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The Warden’s Dilemma: Handling captured belligerents in non-international armed conflicts

Written by Frederik Harhoff, Professor LL.D. of Ínternational Law

 Consider this: During a covert night reconnaissance mission in Syria, a Danish Special Force unit is out to locate and observe activities in and around a building suspected of being an ISIL command post. On their way to the target, they are countered by an ISIL platoon which they quickly neutralize by killing them all – except one who surrenders spontaneously and is detained. One Special Force stays behind with the detainee while the others move ahead in pursuit of the mission. Upon return to the camp with the detainee after completion of the task, the question arises about the legal regime according to which the detained person is to be treated: as a civilian according to international human rights standards; or as someone with a status similar to that of a prisoner of war according to international humanitarian law (IHL)?

What’s the difference and why does it matter?

If he is a civilian, he will most likely be treated as an “unprivileged belligerent” who has forfeited his right to protection under IHL and thus may be locked up in a cell for the purpose of criminal investigation under the conditions set out in international human rights standards, including the right to appear before a Judge within a short limit of time and to have regular judicial monitoring of his detention. That, however, may be inconvenient because there is no Judge available in the camp and because there is no criminal investigation against him which could justify his continued detention. Ultimately, he shall have to be either released or handed over to the local authorities, both of which raise new concerns…

The detainee is most certainly not a combatant under IHL and he is therefore not entitled to status as a prisoner of war (POW). However, the Danish commander may still choose to treat the detainee as if he were a POW, thereby keeping him detained for the duration of the armed conflict but granting him the privileges attached to POW status, including immunity from prosecution for lawful acts of war, the right to movement within the detention area (i.e. not in a prison cell) and the right to communicate with his or her unit, family and the ICRC, etc. The POW, to be sure, is not a criminal and can only be detained until the conflict is over or until he no longer poses any threat to the security of the detaining power.

Human Rights or IHL? It’s not the prisoners’ dilemma; it’s the warden’s!

According to the judgement rendered by the European Court of Human Rights in Straßbourg in the case of Al-Jedda vs. the UK on 7th July 2011, however, a State-party to the European Convention on Human Rights is extra-territorially bound by the Convention in cases where its armed forces have detained a person during a multinational military operation in a non-international armed conflict (a NIAC) abroad. Mr. Al-Jedda was detained three years (2004-2007) in Iraq – for security reasons – by British forces in what was then labelled as a NIAC. The Court’s view is that the human rights standards, including Art. 5 (on the right to liberty and security) take priority over IHL norms in NIACs, unless there are clear lex specialis norms in IHL. However, that is not the case when it comes to the detention of belligerents during a NIAC. Accordingly, the person detained by Danish forces in Syria is entitled to have his detention reviewed within 72 hours by a Danish Judge and can only be detained for as long as this is necessary to pursue the criminal investigation against him.

In my view, this is an unreasonable burden to put on the Danish forces acting in multinational military operations abroad because in most cases, the Danish unit does not itself dispose over a detention facility in the camp area and cannot relinquish its responsibilities under the Convention by simply transferring the detainee(s) to another allied power that may have such facilities.

In the recent Danish Parliament Decision No. 108 of 19th April 2016 to deploy Danish forces to Iraq and Syria, an inter-ministerial “Control Committee” is to be established in Copenhagen to monitor the situation closely and to deal, among other tasks, with situations of this nature. But I wonder if this control mechanism will be able to determine, within 3 days and based on the relatively limited amount of information available within this time-frame,whetherwhen, where, how and to whom (if any) the person should be released or whether, in the alternative, he should be detained and, in the affirmative, whether a Judge, a prosecutor and a defence counsel can be produced in time to hear the case in the camp in Syria.

The Directive on application of force issued to the Danish forces, as far as we can discern, suggests that Danish forces should avoid taking detainees at all, but that may not be possible in every instance, as the case above will show.

The way out

The only reasonable solution seems to be for the Danish political leadership to determine for the current and future Directives on application of force, once and for all, that persons detained by Danish forces in international coalition operations during NIACs abroad shall be afforded a status similar to that of a POW – even if they are not formally entitled to enjoy such status. In order to meet some of the Human Rights concerns, the conditions of detention of the “POWs” should be monitored periodically, on site, by members of the Danish Control Committee (perhaps along with a Judge?) every 6 months or so. I believe that something of this kind is being considered in the soon-to-appear Danish Military Manual and any solution along these lines certainly deserves support.

But it is a political decision. And it is urgent.