Practice Relating to Rule 119. Accommodation for Women Deprived of Their Liberty
Note: For practice concerning the specific needs of women affected by armed conflict, see Rule 134.
Geneva Convention III
Article 25, fourth paragraph, and Article 29, second paragraph, of the 1949 Geneva Convention III provide that in any camps in which men and women prisoners are accommodated together, separate dormitories and conveniences shall be provided for women.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 25, fourth para., and Article 29, second para.
Geneva Convention III
Article 97, fourth paragraph, and Article 108, second paragraph, of the 1949 Geneva Convention III provide that women prisoners of war undergoing disciplinary punishment or convicted of an offence shall be confined in separate quarters from men and shall be under the immediate supervision of women.
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 97, fourth para., and Article 108, second para.
Geneva Convention IV
Article 76, fourth paragraph, of the 1949 Geneva Convention IV provides that women accused of an offence “shall be confined in separate quarters and shall be under the direct supervision of women”.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 76, fourth para.
Geneva Convention IV
Article 82, third paragraph, of the 1949 Geneva Convention IV provides:
Wherever possible, interned members of the same family shall be housed in the same premises and given separate accommodation from other internees, together with facilities for leading a proper family life.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 82, third para.
Geneva Convention IV
Article 85, fourth paragraph, of the 1949 Geneva Convention IV provides:
Whenever it is necessary, as an exceptional and temporary measure, to accommodate women internees who are not members of a family unit in the same place of internment as men, the provision of separate sleeping quarters and sanitary conveniences for the use of such women internees shall be obligatory.
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 85, fourth para.
Geneva Convention IV
Article 124, third paragraph, of the 1949 Geneva Convention IV provides: “Women internees undergoing disciplinary punishment shall be confined in separate quarters from male internees and shall be under the immediate supervision of women.”
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 124, third para.
Additional Protocol I
Article 75(5) of the 1977 Additional Protocol I provides:
Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva, 8 June 1977, Article 75(5). Article 75 was adopted by consensus. CDDH, Official Records, Vol. VI, CDDH/SR.43, 27 May 1977, p. 250.
Additional Protocol II
Article 5(2)(a) of the 1977 Additional Protocol II provides, with regard to persons deprived of their liberty for reasons related to the armed conflict, that whether they are interned or detained, “except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women”.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 5(2)(a). Article 5 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 92.
Standard Minimum Rules for the Treatment of Prisoners
Rule 8(a) of the 1955 Standard Minimum Rules for the Treatment of Prisoners provides:
Men and women shall so far as possible be kept in separate institutions. In institutions which receive both men and women the whole of the premises allocated to women shall be entirely separate.
Standard Minimum Rules for the Treatment of Prisoners, adopted by the 1st UN Congress on the Prevention of Crime and the Treatment of Offenders, Geneva, 30 August 1955, UN Doc. A/CONF/6/1, Annex I, A, adopted on 30 August 1955, approved by the UN Economic and Social Council, Res. 663 C (XXIV), 31 July 1957, extended by Res. 2076 (LXII), 13 May 1977 to persons arrested or imprisoned without charge, Rule 8(a).
European Prison Rules
Rule 11(2) of the 1987 European Prison Rules provides: “Males and females shall in principle be detained separately, although they may participate together in organised activities as part of an established treatment programme.”
Recommendation No. R (87) 3 of the Committee of Ministers to Member States of the Council of Europe on the European Prison Rules, adopted by the Committee of Ministers at the 404th meeting of the Ministers’ Deputies, Strasbourg, 12 February 1987, Rule 11(2).
Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia
Paragraph 4 of the 1991 Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia requires that all civilians be treated in accordance with Article 75(5) of the 1977 Additional Protocol I.
Memorandum of Understanding on the Application of International Humanitarian Law between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva, 27 November 1991, § 4.
Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina
Paragraph 2.3 of the 1992 Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina requires that all civilians be treated in accordance with Article 75(5) of the 1977 Additional Protocol I.
Agreement between Representatives of Mr. Alija Izetbegović (President of the Republic of Bosnia and Herzegovina and President of the Party of Democratic Action), Representatives of Mr. Radovan Karadžić (President of the Serbian Democratic Party), and Representative of Mr. Miljenko Brkić (President of the Croatian Democratic Community), Geneva, 22 May 1992, § 2.3.
UN Secretary-General’s Bulletin
Section 8(e) of the 1999 UN Secretary-General’s Bulletin provides: “Women whose liberty has been restricted shall be held in quarters separated from men’s quarters, and shall be under the immediate supervision of women.”
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 8(e).
Argentina
Argentina’s Law of War Manual (1989) provides: “Women [deprived of their liberty] shall be separated from men, unless they are from the same family.”
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, § 7.07.
Australia
Australia’s Defence Force Manual (1994) provides that the sex of female prisoners “must be taken into account in the allocation of labour and in the provision of sleeping and sanitary facilities”.
Australia, Manual on Law of Armed Conflict, Australian Defence Force Publication, Operations Series, ADFP 37 – Interim Edition, 1994, § 1010.
Australia
Australia’s LOAC Manual (2006) states:
Women arrested, detained or interned for reasons connected with the armed conflict must be kept in separate quarters from men and under the immediate supervision of women. In cases where families are detained or interned, they should, whenever possible, be held in the same place and accommodated “as family units”.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 9.49.
The manual also states:
Female prisoners [of war] must be treated with due regard to their sex and must in no case be treated less favourably than male prisoners. Their sex must also be taken into account in the allocation of labour and in the provision of sleeping and sanitary facilities.
Australia, The Manual of the Law of Armed Conflict, Australian Defence Doctrine Publication 06.4, Australian Defence Headquarters, 11 May 2006, § 10.22.
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) states with regard to prisoners of war: “Women must be treated with due regard to their sex …”.
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. 55; see also Part I bis, p. 105.
Cameroon
Cameroon’s Instructor’s Manual (1992) provides that separate accommodation shall be provided to women prisoners.
Cameroon, Droit international humanitaire et droit de la guerre, Manuel de l’instructeur en vigueur dans les Forces Armées, Présidence de la République, Ministère de la Défense, Etat-major des Armées, Troisième Division, Edition 1992, p. 117, § 431.
Cameroon
Cameroon’s Instructor’s Manual (2006) states with regard to women prisoners of war:
Women must be detained in locations separate from men and guarded by women …
Pregnant women and mothers of young children dependent on them must be released as quickly as possible. Prisoners of war must not receive a more serious sentence or, while they serve a sentence, they must not be treated more severely than women or men who are members of the armed forces of the Detaining Power and who are being punished for a similar offence.
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. 265, §621.
Canada
Canada’s LOAC Manual (1999) provides that in the treatment of female prisoners of war, “their gender must also be taken into account in the allocation of labour and in the provision of sleeping and sanitary facilities”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 10-3, § 21.
Concerning internees, the manual states: “The treatment of internees [is] comparable to [the] provisions of [the 1949 Geneva Convention III] [including Articles 25 and 29] concerned with PWs [prisoners of war]”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-6, § 49.
The manual further refers to the 1977 Additional Protocol I and specifies:
Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 11-8, § 66.
The manual also provides that women undergoing sentences of imprisonment in occupied territories “must be confined in separate quarters and placed under the direct supervision of women”.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 12, § 62(b).
In addition, the manual states:
The authority responsible for the detention or internment of persons during a non-international armed conflict shall, unless family members are detained together, detain men and women separately, with women under the direct supervision of women.
Canada, The Law of Armed Conflict at the Operational and Tactical Level, Office of the Judge Advocate General, 1999, p. 17-3, § 26.
Canada
Canada’s LOAC Manual (2001) provides in its chapter on the treatment of prisoners of war (PWs):
Female PWs must be treated with due regard to their gender and must in no case be treated less favourably than male PWs. Their gender must also be taken into account in the allocation of labour and in the provision of sleeping and sanitary facilities. They must also be specially protected against rape and other sexual assaults.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1017.
In its chapter on the treatment of civilians in the hands of a party to the conflict or an occupying power and, more specifically, in a section entitled “Treatment of internees”, the manual states:
In many respects the articles contained in [the 1949 Geneva Convention IV] as to the treatment of internees are comparable to provisions of [the 1949 Geneva Convention III] concerned with the treatment of PWs.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1129.1.
In the same section the manual further states: “Wherever possible, internees of the same nationality, language and customs must be interned together and family members must be housed in the same place and premises.”
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1129.3.
In the same chapter, in a section entitled “Additional Protocol I”, the manual states:
Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men’s quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned they shall, whenever possible, be held in the same place and accommodated as family units.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1135.5.
In its chapter on rights and duties of occupying powers, the manual also states:
[The 1949 Geneva Convention IV] contains stringent provisions concerning the treatment of persons undergoing sentence of imprisonment. These are as follows:
…
b. Women must be confined in separate quarters and placed under the direct supervision of women.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1233.1.b
In its chapter on non-international armed conflicts, the manual states:
The authority responsible for the detention or internment of persons during a non-international armed conflict shall, unless family members are detained together, detain men and women separately, with women under the direct supervision of women.
Canada, The Law of Armed Conflict at the Operational and Tactical Levels, Office of the Judge Advocate General, 13 August 2001, § 1715.3.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states with regard to prisoner-of-war accommodation: “Provision is to be made for segregation of the sexes and for juveniles to be segregated from adults.”
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3F07.
With regard to matters of hygiene, the manual states that “[w]here female PW [prisoners of war] are interned, separate toilet facilities are to be provided for their exclusive use” and “[s]eparate bathing facilities are to be provided for female PW”.
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, § 3F09.3–4.
Canada
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
…
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] 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 missions. Once a mission or operation has been completed, the coalition is normally disbanded;
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.
…
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, §§ 402.1 and 407.3–4.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book III, Volume 1 (Instruction of first-year trainee officers):
III.1.2. Women
Women have full and complete combatant status in numerous armed forces worldwide, whether at the front or as support personnel or personnel charged with logistical tasks … In case of detention in a prisoner-of-war camp, they must be detained in places separate from those of men.
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, p. 44; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 18.
In Book III, Volume 2 (Instruction of second-year trainee officers), the Teaching Manual provides:
I.1.2. Women
… In case of detention, members of a family must remain together. In other cases, women must be detained in quarters separated from those of men.
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, p. 22; see also Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 32.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.2. Treatment of female POWs
Female POWs [prisoners of war] shall be treated with due regard to their sex and shall in no case be treated less well than male POWs. Their sex will also be taken into account when allocating tasks, searching them and providing sleeping and sanitary facilities.
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 62.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states:
Special protection is granted to detained women:
- Physical searches must be carried out by female officials.
- Female detainees must be separated from male detainees.
- Women must be placed under the immediate supervision of women.
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. 48; see also p. 22.
Italy
Italy’s IHL Manual (1991) provides that prisoners of war shall be separated, if possible, according to sex.
Italy, Manuale di diritto umanitario, Introduzione e Volume I, Usi e convenzioni di Guerra, SMD-G-014, Stato Maggiore della Difesa, I Reparto, Ufficio Addestramento e Regolamenti, Rome, 1991, Vol. II, Chapter III, § 6.
Netherlands
The Military Manual (1993) of the Netherlands provides: “Women must, if possible, be based in separate camps and barracks. In any case, separate dormitories shall be provided for them.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. VII-7.
With respect to non-international armed conflicts in particular, the manual states: “Men and women [whose liberty has been restricted] must be separated.”
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. XI-5.
Netherlands
The Military Manual (2005) of the Netherlands states:
Women should be treated in the same way as men, on the understanding that account should be taken of their physical strength and the special requirements that biological factors represent for their treatment (e.g. menstruation and pregnancy). Moreover, account should be taken of a prisoner of war’s sex when ordering work and allocating dormitory and sanitary facilities. In particular, women should be protected from rape and other sexual violence.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0719.
The manual further states: “Women must, as far as possible, be accommodated in their own camps or barracks. In any case, they must have separate dormitories.”
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0726.
In its chapter on non-international armed conflict, the manual states:
Those responsible for internment or imprisonment must observe the following, without limitation:
…
- to accommodate men and women separately, unless they belong to one family.
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1065; see also § 1226 (peace operations).
New Zealand
New Zealand’s Military Manual (1992) provides that the sex of female detainees “must be taken into account in the allocation of labour and in the provision of sleeping and sanitary facilities”.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 916.
The manual further states:
[The 1977 Additional Protocol II] provides that the authority responsible for detention or internment of persons during a non-international conflict shall, unless family members are detained together, detain men and women separately, with women under the direct supervision of women.
New Zealand, Interim Law of Armed Conflict Manual, DM 112, New Zealand Defence Force, Headquarters, Directorate of Legal Services, Wellington, November 1992, § 1814(3).
Peru
Peru’s IHL Manual (2004) states with regard to the internment of prisoners of war: “If there are women in the [prisoner-of-war] camp, separate sanitary facilities and sleeping quarters must be provided.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 40.e.
The manual further states: “Women must be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault.”
Peru, Manual de Derecho Internacional Humanitario para las Fuerzas Armadas, Resolución Ministerial Nº 1394-2004-DE/CCFFAA/CDIH-FFAA, Lima, 1 December 2004, § 32.e.
Peru
Peru’s IHL and Human Rights Manual (2010) states: “If there are women in the [prisoner-of-war] camp, separate sanitary facilities and sleeping quarters must be provided.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 41(e), p. 256.
The manual further states: “Women must be especially protected against any attack on their honour, in particular against rape, enforced prostitution or any other form of indecent assault.”
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 33(e), p. 251.
Poland
Poland’s Prisoner of War Handling Procedures (2009) states: “The capturing power shall: … if circumstances permit, group prisoners of war according to … gender”.
Poland, Norma Obronna NO-02-A020:2000, Procedury postępowania z jeńcami wojennymi, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.1.
Senegal
Senegal’s IHL Manual (1999) provides that one of the fundamental guarantees common to IHL conventions and the Universal Declaration of Human Rights is that, in the treatment of persons deprived of their liberty, “except when men and women of the same family are accommodated together, women shall be held in separate quarters and under the immediate supervision of women”.
Senegal, Le DIH adapté au contexte des opérations de maintien de l’ordre, République du Sénégal, Ministère des Forces Armées, Haut Commandement de la Gendarmerie et Direction de la Justice Militaire, Cabinet, 1999, pp. 3 and 24.
South Africa
South Africa’s LOAC Teaching Manual (2008) states:
Fundamental Norms and Values (rules)
The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:
…
- All persons who are captured or under the authority of an adverse party are entitled to, as a minimum, the protection and guarantees bestowed upon prisoners of war (POW).
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 1, pp. 16–17.
The manual also states:
2.3 Specifically Protected Persons and Objects …
…
c. Prisoners of War [POW]
…
Treatment of POW
…
Female POW shall be detained apart from male POW and shall be under the supervision of women.
…
2.4 Specifically Protected Persons and Objects:
…
Internment of Civilians
…
Accommodation
…
In particular, internees must be provided with sufficient/adequate:
…
- separate sleeping quarters for single women (if possible)[.]
South Africa, Advanced Law of Armed Conflict Teaching Manual, School of Military Justice, 1 April 2008, as amended to 25 October 2013, Learning Unit 2, pp. 72, 91, 95, 96, 112, 127 and 128–129.
Spain
Spain’s LOAC Manual (1996) provides that detained women shall be housed separately.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, §§ 6.4.(b).1 and 6.4.(f).1.
According to the manual, the same rule applies to interned women.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Publicación OR7-004, 2 Tomos, aprobado por el Estado Mayor del Ejército, Division de Operaciones, 18 March 1996, Vol. I, § 6.8.(f).2.
Spain
Spain’s LOAC Manual (2007) provides that, in prisoner-of-war camps, detained women shall be housed separately.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 6.4.b.(1) and § 6.4.f.(1).
According to the manual, the same rule applies to women held in internment camps.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 6.8.f.(2).
The manual also provides that, as prisoners of war, “women must be treated with all regard due to their sex”.
Spain, Orientaciones. El Derecho de los Conflictos Armados, Tomo 1, Publicación OR7–004, (Edición Segunda), Mando de Adiestramiento y Doctrina, Dirección de Doctrina, Orgánica y Materiales, 2 November 2007, § 8.4.a.(1).
Sweden
Sweden’s IHL Manual (1991) considers that “the fundamental guarantees for persons in the power of one party to the conflict”, as contained in Article 75 of the 1977 Additional Protocol I, is part of customary international law.
Sweden, International Humanitarian Law in Armed Conflict, with reference to the Swedish Total Defence System, Swedish Ministry of Defence, January 1991, Section 2.2.3, p. 19.
Switzerland
Switzerland’s Basic Military Manual (1987) provides: “Women shall be provided separate dormitories.”
Switzerland, Lois et coutumes de la guerre (Extrait et commentaire), Règlement 51.7/II f, Armée Suisse, 1987, Article 119.
United Kingdom of Great Britain and Northern Ireland
The UK Military Manual (1958) provides: “When men and women prisoners of war are accommodated in the same camp, separate sleeping quarters must be provided.”
United Kingdom, The Law of War on Land being Part III of the Manual of Military Law, The War Office, HMSO, 1958, § 148.
United Kingdom of Great Britain and Northern Ireland
The UK LOAC Manual (2004) states in its chapter on the protection of civilians in the hands of a party to the conflict:
Women arrested, detained or interned for reasons connected with the armed conflict must be kept in separate quarters from men and under the immediate supervision of women. In cases where families are detained or interned, they should, whenever possible, be held in the same place and accommodated “as family units”.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.8.1.
On prisoners of war, the manual states: “Accommodation for prisoners of war is required to be at least as good as that for the forces of the detaining power billeted in the same area. Women must have separate sleeping quarters from men.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.49.
In its discussion on judicial proceedings against prisoners of war, the manual further states: “Women sentenced to confinement are to be confined in separate quarters from men and must be under the supervision of women.”
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.144.
In its chapter on occupied territory, the manual states:
Protected persons who are detained either because they are awaiting trial or as a result of a custodial sentence are entitled to have the following treatment:
…
f. women must be kept in separate quarters from men and under the direct supervision of women.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 11.74 11 .
With regard to internal armed conflicts in which the 1977 Additional Protocol II is applicable, the manual provides:
Those responsible for the internment or detention are also placed under obligation “within the limits of their capabilities” to “respect” some further provisions relating to persons interned or detained for reasons relating to the armed conflict. These are:
a. that except when men and women of a family are accommodated together, women shall be held in quarters separated from those of men and shall be under the immediate supervision of women.
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 15.41.
United States of America
The US Field Manual (1956) reproduces Article 25 of the 1949 Geneva Convention III and Articles 76 and 124 of the 1949 Geneva Convention IV.
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, §§ 101, 331 and 446.
United States of America
The US Soldier’s Manual (1984) provides: “It is particularly important to treat every captured or detained female with appropriate respect.”
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 14.
United States of America
The US Manual on Detainee Operations (2008) states: “To the extent possible, accommodation must be made for female … detainees. Unless militarily unfeasible, female detainees must be searched by female service members and must be segregated from male detainees.”
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. IV-4.
The manual also states:
Detainee Categories
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
…
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
…
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee … A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power.
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-3–I-5; see also pp. viii and GL-3.
Afghanistan
Afghanistan’s Law on Juvenile Rehabilitation and Training Centres (2009) states regarding the detention of juveniles: “Keeping female children separate from male children. Female children, [whether] suspected, accused or convicted to imprisonment, … [shall be held] separately”.
Afghanistan, Law on Juvenile Rehabilitation and Training Centres, 2009, Article 10.
Bangladesh
Bangladesh’s International Crimes (Tribunal) Act (1973) states that the “violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949” is a crime.
Bangladesh, International Crimes (Tribunal) Act, 1973, Section 3(2)(e).
Bosnia and Herzegovina
Bosnia and Herzegovina’s Criminal Procedure Code (2003) states:
Persons in custody shall be accommodated in rooms of appropriate size that satisfy required health conditions. Individuals of different sexes may not be accommodated in the same room.
Bosnia and Herzegovina, Criminal Procedure Code, 2003, Article 142.
Democratic Republic of the Congo
The Democratic Republic of the Congo’s Military Judiciary Code (2002) provides: “The distribution of the convicted persons in the military prisons is made according to their penal category, their age, state of health, sex and personality.”
Democratic Republic of the Congo, Military Judiciary Code, 2002, Article 365.
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).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “minor breach” of the 1949 Geneva Conventions, including violations of Articles 25, 29, 97 and 108 of the Geneva Convention III and Articles 76, 82, 85 and 124 of the Geneva Convention IV, and of the 1977 Additional Protocol I, including violations of Article 75(5), as well as any “contravention” of the 1977 Additional Protocol II, including violations of Article 5(2)(a), are punishable offences.
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Japan
Japan’s Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states:
(Inquiry for Recognition of Internment Status)
…
Article 11(3) The recognition officer of internment status [a position that includes designated commanding officers] may inspect the personal effects or body of captive persons when it is necessary for recognition of internment status; provided, however, that the inspection of a female captive person’s body shall be conducted by female staff members of the Self-Defense Forces, except for emergency cases.
…
(Body Search)
Article 45 The Self-Defense Forces personnel designated by the prisoner-of-war camp commander may, if necessary to maintain discipline and order in the prisoner-of-war camp, search a detainee’s body, clothes, personal belongings, and living quarters, and deprive the detainee of any personal belongings, and temporarily take custody thereof; provided, however, that the search of the body and clothes of a female detainee shall be conducted by the female Self-Defense Forces personnel designated by the prisoner-of-war camp commander.
Japan, Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Articles 11(3) and 45.
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 … [and in] the two additional protocols to these Conventions … is liable to imprisonment.
Norway, Military Penal Code, 1902, as amended in 1981, § 108.
Pakistan
Pakistan’s Prisons Act (1894) stipulates that separate cells shall be provided for female prisoners.
Pakistan, Prisons Act, 1894, Article 27.
Philippines
The Philippines’ Republic Act No. 9344 (2006), the Juvenile Justice and Welfare Act of 2006, provides:
Sec. 21. Procedure for Taking the Child into Custody. – From the moment a child is taken into custody, the law enforcement officer shall:
…
(k) Ensure that should detention of the child in conflict with the law be necessary, the child shall be secured in quarters separate from that of the opposite sex and adult offenders;
…
Sec. 47. Female Children. – Female children in conflict with the law placed in an institution shall be given special attention as to their personal needs and problems. They shall be handled by female doctors, correction officers and social workers, and shall be accommodated separately from male children in conflict with the law.
Philippines, Republic Act No. 9344, 2006, Sections 21(k) and 47.
Rwanda
Rwanda’s Prison Order (1961) states that women are to be housed separately from men.
Rwanda, Prison Order, 1961, Articles 28–29.
Somalia
Somalia’s Military Criminal Code (1963) states:
A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years.
Somalia, Military Criminal Code, 1963, Article 382.
South Africa
South Africa’s Implementation of the Geneva Conventions Act (2012) states: “A protected prisoner of war who is in the custody of the South African National Defence Force must be granted the protection of the [1949] Third [Geneva] Convention or the [1949] Fourth [Geneva] Convention, as the case may be.”
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 12(2).
The Act defines a “protected prisoner of war” as a “person protected by the Third Convention or a person who is protected as a prisoner of war under [the 1977 Additional] Protocol I”.
South Africa, Implementation of the Geneva Conventions Act, 2012, Section 1.
Spain
Spain’s Penal Code (1995), as amended in 2003, states:
Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:
…
3. … [V]iolating the prohibitions regarding the accommodation of women and families.
Spain, Penal Code, 1995, as amended on 25 November 2003, Article 612(3).
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
PART I
ESTABLISHMENT AND OFFICERS OF PRISONS…
7. …
(3) In every prison in which female prisoners are detained there shall be at least one female officer.
…
PART II
DUTIES OF OFFICERS
MATRON
32. The matron shall reside in the prison or in such convenient place near thereto as the Superintendent shall by writing appoint; and she shall not without the Superintendent’s sanction absent herself from the prison or from her other dwelling place, nor shall she without such sanction be concerned in any other employment. It shall be her duty constantly to superintend the female prisoners.
SUBORDINATE OFFICERS
33. The officer acting as gate-keeper, or any other prison officer, may examine anything carried into or out of the prison and may stop and search any person suspected of bringing spirits or other prohibited articles into the prison, and if any such articles or property be found shall give immediate notice thereof to the jailer:
Provided that the persons of females shall be searched by some female prison officer.
…
PART V
DISCIPLINE OF PRISONERS
48. The requisitions of this Ordinance with respect to the separation of prisoners are as follows:–
(a) males shall be separated from females …
…
50. Every prisoner under warrant or order for execution shall, immediately on his arrival in the prison after sentence, be searched by or by order of the jailer, and all articles shall be taken from him which the jailer deems it dangerous or inexpedient to leave in his possession:
Provided that the prisoner, if a female, shall be searched by some female prison officer.
…
53. Female prisoners shall in all cases be attended by female officers.
…
PART VIII
HEALTH OF PRISONERS
…
70. All prisoners shall be furnished with proper means of washing or otherwise cleansing themselves and of having their clothing washed; and provision shall be made for their bathing within the prison, if possible, or otherwise at the nearest convenient place; and during such bathing or washing care shall be taken that different classes and sexes of prisoners be kept separate.
Sri Lanka, Prisons Ordinance, 1878, as amended to 2005, Articles 7(3), 32, 33, 48(a), 50, 53 and 70.
These articles apply to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
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 …
…
(7) Whenever it is necessary to cause a female to be searched, the search shall be made by another female.
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Sections 20(1) and (7).
Switzerland
Switzerland’s Penal Code (1937), taking into account amendments entered into force up to 2011, which also contains a section on war crimes, states under the title “Execution of sentences and measures, probation assistance, facilities”:
Art. 377
1 The cantons shall establish and operate institutions and institution units for prison inmates in open and secure custody as well as for prison inmates in semi-detention and in day release employment.
2 They may also provide units for special inmate groups, and in particular for:
a. women.
Switzerland, Penal Code, 1937, taking into account amendments entered into force up to 2011, Article 377(1) and (2)(a).
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 (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
[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. …
…
[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”.
…
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?
…
[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.
…
[166] … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
…
[179] The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
[180] In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
[181] Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
…
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, 59, 162, 166, 179–181, 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.
South Africa
In 1987, in the Petane case, the Cape Provincial Division of South Africa’s Supreme Court dismissed the accused’s claim that the 1977 Additional Protocol I reflected customary international law. The Court stated:
The accused has been indicted before this Court on three counts of terrorism, that is to say, contraventions of s 54(1) of the Internal Security Act 74 of 1982. He has also been indicted on three counts of attempted murder.
…
The accused’s position is stated to be that this Court has no jurisdiction to try him.
…
… The point in its early formulation was this. By the terms of [the 1977 Additional] Protocol I to the [1949] Geneva Conventions the accused was entitled to be treated as a prisoner-of-war. A prisoner-of-war is entitled to have notice of an impending prosecution for an alleged offence given to the so-called “protecting power” appointed to watch over prisoners-of-war. Since, if such a notice were necessary, the trial could not proceed without it, Mr Donen suggested that the necessity or otherwise for giving such a notice should be determined before evidence was led. …
…
On 12 August 1949 there were concluded at Geneva in Switzerland four treaties known as the Geneva Conventions. …
South Africa was among the nations which concluded the treaties. … Except for the common art 3, which binds parties to observe a limited number of fundamental humanitarian principles in armed conflicts not of an international character, they apply to wars between States.
After the Second World War many conflicts arose which could not be characterised as international. It was therefore considered desirable by some States to extend and augment the provisions of the Geneva Conventions, so as to afford protection to victims of and combatants in conflicts which fell outside the ambit of these Conventions. The result of these endeavours was Protocol I and Protocol II to the Geneva Conventions, both of which came into force on 7 December 1978.
Protocol II relates to the protection of victims of non-international armed conflicts. Since the State of affairs which exists in South Africa has by Protocol I been characterised as an international armed conflict, Protocol II does not concern me at all.
…
The extension of the scope of art 2 of the Geneva Conventions was, at the time of its adoption, controversial. …
The article has remained controversial. More debate has raged about its field of operation than about any other articles in Protocol I. …
South Africa is one of the countries which has not acceded to Protocol I. Nevertheless, I am asked to decide, as I indicated earlier, as a preliminary point, whether Protocol I has become part of customary international law. If so, it is argued that it would have been incorporated into South African law. If it has been so incorporated it would have to be proved by one or other of the parties that the turmoil which existed at the time when the accused is alleged to have committed his offences was such that it could properly be described as an “armed conflict” conducted by “peoples” against a “ra[c]ist regime” in the exercise of their “right of self-determination”. Once all this has been shown it would have to be demonstrated to the Court that the accused conducted himself in such a manner as to become entitled to the benefits conferred by Protocol I on combatants, for example that, broadly speaking, he had, while he was launching an attack, distinguished himself from civilians and had not attacked civilian targets. …
…
… I am prepared to accept that where a rule of customary international law is recognised as such by international law it will be so recognised by our law.
…
To my way of thinking, the trouble with the first Protocol giving rise to State practice is that its terms have not been capable of being observed by all that many States. At the end of 1977 when the treaty first lay open for ratification there were few States which were involved in colonial domination or the occupation of other States and there were only two, South Africa and Israel, which were considered to fall within the third category of ra[c]ist regimes. Accordingly, the situation sought to be regulated by the first Protocol was one faced by few countries; too few countries in my view, to permit any general usage in dealing with armed conflicts of the kind envisaged by the Protocol to develop.
…
Mr Donen contended that the provisions of multilateral treaties can become customary international law under certain circumstances. I accept that this is so. There seems in principle to be no reason why treaty rules cannot acquire wider application than among the parties to the treaty.
Brownlie Principles of International Law 3rd ed at 13 agrees that non-parties to a treaty may by their conduct accept the provisions of a multilateral convention as representing general international law. …
…
I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.
…
It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …
…
In this sense, Protocol I may be described as an enlightened humanitarian document. If the strife in South Africa should deteriorate into an armed conflict we may all one day find it a cause for regret that the ideologically provocative tone of s 1(4) has made it impossible for the Government to accept its terms.
…
To my mind it can hardly be said that Protocol I has been greeted with acclaim by the States of the world. Their lack of enthusiasm must be due to the bizarre mixture of political and humanitarian objects sought to be realised by the Protocol. …
…
According to the International Review of the Red Cross (January/February 1987) No 256, as at December 1986, 66 States were parties to Protocol I and 60 to Protocol II, which, it will be remembered, deals with internal non-international armed conflicts. With the exception of France, which acceded only to Protocol II, not one of the world’s major powers has acceded to or ratified either of the Protocols. This position should be compared to the 165 States which are parties to the Geneva Conventions.
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr
Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status o[f] customary international [law].
…
I have not been persuaded by the arguments which I have heard on behalf of the accused that the assessment of Professor Dugard, writing in the Annual Survey of South African Law (1983) at 66, that “it is argued with growing conviction that under contemporary international law members of SWAPO [South-West Africa People’s Organisation] and the ANC [African National Congress] are members of liberation movements entitled to prisoner-of-war status, in terms of a new customary rule spawned by the 1977 Protocols”, is correct. On what I have heard in argument I disagree with his assessment that there is growing support for the view that the Protocols reflect a new rule of customary international law. No writer has been cited who supports this proposition. Here and there someone says that it may one day come about. I am not sure that the provisions relating to the field of application of Protocol I are capable of ever becoming a rule of customary international law, but I need not decide that point today.
For the reasons which I have given I have concluded that the provisions of Protocol I have not been accepted in customary international law. They accordingly form no part of South African law.
This conclusion has made it unnecessary for me to give a decision on the question of whether rules of customary international law which conflict with the statutory or common law of this country will be enforced by its courts.
In the result, the preliminary point is dismissed. The trial must proceed.
South Africa, Supreme Court, Petane case, Judgment, 3 November 1987, pp. 2–8.
South Africa
In 2010, in the Boeremag case, South Africa’s North Gauteng High Court stated:
In Petane, … Conradie J found that the provisions of [the 1977 Additional] Protocol I are not part of customary international law, and therefore are also not part of South African law.
…
Referring to the fact that in December 1986 only 66 of the 165 States party to the Geneva Conventions had ratified Protocol I, the Court [in Petane] stated:
This approach of the world community to Protocol I is, on principle, far too half-hearted to justify an inference that its principles have been so widely accepted as to qualify them as rules of customary international law. The reasons for this are, I imagine, not far to seek. For those States which are contending with “peoples[’]” struggles for self-determination, adoption of the Protocol may prove awkward. For liberation movements who rely on strategies of urban terror for achieving their aims the terms of the Protocol, with its emphasis on the protection of civilians, may prove disastrously restrictive. I therefore do not find it altogether surprising that Mr Donen was unable to refer me to any statement in the published literature that Protocol I has attained the status of customary international law.
Important changes with respect to certain aspects applicable at the time of Petane have taken place. The ANC [African National Congress] has become South Africa’s ruling party and in 1995 ratified Protocol I. The total number of States that have ratified it, is now … 162.
This last aspect forms the basis on which the First Respondent [the State] and the applicants agree that Protocol I forms part of customary international law as well as of South African law. As requested, this position is accepted for the purposes of the decision, without deciding on the matter.
Despite these changes, it remains debatable whether the provisions of Protocol I have become a part of South African law in this way.
The consensus of both parties to the conflict is required. See Petane … and Article 96 of Protocol I. …
Parliament’s failure to incorporate Protocol I into legislation in accordance with Article 231(4) of the Constitution in fact points to the contrary, and is indicative that the requirements of usus and/or opinio juris have not been met. See Petane.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, pp. 21–22.
[footnotes in original omitted]The Court also held:
If the [1977 Additional Protocol I] applies in South Africa as customary international law, the two requirements that form the basis of customary law must be met. It is arguable that the requirement of usus has been met by the vast number of States that have acceded or ratified it. By ratifying Protocol I the Republic of South Africa has indicated its intention to apply the Protocol, thereby fulfilling the requirement of opinio juris.
South Africa, North Gauteng High Court, Boeremag case, Judgment, 26 August 2010, p. 66.
Bosnia and Herzegovina
In 2005, in its initial report to the Human Rights Committee, Bosnia and Herzegovina stated that “detained persons [are] to be separated from accused ones, also females from males”.
Bosnia and Herzegovina, Initial report to the Human Rights Committee, 24 November 2005, UN Doc. CCPR/C/BIH/1, § 103.
India
Indian regulations provide that detained women may not be housed with men, and that, where possible, women should be looked after by female police officers.
India, Ministry of Home Affairs, Circular on the treatment of women demonstrators by the police, Doc. No. VI-25013/4/81-GPA.II, 4 April 1981, Report on the Practice of India, 1997, Chapter 5.3.
India
An Indian police order dating from 1984 states that detained women shall be looked after by female police officers.
India, Commissioner of Police, Standing Order No. 93, Arrest of Women, Doc. No. 9609-9909/C&T-AC-II, 5 May 1984, Article 9, Report on the Practice of India, 1997, Chapter 5.3.
Jordan
The Report on the Practice of Jordan asserts: “Article 75 [of the 1977 Additional Protocol] I embodies customary law.”
Report on the Practice of Jordan, 1997, Chapter 5.6.
Malaysia
Based on a memo on accommodation in detention camps dating from 1950, the Report on the Practice of Malaysia states that during the communist insurgency, women and children were detained in separate facilities. Women were guarded exclusively by female guards.
Report on the Practice of Malaysia, 1997, Chapter 5.3, referring to Memo on Accommodation in Detention Camps, December 1950, Archives ref: (56) in DCHQ/187/50.
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.
Serbia
In 2006, in its initial report to the Committee against Torture, Serbia stated:
140. Male and female detainees are separated and intermingling is not allowed. …
141. Under the Law on the Execution of Criminal Sanctions, women are sent to penal-correctional institutions for women. These institutions are separated from those for men and are organized in accordance with the needs of the women serving their sentences in them. The guards, medical staff and all other employees of those institutions in direct contact with inmates are women.
Serbia, Initial report to the Committee against Torture, 8 February 2007, UN Doc. CAT/C/SRB/1, submitted 3 May 2006, as amended by CAT/C/SRB/2/Corr.1, 23 September 2008, §§ 140 and 141.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include … Article 5 prescribing humane treatment of persons whose liberty ha[s] been restricted … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions.
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated:
29. … [Directions Issued by the President Commander-in-Chief of the Armed Forces and Minister of Defence on 7 July 2006] ensure that … [p]recautionary measures are also taken … to protect women … in custody …
…
46. Paragraph 4 of the Presidential Directions of 7 July 2006 provides that,
When a … woman is sought to be arrested or detained, a person of their choice should be allowed to accompany such … woman to the place of questioning. As far as possible, any such … 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.
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, §§ 29 and 46.
[footnote in original omitted]Sri Lanka also stated:
Legal and institutional initiatives undertaken to facilitate rehabilitation and reintegration of former child soldiers
81. Where such child is a female she has to be kept in a place which is separated from child or adult male surrendees or detainees if any and in the charge care and custody of a female officer.
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, § 81.
Sri Lanka further stated:
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:
…
(f) As far as possible such women [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 wom[a]n military or police officer, as per the above [Directions].
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, § 33(f).
[footnote in original omitted]Switzerland
Switzerland’s ABC of International Humanitarian Law (2009) states:
Women
International humanitarian law calls for the special protection of women. … Other special provisions protect women who are members of the armed forces, for example in the case of women who are Prisoners of war, who are to be housed separately from men and are to be placed under the direct supervision of other women.
Switzerland, Federal Department of Foreign Affairs, ABC of International Humanitarian Law, 2009, p. 42.
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.
Switzerland, Federal Council, Report on IHL and Current Armed Conflicts, 17 September 2010, Section 3.4, p. 15.
[footnotes in original omitted]United Kingdom of Great Britain and Northern Ireland
In 2004, in a written answer to a question concerning “the document issued to service personnel announcing the ban on the use of hoods for Iraqi prisoners”, the UK Secretary of State for Defence stated:
An amended Standard Operating Instruction on the Policy for Apprehending, Handling and Processing Detainees and Internees was issued on 30 September 2003. The following section of the document contains the relevant information.
a. Apprehended individuals are to be treated at all times fairly, humanely and with respect for his or her personal dignity;
…
h. Females are to be segregated from males;
…
j. It is a command responsibility to ensure that all apprehended individuals are treated in accordance with these principles.
United Kingdom, House of Commons, Written answer by the Secretary of State for Defence, Hansard, 7 July 2004, Vol. 423, Written Answers, col. 721W.
United States of America
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. The report also notes: “It is the opinio juris of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”
Report on US Practice, 1997, Chapter 5.3.
UN Economic and Social Council
In a resolution adopted in 1980 on measures to prevent the exploitation of prostitution, ECOSOC appealed to governments to pay particular attention to the conditions of detention of women, especially in relation to their physical security.
ECOSOC, Res. 1980/4, 16 April 1980, §§ 3–4.
UN Economic and Social Council
In a resolution adopted in 1984 on physical violence against detained women that is specific to their sex, ECOSOC called on member States to take measures to eradicate physical violence against detained women and to submit their views on the matter to the UN Secretary-General.
ECOSOC, Res. 1984/19, 24 May 1984, §§ 1–3.
It repeated this request in resolutions adopted in 1986 and 1990. ECOSOC, Res. 1986/29, 23 May 1986, §§ 2–5; Res. 1990/5, 24 May 1990, §§ 1–4.
No data.
No data.
No data.
ICRC
To fulfil its task of disseminating IHL, the ICRC has delegates around the world teaching armed and security forces that: “Women’s quarters shall be separated from men’s quarters. They shall be under the immediate supervision of women.”
Frédéric de Mulinen, Handbook on the Law of War for Armed Forces, ICRC, Geneva, 1987, § 689; see also § 839 (application mutatis mutandis of the regulations for the treatment of prisoners of war to civilian internees).
No data.
