count 9; ICTY, Slobodan Milošević case, Amended Indictment (Bosnia and Herzegovina), 22 November 2002, §§ 37–39, Counts 8 and 11.
The role alleged to Milošević in campaigns to forcibly remove non-Serb civilians from areas of Croatia and Bosnia and Herzegovina formed the context of these charges. 
ICTY, Slobodan Milošević case, Second Amended Indictment (Croatia), 23 October 2002, § 6; ICTY, Slobodan Milošević case, Amended Indictment (Bosnia and Herzegovina), 22 November 2002, § 6.
Following the death of the accused, proceedings were terminated by the Trial Chamber on 14 March 2006.
International Criminal Tribunal for the former Yugoslavia
The Bralo case before the ICTY in 2005 dealt with crimes involving the multiple murder, rape, torture, unlawful confinement and inhumane treatment of Bosnian Muslim civilians, in central Bosnia and Herzegovina between January and mid-July 1993. Following a plea agreement between the accused and the prosecution, Miroslav Bralo, a former member of the Croatian Defence Council (HVO) armed forces, was charged, inter alia, with grave breaches of the 1949 Geneva Conventions (unlawful confinement of civilians) for having, between 15 May 1993 and an unknown date in July 1993, confined against her will a Bosnian Muslim woman, during which period she was repeatedly raped by the accused and members of the accused’s military unit, the “Jokers”. 
ICTY, Bralo case, Amended Indictment, 19 July 2005, §§ 28–31, Count 6.
Also, between 21 April 1993 and 10 May 1993, the accused,
in concert with other HVO soldiers maintained the confinement of Bosnian Muslim civilians and forced those civilians to dig trenches around the village of Kratine. At gun point, the prisoners worked under adverse weather conditions with limited food and rest. In addition [the accused] forced Muslim prisoners to practice a ritual of the Catholic religion under threat of physical harm and death. 
ICTY, Bralo case, Amended Indictment, 19 July 2005, § 32, Count 7.
Following a plea agreement between the accused and the office of the Prosecutor in July 2005, the accused admitted his guilt on all eight counts contained in the indictment. The Trial Chamber accepted the guilty pleas and entered a conviction for each of the eight counts charged. 
ICTY, Bralo case, Sentencing Judgment, 7 December 2005, § 3.
The accused was subsequently sentenced to 20 years’ imprisonment. 
ICTY, Bralo case, Sentencing Judgment, 7 December 2005, § 97.
The sentence was later affirmed by the Appeals Chamber. 
ICTY, Bralo case, Judgment on Sentencing Appeal, 2 April 2007, VI. Disposition.
Extraordinary Chambers in the Court of Cambodia
In the Nuon case before the ECCC in 2007, the accused, a former Cambodian acting prime minister, chairman of the Democratic Kampuchea People’s Assembly and senior member of the Central and Standing Committees of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “unlawful confinement” as a grave breach of the 1949 Geneva Conventions, and with imprisonment as a crime against humanity. 
ECCC, Nuon case, Provisional Detention Order, 19 September 2007, § 1.
The basis for these charges was the role alleged to the accused in
exercising authority and effective control over the internal security apparatus of Democratic Kampuchea (detention centres) and by directing, implementing and enforcing Party policy characterized by forcible transfers of the population, enslavement, forced labour and other inhumane acts. 
ECCC, Nuon case, Provisional Detention Order, 19 September 2007, § 2.
Extraordinary Chambers in the Court of Cambodia
In the Ieng Sary case before the ECCC in 2007, the accused, a former Cambodian Minister of Foreign Affairs and senior leader of the Central and Standing Committees of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “unlawful confinement of a civilian” as a grave breach of the 1949 Geneva Conventions, and with imprisonment as a crime against humanity. 
ECCC, Ieng Sary case, Provisional Detention Order, 14 November 2007, § 1.
The basis for these charges was the role alleged to the accused in “directing, encouraging, enforcing, or otherwise rendering support to CPK policy and practice which was characterized by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labour”. 
ECCC, Ieng Sary case, Provisional Detention Order, 14 November 2007, § 2.
Extraordinary Chambers in the Court of Cambodia
In the Khieu case before the ECCC in 2007, the accused, a former Cambodian head of State and senior leader of the Communist Party of Kampuchea (CPK), was charged, inter alia, with “unlawful confinement of a civilian” as a grave breach of the 1949 Geneva Conventions, and with imprisonment as a crime against humanity. 
ECCC, Khieu case, Provisional Detention Order, 19 November 2007, § 1.
The basis for these charges was the role alleged to the accused in
directing, encouraging, enforcing, or otherwise rendering support to CPK policy and practice which was characterized by murder, extermination, imprisonment, persecution on political grounds and other inhumane acts such as forcible transfers of the population, enslavement, and forced labour. 
ECCC, Khieu case, Provisional Detention Order, 19 November 2007, § 2.
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.
348. An initial deprivation of liberty will be arbitrary if no legal basis exists to justify it. If national law is relied upon as a justification in this regard, it must be established that the relevant provisions do not violate international law. If a legal basis for the initial deprivation does exist, it must continue to exist throughout the period of imprisonment. Where a lawful basis of imprisonment ceases to apply, continued imprisonment may be considered arbitrary.
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, §§ 347–350.
[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. Although the confinement of civilians in an armed conflict may be permissible in limited cases, the relevant provisions of Geneva Convention IV clarify that deprivation of liberty is permissible only where there are reasonable grounds to believe that the security of the State is at risk. Further, an initially lawful internment becomes unlawful if the detaining party fails to respect the detainee’s basic procedural rights or to establish an appropriate court or administrative board as prescribed in Article 43 of Geneva Convention IV.
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 General Comment on Article 9 of the 1966 International Covenant on Civil and Political Rights in 1982, the Human Rights Committee held:
The Committee points out that paragraph 1 [of Article 9 of the 1966 International Covenant on Civil and Political Rights] is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. … and in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States parties have in accordance with article 2 (3) also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the Covenant.
Also if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para. 1), information of the reasons must be given (para. 2) and court control of the detention must be available (para. 4) as well as compensation in the case of a breach (para. 5). 
Human Rights Committee, General Comment No. 8 (Article 9 of the 1966 International Covenant on Civil and Political Rights), 30 July 1982, §§ 1 and 4.
Human Rights Committee
In its General Comment on Article 4 of the 1966 International Covenant on Civil and Political Rights in 2001, the Human Rights Committee held:
11. … States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance … through arbitrary deprivations of liberty …
15. It is inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. 
Human Rights Committee, General Comment No. 29 (Article 4 of the 1966 International Covenant on Civil and Political Rights), 24 July 2001, §§ 11 and 15.
Human Rights Committee
In its concluding observations on the second periodic report of Israel in 2003, the Human Rights Committee noted its concern about the arbitrary deprivation of liberty under the then state of emergency:
As to measures derogating from article 9 [of the 1966 International Covenant on Civil and Political Rights] itself, the Committee is concerned about the frequent use of various forms of administrative detention, particularly for Palestinians from the Occupied Territories, entailing restrictions on access to counsel and to the disclosure of full reasons of the detention. These features limit the effectiveness of judicial review, thus endangering the protection against torture and other inhuman treatment prohibited under article 7 and derogating from article 9 more extensively than what in the Committee’s view is permissible pursuant to article 4. 
Human Rights Committee, Concluding observations on the second periodic report of Israel, UN Doc. CCPR/CO/78/ISR, 21 August 2003, § 12.
Human Rights Committee
In its concluding observations on the combined fourth and fifth periodic reports of Sri Lanka in 2003, the Human Rights Committee stated:
The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the [1966 International Covenant on Civil and Political Rights] (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sect. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sect. 9). There is no legal obligation on the State to inform the detainee of the reasons for the arrest; moreover, the lawfulness of a detention order issued by the Minister of Defense cannot be challenged in court. The PTA also eliminates the power of the judge to order bail or impose a suspended sentence, and places the burden of proof on the accused that a confession was obtained under duress. The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.
The State party is urged to ensure that all legislation and other measures enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the Prevention of Terrorism Act designed to fight terrorism should not be incorporated into the draft Prevention of Organized Crime Bill to the extent that they are incompatible with the Covenant. 
Human Rights Committee, Concluding observations on the combined fourth and fifth periodic reports of Sri Lanka, UN Doc. CCPR/CO/79/LKA, 1 December 2003, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the initial report of Uganda in 2004, the Human Rights Committee stated:
… The State party should take immediate and effective measures to protect the right to … liberty of the civilian population in areas of armed conflict in northern Uganda from violations by members of the security forces. In particular, it should protect internally displaced persons confined in camps, which are constantly exposed to attacks from the Lord’s Resistance Army. 
Human Rights Committee, Concluding observations on the initial report of Uganda, UN Doc. CCPR/CO/80/UGA, 4 May 2004, § 12.
[emphasis in original]
The Human Rights Committee also stated:
The Committee takes note of the explanation provided by the delegation about the outlawing of “safe houses”, places of unacknowledged detention where persons have been subjected to torture by military personnel. Nevertheless it remains concerned that State agents continue arbitrarily to deprive persons of their liberty, including in unacknowledged places of detention, in particular in northern Uganda …
The State party should take urgent and effective measures to prevent arbitrary detention … by State agents. It should thoroughly investigate any alleged case of arbitrary detention …, prosecute those held responsible and ensure that full reparation is granted, including fair and adequate compensation. 
Human Rights Committee, Concluding observations on the initial report of Uganda, UN Doc. CCPR/CO/80/UGA, 4 May 2004, § 17.
[emphasis in original]
Human Rights Committee
In its concluding observations on the fifth periodic report of Colombia in 2004, the Human Rights Committee stated:
The Committee is concerned about the fact that a significant number of arbitrary detentions, abductions, forced disappearances, cases of torture, extrajudicial executions and murders continue to occur in the State party. The Committee is also concerned that such practices as the arrest of election candidates continue, and that murders of legislators dating from earlier years remain unpunished. Human rights defenders, political and trade union leaders, judges and journalists continue to be targets of such actions. … The Committee is also disturbed about the participation of agents of the State party in the commission of such acts, and the apparent impunity enjoyed by their perpetrators.
The State party should take immediate and effective steps to investigate these incidents, punish and dismiss those found responsible and compensate the victims, so as to ensure compliance with the guarantees set forth in articles 2, 3, 6, 7 and 9 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Concluding observations on the fifth periodic report of Colombia, UN Doc. CCPR/CO/80/COL, 26 May 2004, § 11.
[emphasis in original]
Human Rights Committee
In its concluding observations on the fourth periodic report of Yemen in 2005, the Human Rights Committee stated:
The Committee … notes with concern reported cases of … enforced disappearances, arbitrary arrests, [and] indefinite detention without charge or trial …
The State party should ensure that the utmost consideration is given to the principle of proportionality in all its responses to terrorist threats and activities. It should bear in mind the non-derogable character of specific rights under the [1966 International Covenant on Civil and Political Rights], in particular articles 6 and 7, which must be respected in all circumstances. 
Human Rights Committee, Concluding observations on the fourth periodic report of Yemen, UN Doc. CCPR/CO/84/YEM, 9 August 2005, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the combined second and third periodic reports of the United States in 2006, the Human Rights Committee stated:
12. The Committee is concerned by credible and uncontested information that the State party has seen fit to engage in the practice of detaining people secretly and in secret places for months and years on end, without keeping the International Committee of the Red Cross informed. In such cases, the rights of the families of the detainees are also being violated. The Committee is also concerned that, even when such persons may have their detention acknowledged, they have been held incommunicado for months or years, a practice that violates the rights protected by articles 7 and 9 [of the 1966 International Covenant on Civil and Political Rights]. In general, the Committee is concerned by the fact that people are detained in places where they cannot benefit from the protection of domestic or international law or where that protection is substantially curtailed, a practice that cannot be justified by the stated need to remove them from the battlefield. (articles 7 and 9)
The State party should immediately cease its practice of secret detention and close all secret detention facilities. It should also grant the International Committee of the Red Cross prompt access to any person detained in connection with an armed conflict. The State party should also ensure that detainees, regardless of their place of detention, always benefit from the full protection of the law.
18. The Committee is concerned that, following the Supreme Court ruling in Rasul v. Bush (2004), proceedings before Combatant Status Review Tribunals (CSRTs) and Administrative Review Boards (ARBs), mandated respectively to determine and review the status of detainees, may not offer adequate safeguards of due process, in particular due to: (a) their lack of independence from the executive branch and the army, (b) restrictions on the rights of detainees to have access to all proceedings and evidence, (c) the inevitable difficulty CSRTs and ARBs face in summoning witnesses, and (d) the possibility given to CSRTs and ARBs, under Section 1005 of the 2005 Detainee Treatment Act, to weigh evidence obtained by coercion for its probative value. The Committee is further concerned that detention in other locations, such as Afghanistan and Iraq, is reviewed by mechanisms providing even fewer guarantees. (article 9)
The State party should ensure, in accordance with article 9 (4) of the Covenant, that persons detained in Guantánamo Bay are entitled to proceedings before a court to decide, without delay, on the lawfulness of their detention or order their release. Due process, independence of the reviewing courts from the executive branch and the army, access of detainees to counsel of their choice and to all proceedings and evidence, should be guaranteed in this regard. 
Human Rights Committee, Concluding observations on the combined second and third periodic reports of the United States of America, UN Doc. CCPR/C/USA/CO/3/Rev.1, 18 December 2006, §§ 12 and 18.
[emphasis in original]
Human Rights Committee
In its concluding observations on the third periodic report of the Sudan in 2007, the Human Rights Committee stated:
The Committee expresses concern at the permitted legal duration of detention in police custody (garde à vue), which can be prolonged to as much as six months and, in practice, beyond. It also notes with concern that in actual fact the right of the detainee to have access to a lawyer, a doctor and family members, and to be tried within a reasonable time, is often not respected. (arts. 7 and 9 of the [1966 International Covenant on Civil and Political Rights])
The State party should ensure that the permitted legal duration of detention in police custody (garde à vue) is restricted by the Code of Criminal Procedure in accordance with the Covenant, and guarantee that that permitted duration will be respected in practice. The right of detainees to have access to a lawyer, a doctor and family members should be laid down in the Code of Criminal Procedure. 
Human Rights Committee, Concluding observations on the third periodic report of the Sudan, UN Doc. CCPR/C/SDN/CO/3, 29 August 2007, § 21.
[emphasis in original]
Human Rights Committee
In 1980, in García Lanza de Netto v. Uruguay, the Human Rights Committee held that there was a violation of Article 9(1) of the 1966 International Covenant on Civil and Political Rights “because [the applicants] were not released, in the case of Alcides Lanza Perdomo, for five months and, in the case of Beatriz Weismann de Lanza, for 10 months, after their sentences of imprisonment had been fully served”. 
Human Rights Committee, García Lanza de Netto v. Uruguay, Views, 3 April 1980, § 16.
Human Rights Committee
In 1980, in Torres Ramírez v. Uruguay, the Human Rights Committee held that there was a violation of Article 9(1) of the 1966 International Covenant on Civil and Political Rights “because [the victim] was not released for six weeks after his release was ordered by the military judge”. 
Human Rights Committee, Torres Ramírez v. Uruguay, Views, 23 July 1980, § 18.
Human Rights Committee
In Sarma v. Sri Lanka in 2003, the Human Rights Committee noted that the State party had not denied the complainant’s claim that his son had been abducted by an officer of the Sri Lankan Army on 23 June 1990 and had remained unaccounted for since that date. The Human Rights Committee held:
9.3 The Committee notes the definition of enforced disappearance contained in article 7, paragraph 2 (i) of the Rome Statute of the International Criminal Court “‘Enforced disappearance of persons’ means the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time”. Any act of such disappearance constitutes a violation of many of the rights enshrined in the [1966 International Covenant on Civil and Political Rights], including the right to liberty and security of person (article 9) …
9.4 The facts of the present case clearly illustrate the applicability of article 9 of the Covenant concerning liberty and security of the person. The State party has itself acknowledged that the arrest of the author’s son was illegal and a prohibited activity. Not only was there no legal basis for his arrest, there evidently was none for the continuing detention. Such a gross violation of article 9 can never be justified. Clearly, in the present case, in the Committee’s opinion, the facts before it reveal a violation of article 9 in its entirety. 
Human Rights Committee, Sarma v. Sri Lanka, Views, 31 July 2003, §§ 9.3–9.4.
Human Rights Committee
In Baban v. Australia in 2003, the Human Rights Committee recalled “its jurisprudence that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State party can provide appropriate justification”. 
Human Rights Committee, Baban v. Australia, Views, 18 September 2003, § 7.2.
Human Rights Committee
In Busyo et al. v. Democratic Republic of the Congo in 2003, the Human Rights Committee noted:
Judges René Sibu Matubuka and Benoît Malu Malu were arbitrarily arrested and detained from 18 to 22 December 1998 in an illegal detention centre belonging to the [Democratic Republic of the Congo] Task Force for Presidential Security. In the absence of a reply from the State party, the Committee notes that there has been an arbitrary violation of the right to liberty of the person under article 9 of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Busyo et al. v. Democratic Republic of the Congo, Views, 19 September 2003, § 5.3.
Human Rights Committee
In Wilson v. Philippines in 2003, the Human Rights Committee stated:
… The Committee concludes that the author was not informed, at the time of arrest, of the reasons for his arrest and was not promptly informed of the charges against him; that the author was arrested without a warrant and hence in violation of domestic law; and that after the arrest the author was not brought promptly before a judge. Consequently, there was a violation of article 9, paragraphs 1, 2 and 3, of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Wilson v. Philippines, Views, 11 November 2003, § 7.5.
Human Rights Committee
In Mulezi v. Democratic Republic of the Congo in 2004, the Human Rights Committee stated:
With regard to the complaint of a violation of article 9, paragraphs 1, 2 and 4, of the [1966 International Covenant on Civil and Political Rights], the Committee notes the author’s statement that no warrant was issued for his arrest and that he was taken to the Gemena military camp under false pretences. Mr. Mulezi also maintains that he was arbitrarily detained without charge from 27 December 1997 onwards, first at Gemena, for two weeks, and then at the Mbandaka military camp, for 16 months. It is clear from the author’s statements that he was unable to appeal to a court for a prompt determination of the lawfulness of his detention. The Committee considers that these statements, which the State party has not contested and which the author has sufficiently substantiated, warrant the finding that there has been a violation of article 9, paragraphs 1, 2 and 4, of the Covenant. 
Human Rights Committee, Mulezi v. Democratic Republic of the Congo, Views, 23 July 2004, § 5.2.
Human Rights Committee
In Marques de Morais v. Angola in 2005, the Human Rights Committee held:
The first issue before the Committee is whether the author’s arrest on 16 October 1999 and his subsequent detention until 25 November 1999 were arbitrary or otherwise in violation of article 9 of the [1966 International Covenant on Civil and Political Rights]. In accordance with the Committee’s constant jurisprudence, the notion of “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. No such element has been invoked in the instant case. Irrespective of the applicable rules of criminal procedure, the Committee observes that the author was arrested on, albeit undisclosed, charges of defamation which, although qualifying as a crime under Angolan law, does not justify his arrest at gunpoint by 20 armed policemen, nor the length of his detention of 40 days, including 10 days of incommunicado detention. The Committee concludes that in the circumstances, the author’s arrest and detention were neither reasonable nor necessary but, at least in part, of a punitive character and thus arbitrary, in violation of article 9, paragraph 1. 
Human Rights Committee, Marques de Morais v. Angola, Views, 18 April 2005, § 6.1.
Human Rights Committee
In Bousroual v. Algeria in 2006, the Human Rights Committee stated:
As to the alleged violation of article 9, paragraph 1, [of the 1966 International Covenant on Civil and Political Rights] the evidence before the Committee reveals that Mr. Saker was removed from his home by State agents. The State party has not addressed the author’s claims that her husband’s arrest was made in the absence of a warrant. It has failed to indicate the legal basis on which the author’s husband was subsequently transferred to military custody. It has failed to document its assertion that he was subsequently released, even less how he was released with conditions of safety. All these considerations lead the Committee to conclude that the detention as a whole was arbitrary, nor has the State party adduced evidence that the detention of Mr. Saker was not arbitrary or illegal. The Committee concludes that, in the circumstances, there has been a violation of article 9, paragraph 1. 
Human Rights Committee, Bousroual v. Algeria, Views, 24 April 2006, § 9.5.
Human Rights Committee
In Abbassi v. Algeria in 2007, the Human Rights Committee stated:
The Committee recalls that under article 9, paragraph 1, of the [1966 International Covenant on Civil and Political Rights] everyone has the right to liberty and security of person, and no one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law. It further recalls that house arrest may give rise to violations of article 9, which guarantees everyone the right to liberty and the right not to be subjected to arbitrary detention. The State party did not respond to the author’s allegations, except to point out that Abbassi Madani is no longer being held in detention and is not under house arrest. Since the State party did not cite any particular provisions for the enforcement of prison sentences or legal ground for ordering house arrest, the Committee concludes that a deprivation of liberty took place between 1 September 1997 and 1 July 2003. The detention is thus arbitrary in nature and therefore constitutes a violation of article 9, paragraph 1. 
Human Rights Committee, Abbassi v. Algeria, Views, 21 June 2007, § 8.3.
Human Rights Committee
In El Alwani v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
The Committee recalls that incommunicado detention as such may violate article 9 [of the 1966 International Covenant on Civil and Political Rights] and notes the author’s claim that his brother was held in incommunicado detention from July 1995 until June 1996. For these reasons, and in the absence of adequate explanations on this point from the State party, the Committee is of the opinion that the author’s brother was subjected to arbitrary arrest and detention, contrary to article 9 of the Covenant. 
Human Rights Committee, El Alwani v. Libyan Arab Jamahiriya, Views, 29 August 2007, §§ 6.2 and 6.4.
Human Rights Committee
In El Hassy v. Libyan Arab Jamahiriya in 2007, the Human Rights Committee held:
With regard to the alleged violation of article 9 [of the 1966 International Covenant on Civil and Political Rights], the information before the Committee shows that the author’s brother was arrested on several occasions by agents of the State party without a warrant and held incommunicado without ever being informed of the reasons for his arrests or the charges against him. The Committee recalls that the author’s brother was never brought before a judge and never could challenge the legality of his detention. In the absence of any pertinent explanations from the State party, the Committee finds a violation of article 9. 
Human Rights Committee, El Hassy v. Libyan Arab Jamahiriya, Views, 13 November 2007, § 6.5.
Human Rights Committee
In Titiahonjo v. Cameroon in 2007, the Human Rights Committee held:
With regard to the claim under article 9, paragraph 1, [of the 1966 International Covenant on Civil and Political Rights] it transpires from the file that no warrant was ever issued for Mr. Titiahonjo’s arrest or detention. On 25 June 2000, Captain Togolo informed the author that her husband was kept in prison purely because he was a member of the SCNC [Southern Cameroon National Council]. There is no indication that he was charged with a criminal offense at any time. In the absence of any relevant State party information, the Committee considers that Mr. Titiahonjo’s deprivation of liberty was arbitrary and in violation of article 9, paragraph 1. 
Human Rights Committee, Titiahonjo v. Cameroon, Views, 13 November 2007, § 6.5.
African Commission for Human and Peoples’ Rights
In its decision in Krishna Achutan v. Malawi in 1994, the African Commission for Human and Peoples’ Rights held that detention of a political figure “at the pleasure of the Head of State”, for 12 years without charge or trial, was “arbitrary” and violated the right to liberty and security of person. The fact that the victim had no access to the courts also violated Article 6 of the 1981 African Charter on Human and Peoples’ Rights. 
African Commission for Human and Peoples’ Rights, Krishna Achutan v. Malawi, Decision, 25 October–30 November 1994.
African Commission for Human and Peoples’ Rights
In its decision in Pagnoulle v. Cameroon in 1997 concerning the five-year imprisonment of a Cameroonian citizen by a military tribunal, the African Commission for Human and Peoples’ Rights held that his continued detention and house arrest after a five-year sentence had been served was arbitrary and in violation of Article 6 of the 1981 African Charter on Human and Peoples’ Rights. 
African Commission for Human and Peoples’ Rights, Pagnoulle v. Cameroon, Decision, 15–24 April 1997, § 17.
African Commission for Human and Peoples’ Rights
In its decision in International Pen and Others v. Nigeria in 1998, the African Commission for Human and Peoples’ Rights held that the detention of individuals under a decree that permitted the government “to arbitrarily hold people critical of the government for up to three months without having to explain themselves and without the opportunity for the complainant to challenge the arrest and detention before a court of law” was a violation of Article 6 of the 1981 African Charter on Human and Peoples’ Rights. 
African Commission for Human and Peoples’ Rights, International Pen and Others v. Nigeria, Decision, 22–31 October 1998.
African Commission for Human and Peoples’ Rights
In its decision in Constitutional Rights Project v. Nigeria (148/96) in 1999, the African Commission for Human and Peoples’ Rights stated: “(Although it was unnecessary because they were found innocent of any crime), the soldiers were granted state pardons, but still not freed. This constitutes a further violation of Article 6 of the [1981 African Charter on Human and Peoples’ Rights].” 
African Commission for Human and Peoples’ Rights, Constitutional Rights Project v. Nigeria (148/96), Decision, 15 November 1999, § 16.
European Court of Human Rights
In the Lawless case in 1961 involving the detention of a suspected IRA activist for five months in a military detention camp under a statute that permitted the internment of persons engaged in activities prejudicial to the security of a State and public order, the European Court of Human Rights found no breach of Article 5 of the 1950 European Convention on Human Rights because of Ireland’s derogation under Article 15 according to which it found that the detention was strictly required by the exigencies of the situation. 
European Court of Human Rights, Lawless case, Judgment, 1 July 1961, §§ 35–37; see also Ireland v. UK, Judgment, 18 January 1978, §§ 214–220 and Brannigan and McBride v. UK, Judgment, 26 May 1993, §§ 43 and 66.
Inter-American Commission on Human Rights
In a resolution adopted in 1968 concerning the law applicable to emergency situations, the Inter-American Commission on Human Rights declared:
The suspension of constitutional guarantees or state of siege is compatible with the system of representative democratic government only if enacted under the following conditions:
e. When it does not in any manner presuppose the suspension of the right to life, liberty or personal security, the right to protection against arbitrary detention … 
Inter-American Commission on Human Rights, Resolution adopted at the 1968 Session, Doc. OEA/Ser.L/V/II.19 Doc. 32, Inter-American Yearbook on Human Rights , 1968, pp. 59–61.
Inter-American Commission on Human Rights
In its Annual Report 1980–1981, the Inter-American Commission on Human Rights stated that the deprivation of personal liberty for prolonged or indefinite periods of time without due process or formal charges violated human rights. The Commission thus urged the member states of the Organization of American States (OAS) that “the detentions carried out under the state of emergency be for brief periods and always subject to review by the judiciary, in cases of abuses committed by the authorities who have ordered them”. 
Inter-American Commission on Human Rights, Annual Report 1980–1981, Doc. OEA/Ser.L/V/II.54 Doc. 9 rev. 1, 16 October 1981, p. 119.
Inter-American Commission on Human Rights
In its doctrine concerning judicial guarantees and the right to personal liberty and security published in 1982, the Inter-American Commission on Human Rights stated:
No domestic or international legal norm justifies … the holding of detainees in prison for long and unspecified periods, … [especially] without any charges being brought against them for violation of the Law of National Security or another criminal law, and without their being brought to trial so that they might exercise the right to a fair trial and to due process of law. 
Inter-American Commission on Human Rights, Doctrine concerning judicial guarantees and the right to personal liberty and security, reprinted in Ten years of act