Detention in Peace Support Operations. Dr. Tristan Ferraro Legal Adviser ICRC Geneva
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1 Detention in Peace Support Operations Dr. Tristan Ferraro Legal Adviser ICRC Geneva
2 The Importance of the Legal Framework under which Detention Operations are conducted Classification of the situation will determine the legal framework governing detention in Peace Support Operations (PSOs) Detention in International Armed Conflicts: POWs and Internees POWs: GC III grounds of detention and legal regime of detention Internees: GC IV grounds of detention and legal regime (procedures)
3 Legal Framework for Detention in Non- International Armed Conflict Common Article 3 to Geneva Conventions of 1949 "humane treatment" Additional Protocol II Article 4, Article 5 & Article 6 Customary International Humanitarian Law Human Rights Law
4 Specific Legal Issues arising from Detention Operations conducted in Non- International Armed Conflict Legal basis for detention Internment vs. deprivation of liberty on criminal charges IHL, HRL, Domestic Law, SOFAS? Procedural safeguards in internment Conditions and treatment in detention Transfer of detainees non-refoulement
5 The Legal Basis for Detention in PSOs (NIAC) The type of deprivation of liberty in NIAC: internment and criminal detention The legal basis for internment: IHL Domestic law Status of Forces Agreements (SOFAs) Standard Operating Procedures (SOPs) Human rights Law
6 Procedural Safeguards in Internment (NIAC) General principles governing internment: an exceptional measure not an alternative to criminal proceeding an individual measure ceases when reasons for it cease to exist conformity with principle of legality Essential procedural safeguards: right to information right to be registered in a recognized place of detention right to challenge the lawfulness of detention review of such lawfulness by an independent and impartial body right to legal assistance (?) right to periodical review of the lawfulness of continued detention
7 Conditions and Treatment in Detention (NIAC) Legal basis: Common Article 3 to the Geneva Conventions of 1949 Articles 5 & 6 of Additional Protocol II Article 75 of Additional Protocol I Registration, notification and access by the ICRC
8 Transfer of Detainees Pre-transfer responsibilities: The principle of non-refoulement: what does it mean? what does it entail? Transfer Agreements: How do they relate to the principle of non-refoulement? The issue of diplomatic assurances The role of the ICRC in transfer agreements Post-transfer responsibilities: An application by analogy of the rules contained in the GCIII and GCIV? The obligation to ensure respect for IHL
9 Actual Initiatives relevant to Detention in MNOs The UN Interim Standard Operating Procedures - Detention in UN Peace Operations The Copenhagen process on The Handling of Detainees in International Military Operations Resolution 1: Strengthening Protection for Persons deprived of their Liberty in relation to Non-International Armed Conflict
10 The UN Interim Standard Operating Procedures - Detention in UN Peace Operations IHL, human rights law and refugee law Military and police contingents in UN peace operations Release or hand-over to national authorities "as soon as possible" The issue of the SOPs' scope of application
11 The Copenhagen Process International military operations in the context of NIAC or in peace operations Transfer only in compliance with international law obligations
12 Resolution 1: Strengthening Protection for Persons Deprived of their Liberty in NIAC ICRC research, consultation and discussion "ensure that IHL remains practical and relevant in providing legal protection to all persons deprived of their liberty in relation to armed conflict" Conditions of detention Vulnerable categories of detainees Transfers of detainees Grounds and procedures for internment
13 Initiatives relevant to Detention in MNOs Interaction between the Copenhagen Process and Resolution 1 The way forward
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Module 2: LEGAL FRAMEWORK Identify the key components of international law governing the UN s mandated tasks in peacekeeping Learning Objectives Understand the relevance of the core legal concepts and