Practice Relating to Rule 119. Accommodation for Women Deprived of Their Liberty

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. 

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. 

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. 

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. 

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”. 

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. 

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. 

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. 

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. 

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. 

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. 

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. 

[The 1949 Geneva Convention IV] contains stringent provisions concerning the treatment of persons undergoing sentence of imprisonment. These are as follows:

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. 

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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:

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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:

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. 

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. 

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. 

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. 

Special protection is granted to detained women:

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. 

Those responsible for internment or imprisonment must observe the following, without limitation:

[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. 

The fundamental norms/val[u]es which underlie the LOAC [law of armed conflict] are:

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Female POW shall be detained apart from male POW and shall be under the supervision of women.

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In particular, internees must be provided with sufficient/adequate:

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”. 

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:

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:

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 …

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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. 

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]. 

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]. 

(Inquiry for Recognition of Internment Status)

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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.

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(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. 

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. 

Sec. 21. Procedure for Taking the Child into Custody. – From the moment a child is taken into custody, the law enforcement officer shall:

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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. 

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. 

Anyone who [commits any of the following acts] during armed conflict shall be punished with three to seven years’ imprisonment:

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.

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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.

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PART V

DISCIPLINE OF PRISONERS

48. The requisitions of this Ordinance with respect to the separation of prisoners are as follows:–

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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.

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53. Female prisoners shall in all cases be attended by female officers.

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PART VIII

HEALTH OF PRISONERS

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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. 

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 …

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(7) Whenever it is necessary to cause a female to be searched, the search shall be made by another female. 

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:

[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:

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[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.

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[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.

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[47] The Technical Arrangements further provide that:

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[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”.

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[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.

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[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.” …

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[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”. …

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[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” …

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[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.  [emphasis in original]

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. 

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.

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The accused’s position is stated to be that this Court has no jurisdiction to try him.

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… 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. …

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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.

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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. …

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… 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.

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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.

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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. …

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I incline to the view that non-ratification of a treaty is strong evidence of non-acceptance.

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It is interesting to note that the first Protocol makes extensive provision for the protection of civilians in armed conflict. …

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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.

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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. …

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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].

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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. 

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.

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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:

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.  [footnotes in original omitted]

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. 

8. [The delegate of Malaysia] said that …

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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. 

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. 

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. 

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 …

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46. Paragraph 4 of the Presidential Directions of 7 July 2006 provides that,

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. 

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:

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. 

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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.  [footnotes in original omitted]

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.