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Detention by Non-State Armed Groups under International Law By Ezequiel Heffes *

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Detention by Non-State Armed Groups under International Law By Ezequiel Heffes *

Published online by Cambridge University Press:  14 November 2023

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Abstract

In this iteration of the Review's “Beyond the Literature” series, we have invited Ezequiel Heffes to introduce his recent book Detention by Non-State Armed Groups under International Law, before then posing a series of questions to Tilman Rodenhäuser, René Provost, Mariana Chacón Lozano and Katharine Fortin, who have agreed to serve as discussants of the book. Tilman Rodenhäuser is a Legal Adviser at the International Committee of the Red Cross (ICRC), with particular expertise in non-State armed groups (NSAGs) and detention. René Provost is the James McGill Professor of Law at McGill University and has written extensively on public international law, including his recent monograph Rebel Courts: The Administration of Justice by Armed Insurgents.1 Mariana Chacón Lozano has served as the Operational Legal Coordinator for the ICRC in Colombia since October 2020 and has worked for the ICRC since 2011. Katharine Fortin is Associate Professor at the Netherlands Institute of Human Rights within the Faculty of Law, Economics and Governance of Utrecht University. The Review team is grateful to all four discussants, and to Ezequiel, for taking part in this engaging conversation.

Keywords

non-State armed groupsinternational humanitarian lawdetentionBeyond the Literaturenon-international armed conflict
Type
Beyond the Literature
Information
International Review of the Red Cross , Volume 105 , Issue 924: Protecting the Environment in Armed Conflict , December 2023 , pp. 1673 - 1689
Copyright
Copyright © The Author(s), 2023. Published by Cambridge University Press on behalf of the ICRC

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Footnotes

*

Published by Cambridge University Press, Cambridge, 2022. Discussion conducted by Bruno Demeyere, Editor-in-Chief of the Review.

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

1

René Provost, Rebel Courts: The Administration of Justice by Armed Insurgents, Oxford University Press, New York, 2021.

References

2 See, for example, thematic issue on “Non-State Armed Groups”, International Review of the Red Cross, Vol. 102, No. 915, 2022, available at: https://international-review.icrc.org/reviews/irrc-no-915-non-state-armed-groups (all internet references were accessed in September 2023).

3 UK High Court of Justice, Serdar Mohammed v. Ministry of Defence, Case No. HQ12X03367, 2 May 2014.

4 ICRC, Internment in Armed Conflict: Basic Rules and Challenges, opinion paper, Geneva, November 2014, available at: www.icrc.org/en/document/internment-armed-conflict-basic-rules-and-challenges.

5 For a recent ICRC study on this subject that combines a restatement of the IHL rules applicable to detention by NSAGs and a selection of practical measures for how they can be implemented, see ICRC, Detention by Non-State Armed Groups: Obligations under International Humanitarian Law and Examples of How to Implement Them, Geneva, 2023, available at: www.icrc.org/en/document/detention-non-state-armed-groups.

6 Protocol Additional (II) to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, 1125 UNTS 609, 8 June 1977 (entered into force 7 December 1978) (AP II), Art. 6(2)–(4); Jean-Marie Henckaerts and Louise Doswald-Beck (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study), Rule 101, available at: https://ihl-databases.icrc.org/en/customary-ihl.

7 See also ICRC, Commentary on the Third Geneva Convention: Convention (III) relative to the Treatment of Prisoners of War, 2nd ed., Geneva, 2020Google Scholar (ICRC Commentary on GC III), para. 728. Note that the English version of Article 6(2)(c) of AP II speaks of “law”, unlike the French version, which speaks of “domestic and international” law. As the ICRC Commentary of 1987 explains: “The possible co-existence of two sorts of national legislation, namely, that of the state and that of the insurgents, makes the concept of national law rather complicated in this context”: see Yves Sandoz, Christophe Swinarski and Bruno Zimmerman (eds), Commentary on the Additional Protocols, ICRC, Geneva, 1987 (ICRC Commentary on the APs), para. 4605. This view was supported by States during the negotiations and subsequently. See Bothe, Michael, Partsch, Karl Josef and Solf, Waldemar A., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Additional Protocols to the Geneva Conventions of 1949, Martinus Nijhoff, The Hague, 1982, pp. 746–747CrossRefGoogle Scholar, para. 2.7; Sivakumaran, Sandesh, The Law of Non-International Armed Conflict, Oxford University Press, Oxford, 2012, p. 561Google Scholar. See also ICRC Commentary on GC III, above, para. 728.

8 See ICRC, above note 5, p. 59.

9 ICRC Commentary on GC III, above note 7, para. 765.

10 ICRC, above note 5, pp. 55–56.

11 Detention by Non-State Armed Groups under International Law, p. 64.

12 ICRC, Colombia: Retos Humanitarios 2023, March 2023, available at: www.icrc.org/es/document/colombia-retos-humanitarios-2023. The ICRC has classified seven NIACs in Colombia: three between the State and NSAGs, and four between NSAGs.

13 Luz Ángela Domínguez Coral, “¿Cuál es el origen de las Autodefensas Gaitanistas de Colombia?”, El Tiempo, 28 June 2023, available at: www.eltiempo.com/justicia/conflicto-y-narcotrafico/cual-es-el-origen-de-las-autodefensas-gaitanistas-de-colombia-781574.

14 Detention by Non-State Armed Groups under International Law, p. 64.

15 For a set of rules contained in a “pocket card” on “The Treatment of Detainees” that was recently produced by the ICRC, see: https://shop.icrc.org/treatment-of-detainees-print-en.html.

16 See, in particular, Pejic, Jelena, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, 2005CrossRefGoogle Scholar.

17 See AP II, Art. 5(2)(b); ICRC Customary Law Study, above note 6, Rule 123.

18 ICRC, above note 5.

19 See above note 12.

20 ICRC, “Liberaciones: Un reflejo de la intermediación neutral”, available at: www.icrc.org/es/document/colombia-liberaciones-un-reflejo-de-la-intermediacion-neutral-2023.

21 “On August 7, 2022 newly inaugurated President Gustavo Petro announced that he would be implementing a total peace effort to end violence in Colombia. The Total Peace policy is a multifaceted effort that seeks to minimize violence, protect civilians and dismantle the many armed groups operating in Colombia”. See WOLA, “What Exactly is Colombia's Total Peace Effort and How Is It Advancing?”, available at: www.wola.org/events/what-exactly-colombias-total-peace-effort-how-advancing/. Petro's administration seeks to do this simultaneously with all armed groups.

22 Detention by Non-State Armed Groups under International Law, pp. 228, 244.

23 ICRC, above note 5.