Detention in non-international armed conflicts

Minister of Defence Grete Faremo 
Opening address at the seminar on “Detention in non-international armed conflicts – legal and operational challenges”
22 September 2011

Dear friends,

I am very pleased and honored to have been invited to give some opening remarks today and set the scene for this important and up-to-date seminar. The topic of detention in non-international armed conflict is an issue of high relevance both to the Ministry of Defence and the Armed Forces, as well as to international and national organizations and civil society at large.  I am particularly glad to see that so many highly qualified and dedicated lecturers from different parts of the world have found their way to Oslo and this seminar. A seminar’s success is unquestionably defined by the quality of the lectures and the interventions from the participants – from all of you.

Detention is a regular and inevitable incidence of armed conflict. The changing character of international military operations may raise political, practical and legal issues with regard to the handling of detainees. This necessitates clear guidance in order to ensure full respect for international humanitarian law and applicable human rights law. History, including recent events, is full of examples of abuse and detention practices in obvious violation of law.

A relatively recent example is the civil war in Bosnia and Herzegovina in the 1990s.  I am sure most present here today remember the Serbian prison camp outside Omarska, a town situated in the Western part of Republica Srbska, where Croatian and Muslim men where held prisoners , tortured, killed and abused in different ways.  There is also the infamous case of Srebrenica, which once again will figure in the headlines for some time to come due to the transfer of Ratko Mladic to the International Criminal Tribunal for the former Yugoslavia.  Finally, 16 years after the mass executions of more than 7,000 Muslim men, the Bosnian-Serb general, who was the commanding officer during this evil deed, will face justice.

No need to say that abuse of detained personnel has caused worldwide attention and outcry in recent conflicts, and correctly so.. The photographs taken by US soldiers showing Iraqi prisoners at the Abu Ghraib prison in degrading positions and situations, spread on the internet, may serve as an obvious example. 

Detention is a prolonged form of deprivation of liberty. No one shall arbitrarily be detained or otherwise be held in custody by State authorities against their will. Detention should always be regulated by procedures describing the rights of the detainees. Relevant military and other personnel should receive training with regard to detention and procedures, and a detainee should have the possibility of challenging the lawfulness of his or her detention before an impartial person or body.  And all prisoners, whether held for criminal activities, for security purposes, or just to prevent a person captured on the battlefield from again taking part in hostilities, shall be treated humanely.

These principles are simple, clear and straightforward. However, the modern battlefield of non-international armed conflict – where one or more States fight armed groups, or where different armed groups fight each other – present some other challenges with regard to the interpretation and implementation of international humanitarian law and other relevant sources of law. I hope that some of these issues will be discussed today, such as:

• What exactly is the legal basis for detention in non-international armed conflict? While binding rules on conditions of detention are substantive in international armed conflict, this is not the case in conflicts not of an international character, especially in situations governed by common article 3 in the Geneva Conventions.
• Has an armed group such as the Taliban fighters a legal right under international law to detain Afghan or ISAF forces? If so, for how long and under what legal regime? These questions also touch upon the interaction between international law and applicable national legislation.
• How do we address the lack of procedural safeguards for persons subjected to detention? Does international human rights law come into play, or do we need to develop international humanitarian law as the appropriate lex specialis in situations of armed conflict and hostilities? What are the material content of the customary rules with regard to procedural safeguards?
• In multinational operations, often commanded by an international organisation such as NATO, with a chapter VII mandate for the UN Security Council, recent decisions and judgments from the European Court of Human Rights, illustrate that there may also be a need to sort out legal issues of jurisdiction, attribution and legal authority for security detention operations on a general level.

These issues are real-world challenges. For instance in Afghanistan, Norwegian forces have detained 29 persons since 2006. “Our” detainees have been transferred to Afghan authorities, often within hours after capture. For those still in prison, we do follow-up monitoring under a bilateral agreement with Afghan authorities. This follow-up mechanism is a self-imposed arrangement that goes further than what we are obliged to under the ISAF Standing Operating Procedures (SOP) on detention and transfer of detainees.

Norwegian forces have for each and every transfer situation assessed that there has not been a real risk of torture or other ill-treatment after handover. However, I am the first to admit that we have experienced that the monitoring is not always an easy task, especially in cases where a prisoner has been transferred to another prison or released without informing Norwegian authorities, as Afghan authorities are bound to under the agreement. Let me share a concrete example of the challenges we face: Norwegian forces handed two detainees over to Afghan authorities in 2010. They were convicted by court and served sentences in Faryab prison. They were visited in January. Recently, we received information that they had been transferred to Kabul in March 2011, and Norwegian authorities have for some time now been working with Afghan authorities to verify their location, and to visit the two prisoners to assess their situation.

Before ending my remarks, I would like to take this opportunity to emphasize the value of the co-operation between the Ministry, the Norwegian Armed Forces and the Norwegian Red Cross. This co-operation has been further strengthened during the last years. Relevant to the topic of this seminar, I would mention an agreement which my predecessor concluded with the Norwegian Red Cross in 2007. The agreement concerns the establishment of a National Information Bureau.  According to the Geneva Conventions and the Additional Protocol I, every nation has the responsibility to establish such a Bureau at the start of an international armed conflict to which that state is a party. The main tasks of the Bureau are to receive and forward information about prisoners of war and protected persons in their custody. In Norway, the Norwegian Red Cross will run the Bureau on behalf of the government. In November an exercise will be conducted in order to exercise the personnel involved, both in the Norwegian Red Cross and the Armed Forces. I have expectations that this will become an annual occurrence. We should also perhaps discuss whether the Bureau may play a role in non-international armed conflicts.

The Norwegian Red Cross interacts with the Norwegian Armed Forces at different levels. I truly appreciate this co-operation, which I hope will prosper even further in the future. 

And with these words I will thank you all for listening and wish you a successful seminar. I look forward to later hearing the main points of your discussions and conclusions. Thank you very much.