Abstract
This article analyses the outcome of the ‘Copenhagen Process on the Handling of Detainees in International Military Operations’: a five-year multi-stakeholder effort to develop principles and good practices on detention in international military operations. The Process concluded in 2012 when 18 States ‘welcomed’ a set of non-binding ‘Principles and Guidelines.’ The Principles and Guidelines address uncertainties surrounding the legal basis for the detention, treatment, and transfer of detainees during international military operations, drawing on both human rights and international humanitarian law. This article comments on the Principles and Guidelines, shedding some light on the context in which they were developed and adopted.
The author is grateful for comments and suggestions provided by the peer and other anonymous reviewers.
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Notes
- 1.
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (hereinafter: GCI), Article 2; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) (hereinafter: GCII), Article 2; Convention relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135 (entered into force 21 October 1950) (hereinafter: GCIII), Article 2; Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (hereinafter: GCIV).
- 2.
ICRC 2012, p. 3.
- 3.
Ministry of Foreign Affairs of Denmark 2007, p. 363.
- 4.
Cf. Common Article 2 of the 1949 Geneva Conventions.
- 5.
Cf. ICTY, Prosecutor v. Limaj, Judgment Trial Chamber (IT-03-66-T), 30 November 2005, para 90; ICTY, Prosecutor v. Haradinaj et al., Judgment Trial Chamber (IT-04-84-T), 3 April 2008, paras 39–100.
- 6.
ICTY, Prosecutor v. Zejnil Delalic et al., Judgment Appeals Chamber (IT-96-21-A), 20 February 2001, para 143. On Common Article 3 see generally Pejic 2011b.
- 7.
See for example ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, (1996) ICJ Rep 226, para 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, (2004) ICJ Rep 136, paras 134–137; ICJ, Case Concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, (2005) ICJ Rep 168, paras 216–219.
- 8.
The presence of the Multinational Force in Iraq had been mandated by a succession of UNSC Resolutions since 2003. See UNSC Resolutions 1511 (2003), 1546 (2004), 1637 (2005), and 1723 (2006). Annexed to UNSC Res. 1541 (2004) was a letter by the Prime Minister of the Interim Government of Iraq requesting the Security Council to extend the mandate of the multinational force in Iraq.
- 9.
ISAF was established by UNSC Res. 1386 (2001). Annexed to UNSC Res. 1386 was a letter by the acting Minister of Foreign Affairs of the Interim Afghan Authority consenting to the deployment of the multinational force in Afghanistan.
- 10.
The mandate for UNMIK was established by UNSC Res. 1244 (1999).
- 11.
Hereinafter referred to as the ‘Copenhagen Process’ or ‘Process’.
- 12.
Pejic 2011b, pp. 5–9.
- 13.
On detention in peacekeeping missions, see Oswald 2011.
- 14.
Such as the recent French intervention in Mali in January 2013. On the problems of detention, see, e.g., Le Monde, Guerre au Mali: que faire des prisonniers djihadistes? (8 March 2013), available at: http://www.lemonde.fr/afrique/article/2013/03/08/guerre-au-mali-que-faire-des-prisonniers-djihadistes_1845394_3212.html. Accessed 14 April 2014.
- 15.
Ministry of Foreign Affairs of Denmark 2007, p. 371.
- 16.
As of December 2012 GCI had 194 State parties. GCII had 174 parties whereas GCIII and GCIV had 166 parties. For a list of ratifications, see ICRC Annual Report 2012, p. 550.
- 17.
The 1966 International Covenant on Civil and Political Rights (hereinafter: ICCPR) has 168 parties. Other human rights instruments have even fewer. See United Nations Treaty Series Online Collection, available at: https://treaties.un.org. Accessed 14 April 2014.
- 18.
One example is the United Kingdom, which has entered reservations to Article 10 ICCPR and to Article 37(c) of the Convention on the 1989 Rights of the Child, provisions that require juveniles to be detained separately from adults. Reservations to human rights treaties are controversial, but far from uncommon. See, e.g., ILC Report 2011, especially, Principles 3.1.5.6 and 3.2.
- 19.
Wood 2008, p. 143.
- 20.
Ibid. Many States have grappled with the issue of detention in international armed conflict. Referring to the case studies of Israel in Lebanon (2008), the Second Congo War (1998–2003) and the South Ossetian Conflict (2008), Elizabeth Wilmshurst confirms ‘the difficulty which arises from the lack of clear rules in non-international armed conflicts, particular regarding the grounds for detention and procedural safeguards.’ Wilmshurst 2012, p. 498. Ministry of Foreign Affairs of Denmark 2007, pp. 363–392.
- 21.
Hampson 2012, p. 266. See also House of Commons Defence Committee 2014, para 28.
- 22.
Bellinger 2012.
- 23.
Ibid, p. 263.
- 24.
In this regard, see also House of Commons Defence Committee 2013, pp. 14–21.
- 25.
- 26.
It should be noted that the ICRC Customary International Humanitarian Law Study identifies 161 rules as part of customary international law, most of which are said to apply both in international and non-international armed conflicts, including Rule 128 that specifically addresses detention as well as several rules prohibiting various forms of ill treatment. Henckaerts and Doswald-Beck 2005a. The study has, however, been subject to criticism and States have not necessarily accepted all of its conclusions.
- 27.
Cf. Common Article 2 to the 1949 Geneva Conventions.
- 28.
See, e.g., Crawford 2007.
- 29.
Akande 2012, p. 37.
- 30.
While the adopted Principles and Guidelines may blur the line between international and non-international armed conflicts the Parties clearly wished to maintain the traditional distinction. Cf. preambular paras VII and IX.
- 31.
The 1949 Geneva Conventions contain more than 175 provisions on detention. Cf. ICRC 2012, p. 3.
- 32.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 609 (entered into force 7 December 1978) (hereinafter: APII).
- 33.
Sandoz et al. 1987, p. 1384.
- 34.
ICRC 2011, p. 9.
- 35.
For the practical problems related hereto, see, e.g., Hampson 2012, pp. 257–258.
- 36.
Although the question may be difficult to answer where one party refuses to recognise the other party as a State. Cf. Akande 2012, p. 43.
- 37.
Ibid, p. 50. See also Cullen 2010.
- 38.
Hampson 2012, p. 257.
- 39.
ICRC 2011, p. 9.
- 40.
Ibid.
- 41.
Cf. Hampson 2012, p. 249.
- 42.
Article 4(2) ICCPR; Article 15(2) European Convention on Human Rights (hereinafter: ECHR); Article 27(2) American Convention on Human Rights (hereinafter: ACHR). See further HRC 2001.
- 43.
While most human rights treaties allow for derogation of the right to liberty, the Inter-American Court of Human Rights has noted that even in emergency situations the writ of habeas corpus may not be suspended or rendered ineffective. IACtHR, Habeas Corpus in Emergency Situations, Advisory Opinion (OC-8/87), 30 January 1987. See also HRC 2001, paras 11, 13(a). The European Court of Human Rights has allowed detention for up to 7 days with derogations, but even with derogation 14 days has been found to violate the right to liberty. Cf. ECtHR, Brannigan and McBride v. the United Kingdom, Judgment (App. No. 14553/89), 26 May 1993, paras 61–66; ECtHR, Aksoy v. Turkey, Judgment (App. No. 21987/93), 18 December 1996, paras 79–87; IACtHR, Advisory Opinion OC-8/87, IACtHR Series A No. 8, 30 January 1987.
- 44.
See, e.g., Article 4(2) ICCPR; Article 27(2) ACHR; Article 15(2) ECHR. See further HRC 2001.
- 45.
Ministry of Foreign Affairs of Denmark 2007, p. 372.
- 46.
On the extraterritorial application of human rights treaties, see generally Milanovic 2011.
- 47.
In regard to extraterritorial application of human rights treaties, see replies to the HRC 2009, issue 4.
- 48.
- 49.
In its latest report to the Human Rights Committee, the US reiterated its previous position, but also took notice of three important legal sources setting forth the contrary view. HRC 2011, para 505.
- 50.
HRC 2014, para 4.
- 51.
Hampson 2012, p. 265.
- 52.
CAT 2006, para 14. The US further emphasised that it had made its position clear at the conclusion of the negotiations of the Torture Convention, when it stated that the Convention was never intended to apply to armed conflicts. The Committee against Torture provided a terse reply, regretting the US opinion that the Convention did not apply in armed conflict. It further stated that the US ‘should recognize and ensure that the Convention applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction […]’. CAT 2004, para 14.
- 53.
Common Article 3 and APII contemplate security detention, but provide no explicit legal basis for detention nor any procedural safeguards. For an opposite view, see Bellinger and Padmanabhan 2011, p. 212. The purpose of ‘design’ was emphasised in the Nuclear Weapons Advisory Opinion, where the Court stated that ‘The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities.’ (emphasis added). Legality of the Threat or Use of Nuclear Weapons, supra n 7, para 25. The statement was repeated in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n 7, para 105.
- 54.
On this issue, see also Pejic 2005, pp. 377–379.
- 55.
The principle lex specialis derogat legi generali is a principle of conflict resolution. As such it only applies where there is a genuine conflict of norms, that is when two or more norms simultaneously apply to the same subject matter and concurrent application leads to a conflict. Under this principle the more specific rule prevails. See, e.g., Legality of the Threat or Use of Nuclear Weapons, supra n 7, para 25; Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, supra n 7, paras 106, 134–137.
- 56.
Sliedregt and Gill 2005, p. 53. The application in non-international armed conflicts is likewise problematic as the law in many cases is almost non-existent.
- 57.
Due to the paucity of treaty rules, customary law plays a more significant role in non-international armed conflict than in international armed conflicts. Dörmann 2012, p. 348.
- 58.
Afghanistan again provides a useful example. Hampson writes: ‘Whilst the US was of the view that detention was not subject to international legal regulation […] its European partners were concerned about detaining anyone, not knowing how intrusive the European Court might be.’ Hampson 2012, pp. 265–266.
- 59.
Cf. Keller and Stone Sweet 2008, pp. 683–686.
- 60.
Ibid, p. 694.
- 61.
Article 46(1) ECHR.
- 62.
See, e.g., ECtHR, Cyprus v. Turkey, Judgment (App. No. 25781/94), 10 May 2001; ECtHR, Loizidou v. Turkey, Judgment (App. No. 15318/89), 23 March 1995; ECtHR, Issa v. Turkey, Judgment (App. No. 31821/96), 16 November 2004; ECtHR, Al-Skeini and Others v. The United Kingdom, Judgment (App. No. 55721/07), 7 July 2001; ECtHR, Al-Jedda v. The United Kingdom, Judgment (App. No. 27021/08), 7 July 2011.
- 63.
See HRC 1982, para 4.
- 64.
Al-Jedda v. The United Kingdom, supra n 62, para 100.
- 65.
Cf. Naert 2011, p. 319.
- 66.
In Al-Jedda, Lord Bingham expressed serious doubts that an overseas peacekeeping operation could ever satisfy the requirements of Article 15 ECHR, referring to ‘time of war or other public emergency threatening the life of the nation […]’R (Al-Jedda) v. Secretary of State for Defence, Judgment, (2007) UKHL 58, para 38.
- 67.
Al-Jedda v. The United Kingdom, supra n 62, paras 100, 105.
- 68.
In 2008 the UK Court of Appeal held that after the expiry of UNSC Res. 1790 (2007) on 31 December 2008 the UK had no legal power to detain individuals in Iraq. R (Al-Saadoon and Mufhdi R) v. Secretary of State for Defence, (2009) EWCA Civ 7.
- 69.
The Security Council provided an explicit mandate for detention in UN Operations in the Congo, UNSC Res. 169 (1961); in Somalia, UNSC Res. 838 (1993); in Iraq, UNSC Resolutions 1546 (2004), 1637 (2005) and 1723 (2006). According to letters annexed to these latter resolutions ‘internment’ was allowed ‘where this is necessary for imperative reasons of security’.
- 70.
In the influence of the Al-Jedda judgment in international humanitarian law, see Pejic 2011a.
- 71.
This was despite Afghanistan being a party both to the ICCPR and the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. On 6 June 2013, the UK Government announced that transfers would restart as soon as it had been satisfied that it was ‘safe to transfer detainees’ to Afghan detention facilities. See http://www.gov.uk/government/news/transfer-of-detainees-to-afghan-custody-to-resume. Accessed 14 April 2014.
- 72.
See, e.g., ABC News, Australian troops in Afghanistan stop transferring detained prisoners amid torture fears (3 June 2013), available at: http://www.abc.net.au/news/2013-06-03/australia-stops-afghanistan-prisoner-transfers/4728388. Accessed 14 April 2014.
- 73.
Ministry of Foreign Affairs of Denmark 2007, p. 364.
- 74.
Winkler 2008, p. 245.
- 75.
The allegation was made in a documentary ‘Den Hemmelige Krig’ [The Secret War] (2006), directed by C. Guldbrandsen. The case was decided in 2013, when the Danish Supreme Court found that the Government could not have known of any risks when it decided on the transfer in March 2002. See Ghousouallah Tarin v. Ministry of Defence, Judgment (Case No. 180/2011), 27 June 2013.
- 76.
The then Chief Legal Adviser to the Danish Ministry of Foreign Affairs explained that the Copenhagen Process was closed to ‘encourages the openness of the States and organizations involved, enabling them to share their experiences and discuss the best (and worst) practices.’ Winkler 2009b.
- 77.
Ministry of Foreign Affairs of Denmark 2007, p. 368.
- 78.
Bellinger 2012.
- 79.
Ibid.
- 80.
The participants of the first conference in 2007 were Argentina, Australia, Belgium, Canada, Denmark, France, Germany, The Netherlands, New Zealand, Nigeria, Norway, Pakistan, South Africa, Sweden, and the United Kingdom. The ICRC and NATO attended as observers. Cf. Ministry of Foreign Affairs of Denmark 2007, p. 364. The States attending the 2009 conference have not been made public, but the number is mentioned in Winkler 2009a, p. 497.
- 81.
Some organisations, such as Amnesty International, complained about lack of involvement. Cf. Outcome of Copenhagen Process on Detainees in International Military Operations undermines Respect for Human Rights (23 October 2012), available at: http://www.amnesty.org/en/library/asset/IOR50/003/2012/en/00bb3c11-e2e3-4aab-9c71-e933c56756e8/ior500032012en.html. Accessed 14 April 2014.
- 82.
Ministry of Foreign Affairs of Denmark 2007, p. 365.
- 83.
Ibid, pp. 365–366.
- 84.
Preamble, II.
- 85.
- 86.
Winkler 2009a, p. 497.
- 87.
Ibid.
- 88.
Reproduced in Correspondents’ Reports 2012.
- 89.
The relevant States were Argentina, Australia, Canada, China, Denmark, France, Finland, Germany, Malaysia, the Netherlands, Norway, South Africa, Sweden, Turkey, Uganda, United Kingdom, the United States of America and the Russian Federation. See Minutes of the 3rd Copenhagen Conference 2012 (hereinafter: Minutes 2012), available at: http://um.dk/en/~/media/UM/English-site/Documents/Politics-and-diplomacy/Official%20minutes_CP%20ny.pdf. Accessed 14 April 2014.
- 90.
Preamble, XIII.
- 91.
Bellinger 2012.
- 92.
Cf. ICJ, LaGrand case (Germany v. United States of America), Judgment, (2001) ICJ Rep 446.
- 93.
Ministry of Foreign Affairs of Denmark 2007, p. 365.
- 94.
On the issue of definition of detention, see HRC 2012, paras 52–53.
- 95.
Chairman’s Commentary notes that ‘States have differing views as to when and under what circumstances a “restriction on liberty” amounts to detention.’ Chairman’s Commentary to the Copenhagen Process: Principles and Guidelines (hereinafter: Chairman’s Commentary), para 1.4.
- 96.
This seems to be confirmed in the Chairman’s Commentary, which notes that ‘evidence that a person has been detained may include substantial limitations on the freedom to move, or involuntarily confinement within a bounded or restricted area such as a military camp or detention facility.’ Ibid, para 1.1.
- 97.
It might be argued that this would require some indications of the circumstances in which detention could legitimately take place. It is debatable whether the Principles and Guidelines satisfy this requirement.
- 98.
Al-Jedda v. The United Kingdom, supra n 62.
- 99.
For the sake of convenience, the selected Principles and Guidelines will be referred to simply as ‘Principles’.
- 100.
Preambular para IX and Principle 1.
- 101.
Chairman’s Commentary, para 4.1.
- 102.
Ibid, para 4.2.
- 103.
- 104.
Ministry of Foreign Affairs of Denmark 2007, pp. 365–366.
- 105.
Chairman’s Commentary, para 4.2.
- 106.
Preambular para XII.
- 107.
Principles 2, 6, 9.
- 108.
The list is similar, although not identical, to Rule 88 in ICRC Customary Law Study. Henckaerts and Doswald-Beck 2005a, p. 308.
- 109.
ICJ, Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment (2012) ICJ Rep 422, para 99.
- 110.
- 111.
Relying on the Nicaragua case, this was confirmed by the ICTY Appeals Chamber in Tadić. ICTY, Prosecutor v. Tadić, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Appeals Chamber (IT-94-1-AR72), para 102.
- 112.
Nowak 2006, p. 39.
- 113.
Nowak 2014, p. 395. The ECtHR applies a similar strict test, but only if the mistreatment reaches the specific threshold of severity required by Article 3. See ECtHR, Bouyid v. Belgium, Judgment (App. No. 23380/09), 21 November 2013, para 51.
- 114.
Chairman’s Commentary, para 6.2.
- 115.
See, e.g., ECtHR, Izci v. Turkey, Judgment (App. No. 42606/05), 23 July 2013, para 54; ECtHR, Ivan Vasilev v. Bulgaria, Judgment (App. No. 48130/99), 12 April 2007, para 63. See, however, ECtHR, Bouyid v. Belgium, Judgment (App. No. 23380/09), 21 November 2013.
- 116.
The Commentary to APII states that ‘Although food and water seem the most essential elements, hygiene, health and protection against the rigors of the climate are also important factors for human survival’. Sandoz et al. 1987, p. 1368. Similarly, the ICRC Customary Law Study notes that persons deprived of their liberty must be provided with ‘adequate food, water, clothing, shelter and medical attention. This, according to the study, is a long-standing rule of customary international law, applicable both in international and non-international armed conflicts. Henckaerts and Doswald-Beck 2005a, Rule 118, p. 428. The Committee Against Torture has likewise noted that lack of adequate food in prisons may be tantamount to inhuman and degrading treatment. See CAT 2004, para 6(h).
- 117.
A strengthening of the existing legal framework is in the ICRC’s view nevertheless desirable. Cf. Dörmann 2012, p. 351.
- 118.
Article 85 GIIV.
- 119.
Article 59(1)(b) APII.
- 120.
The States that have not ratified APII are Pakistan, Turkey and the United States.
- 121.
Article 25 GCIV.
- 122.
Henckaerts and Doswald-Beck 2005a, Rule 125, p. 445.
- 123.
See, e.g., ECtHR, El-Masri v. The Former Yugoslav Republic of Macedonia, Judgment (App. No. 201239630/09), 13 December 2012, paras 230–240.
- 124.
See, e.g., Article 17(3) of the 2006 International Convention for the Protection of All Persons from Enforced Disappearance.
- 125.
As of April 2014 it had 42 Parties. See United Nations Treaty Series Online Collection, supra n 17.
- 126.
Although there is no provision on vulnerable groups (such as women, children, the disabled and the elderly) which sometimes are allocated special protection in international humanitarian law. Cf. Dörmann 2012, p. 352.
- 127.
Article 75(3) API. Principle 7 is similar to institutional position on relevant standards for internment in armed conflict and other situations of violence adopted by the ICRC in 2005. The standards were inspired by both human rights and international humanitarian law. See Pejic 2005, p. 384.
- 128.
Although some see this as part of the obligation of human treatment. Cf. Dörmann 2012, p. 357.
- 129.
See, e.g., Article 9(2) ICCPR; Article 5(2) ECHR; Article 7(4) ACHR.
- 130.
Principles 12 and 13, respectively. Principle 13 is the only provision that specifically addresses suspected criminals. However, it is generally accepted that Article 74(4) API reflects customary international law applicable in all types of conflict. This means that fair trial rights in human rights and international humanitarian law are almost identical. Cf. Dörmann 2012, pp. 352–353.
- 131.
Principle 12.
- 132.
Article 43 GCIV.
- 133.
Pictet 1958, p. 261.
- 134.
Pejic 2005, p. 387.
- 135.
See, e.g., Aksoy v Turkey, supra n 43, paras 82–83; El-Masri v. The Former Yugoslav Republic of Macedonia, supra n 123, para 233.
- 136.
Chairman’s Commentary, para 12.2.
- 137.
Pejic notes that ‘judicial supervision would be preferable to an administrative board and should be organized whenever possible’. Pejic 2005, p. 387.
- 138.
The wording is identical in most human rights instruments. See Article 9(3) ICCPR; Article 5(3) ECHR; Article 7(5) ACHR.
- 139.
ECtHR, Schiesser v. Switzerland, Judgment (App. No. 7710/76), 4 December 1979, paras 30–31.
- 140.
The Court has heard at least three cases where detention was considered by a military judge-advocate (auditeurs-militair). ECtHR, De Jong, Baljet and Van den Brink v. The Netherlands, Judgment (App. Nos. 8805/79; 8806/79; 9242/81), 22 May 1984, paras 46–50; ECtHR, Van der Sluijs, Zuiderveld and Klappe v. The Netherlands, Judgment (App. Nos. 9362/81; 9363/81; 9387/81), 22 May 1984, paras 42–45; ECtHR, Duinhof and Duijf v. The Netherlands, Judgment (App. Nos. 9626/81; 9736/82), paras 33–35. In De Jong, the Court did find a violation of Article 5(3), because the military judge-advocate could be called upon to perform the function of prosecuting authority after referral of the case to the Military Court.
- 141.
Chairman’s Commentary, para 12.3.
- 142.
Article 43 GCIV specifies that a periodical review shall take place ‘at least twice yearly’ whereas Article 78 provides that such review shall take place ‘if possible every 6 months’.
- 143.
Ibid.
- 144.
- 145.
- 146.
ICRC 2011, p. 9.
- 147.
- 148.
See, e.g., HRC, Wilfred Pennant v. Jamaica, Communication No. 647/1995, UN Doc. CCPR/C/64/D/647/1995 (3 December 1998); ECtHR, Brogan and Others, Judgment (App. No. 11209/84), 29 November 1988.
- 149.
In view of the ‘wholly exceptional circumstances’, the Court did not find a violation of Article 5(3) in the Medvedyev case, where it took 13 days to bring the applicants before an investigating judge. ECtHR, Medvedyev and Others v. France, Judgment (App. No. 3394/03), 29 March 2010, para 105.
- 150.
See, e.g., HRC, David Alberto Cámpora Schweizer v. Uruguay, Communication No. 66/1980, UN Doc. CCPR/C/OP/2 (15 March 1980), where the Committee States that ‘administrative detention may not be objectionable in circumstances where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner […]’, para 18.1. This is not unlike international humanitarian law. Cf. Pejic 2005, p. 382.
- 151.
Pejic 2011b, p. 19.
- 152.
Preambular para II.
- 153.
Ibid.
- 154.
Ministry of Foreign Affairs of Denmark 2007, p. 366.
- 155.
As stated by Rosalyn Higgins, ‘if international law was just “rules”, then international law would […] be unable to contribute to, and cope with, a changing […] world’. Higgins 1994, p. 3.
- 156.
Boyle and Chinkin 2007, p. 216.
- 157.
Cf. Article 31(3)(a) of the 1969 Vienna Convention on the Law of Treaties.
- 158.
Boyle and Chinkin 2007, p. 220. The 2007 non-paper states that ‘the Copenhagen Conference clearly showed that the solution was not the elaboration of new rules on handling of detainees, but to make the existing legal framework comprehensible and feasible to apply in practice […]’. Ministry of Foreign Affairs of Denmark 2007, p. 365.
- 159.
They do not even contain a reference to Common Article 3 or APII, although the 2007 non-paper stated that the common platform should be based on ‘relevant international law such as Common Article 3 of the 1949 Geneva Conventions and Article 75 API.’ Ministry of Foreign Affairs of Denmark 2007, p. 366.
- 160.
Chairman’s Commentary, para 16.2.
- 161.
It should be noted that at times it may be difficult to separate State practice from opinio juris which may be contained within that practice itself. Cf. Henckaerts and Doswald-Beck 2005a, xlvi.
- 162.
Briefing to the Parliamentary Committee on Foreign Affairs on the Copenhagen Process, URU Alm.del Bilag 73, UPN Alm.del Bilag 100 (19 December 2012), available at: http:www.ft.dk/samling/20121/almdel/upn/bilag/100/1204215/index.htm. Accessed 14 April 2014. Author’s own translation.
- 163.
Ibid.
- 164.
Minutes 2012, supra n 89.
- 165.
Wood 2008, p. 144.
- 166.
Ibid. See also House of Commons Defence Committee 2013, para 94.
- 167.
Briefing to the Parliamentary Committee on Foreign Affairs on the Copenhagen Process, supra n 162.
- 168.
Minutes 2012, supra n 89.
- 169.
Russia stated that the Principles and Guidelines ‘could contribute more’ to the safeguarding of the humane treatment of detainees by placing greater emphasis on ‘their inherent rights which derive from the international human rights law and the international humanitarian law’. Ibid.
- 170.
Amnesty International 2012. This is not the first time that the Copenhagen Process has been criticised. Several NGOs have complained of their lack of involvement. This criticism has been rejected by the Danish Government. See Winkler 2009b.
- 171.
For example, Wilmshurst has suggested that ‘A unilateral statement by a government, accepting much of the law on international armed conflicts for the purpose of non-international armed conflicts, would make clear what law is being applied, carving out certain areas of the law and modifying others to fit the situation of non-international armed conflict.’ Wilmshurst 2012, p. 501. See also Dörmann 2012, p. 351.
- 172.
For a discussion of the existing gaps, see ICRC 2011, pp. 8–24. For the ICRC initiative on strengthening legal protection for victims of armed conflict, see http://www.icrc.org/eng/what-we-do/other-activities/development-ihl/strengthening-protection-victims-armed-conflict.htm. Accessed 14 April 2014.
- 173.
Minutes 2012, supra n 89.
- 174.
The statement was made with reference to Peace Operations, but is equally applicable to many international military operations. Fleck 2014, p. 239.
- 175.
For the statement of the Danish Minister of Defence, see http://www.information.dk/462071. Accessed 14 April 2014. Curiously, the Minister did not mention the possibility of release. The ban on prisoner transfers has meant that some prisoners have been detained in Afghanistan for over a year without being charged with any crime. See BBC, Afghans ‘unlawfully held’ by UK forces at Camp Bastion (29 May 2013), available at: http://www.bbc.co.uk/news/uk-22691655. Accessed 14 April 2014.
- 176.
Ministry of Foreign Affairs of Denmark 2007, p. 370.
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Hartmann, J. (2015). The Copenhagen Process: Principles and Guidelines. In: Gill, T., Geiß, R., Heinsch, R., McCormack, T., Paulussen, C., Dorsey, J. (eds) Yearbook of International Humanitarian Law 2013. Yearbook of International Humanitarian Law, vol 16. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-038-1_1
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