Presentation made by Jérôme Cario - English Translation

Translated by Amy Iberg from French Original

Detention during peace operations – a practical approach
Lieutenant-colonel Jérôme CARIO

Legal Advisor, Ministry of Defence, France
Chief of Research Office

"More and more often, our armies intervene in complex situations in which positive laws do not always give all the answers. Military ethics and professionalism thus become fundamental in decision-making. Military ethics are primarily a question of culture but also of experience. Here we come to the heart of what makes up an army. There is a duty to teach the rules of conduct to all. At the same time, there is the responsibility to forge strong consciences within individuals. (…) There can be no compromise in the values of an army; its ethics are not flexible, but are the cornerstone of every soldier’s conscience and actions.”
Mme Michèle Alliot-Marie, former minister of Defence, France.


Introduction

The Geneva Conventions of 1949 make up the core of contemporary international law and hold the respect for the individual at the centre of their values. The respect for prisoners of war and captured persons, however, dates back well before the drafting of these modern instruments. The inhuman and odious phenomenon of warfare has occurred in every age known to man; ever since humans have existed, war has existed; ever since war has existed, human beings have sought to limit its consequences. Indeed, we must point out the attempts to limit the conduct of warfare that have been inspired by charity and humanity.

The laws of armed conflict have always been based upon the distinction between combatants and non-combatants. Only combatants have the right to take part in conflict and may be attacked. Civilians may not take part in hostilities; providing they do not, civilians may not be the object of attack.

Once captured, a combatant may not be punished for having taken up arms and for having taken the life of other combatants. As a prisoner of war, a combatant may be detained, not for punishment, but for the sole aim of preventing him or her from being able to return to participate in military operations.

The situation is fundamentally different for a civilian who ‘irregularly’ takes part in combat situations. Such an act by a civilian is not justified. In taking the life of another, he or she is committing a crime – voluntary homicide, or murder – and may be punished for this act by the most severe punishments of the penal code. Further, he or she will not benefit from the privileged status reserved for prisoners ‘of war’ but will be treated as a criminal under ordinary penal law.

When doubt arises regarding the status of a civilian bearing arms who claims to be the member of a resistance, guerilla or rebel movement, that person must be afforded the treatment of a prisoner of war until a competent tribunal decides upon their true status.

Notwithstanding, the norms that a state adopts in its treatment of detained persons are indicative of its civilisation and of its humanity which are exposed for all to see.


i. The Framework In Which Armed Forces are Used

First of all I’d like to return to the political-judicial scope of the deployment of armed forces today. Operations that take place in the “stabilization” phase, in which armed forces are involved, take place in a situation of war that is not declared in the legal sense of the term. However, very often the resolutions adopted by the Security Council are made using Chapter VII of the UN Charter. In other words, these Security Council resolutions authorize the use of force in peace enforcement of peace-building missions.

Thus, the use of force that is used in a situation of ‘judicial’ peace, with both periods of armed conflict and periods of peace, must be in conformity with the application of regular and adapted rules on the treatment of captured person in order to avoid any breach or exaction of those rules.

Any “armed force” – whether an official State army, a regular army of a government that is not recognized by the adversary, or a resistance, guerilla, rebel or militia movement – must satisfy the same four conditions for their members to be immune from being punished for bearing arms in the case of capture. They must:
- be a member of a military organisation;
- be under responsible command;
- respect the rules of the law of armed conflict;
- distinguish themselves from the civilian population.

* Being a member of a military organisation:
The units must have a military structure and organisation. This implies the need for a hierarchy and effective disciplinary measures.
Disorganized and civilian groups that are constituted on an irregular basis will not be afforded the status of combatants. Similarly, a civilian who individually commits acts of warfare, sabotage or antagonism against the enemy will not benefit from the protection of combatant status.

* Being under responsible command
Every armed force must be placed under a command responsible for the acts of its subordinates before the government or other political authority (provisional government, government in exile, the authority of a liberation movement etc.).
It matters little whether or not this authority is officially recognized by the adversary. The essential thing is that members of armed forces are accountable before a political or judicial authority for acts which are contrary to the laws of armed conflict and, more specifically, contrary to the rules governing the limitations of the means and methods of warfare.

* Respect for the rules and customs of war
This military command must ensure the respect of the principles of armed conflict. An isolated violation of one of these principles by one or more combatants is not in itself enough to indicate a failure of the general obligations of the entire force. This would be the case if a war crime is committed by a member of an organised resistance group. A single act of misconduct committed during a large number of operations and over a long period will not result in all members of the movement losing their combatant status.

It is necessary to highlight the fact that a combatant, even after breaching a rule of war, will nevertheless retain his or her status of prisoner of war if captured. He or she will certainly be pursued for the war crime committed. Some States take a more restrictive view of this issue.

Indeed, since the ratification of the Geneva Conventions, different countries have declared that a combatant, even when regular and recognized, who commits a war crime will not benefit from the privileged status afforded to prisoners during their trial and the carrying out of their punishment: the right to have contact with the outside world; the right to receive aid; the right to a fair defence; the right of the ICRC to intervene as a protecting power; the right to assistance in defence, interpreters, witnesses etc. Such States therefore the same legal regime to war criminals as would be applied to persons condemned for a crime under the regular common law of the country.

* Distinguishing from the civilian population
Armed forces, whether they be regular or irregular, are obliged to distinguish themselves as clearly as possible from the civilian population. In practice this generally means wearing a uniform for the “classic” armed forces, or, for resistance or liberation movements, a distinctive fixed sign that is recognizable from a distance.

Wearing a distinctive sign or uniform cannot always be permanent, for example, in occupied territory. Nevertheless, combatants are required to distinguish themselves from the civilian population for such time as they are taking part in an attack or during the military operations leading up to an attack.

This brings to mind certain guerilla actions in occupied territories, ambushes, sabotage, road combat, fighting in vegetation etc. In some extreme cases, there are situations where, by reason of the nature of hostilities such as urban or sabotage or guerilla warfare, an armed combatant is unable to distinguish himself or herself from the civilian population. In these conditions, combatants are obliged to carry their arms openly during every military engagement and during all military operations prior to an attack in which they are participating when they exposed to the view of the adversary.

Some would argue that arms must be worn openly from the moment they are put in use. The extent of this obligation takes into account the particular circumstances of each case. The general principle is always the necessity to avoid mixing combatants with the civilian population. Unfortunately, the failure to comply with this obligation of distinction from the population is a method that is often used.

In any case, contrary to what is often argued, the text of the first protocol which deals with armed groups does not in any respect grant the status of combatant to those who commit acts of “terrorism”. The protection afforded by the first protocol to certain guerilla movements and resistance armies only applies in situations of armed conflict between States or within States. Violence of a terrorist nature does not fall under this protection.

Those who commit terrorist acts inspire terror within populations by using violence against civilians who are completely removed from the terrorist motives. These actions reside at the outer extremities of armed conflicts.

The law of armed conflicts prohibits, even in the case of reprisals, any sort of attack against the civilian population and, in particular, prohibits the use of terror as a method of warfare. The first protocol is very clear on this subject.[1] To benefit from combatant status and therefore acquire the status of prisoner of war upon capture, all persons who take part in combat operations must be part of a structured organisation before being able to respect the rules of the law of armed conflict. This is not the case with those who commit terrorist acts as they are subject to the criminal law of the territory in which they committed the crimes.


II. Persons captured during peacekeeping operations or peacebuilding operations

Persons who surrender to armed forces during an operational engagement or during hostilities become prisoners in the sense of the Geneva Conventions. Conversely, “civilians” who oppose missions conducted by the armed forces may be “captured” in the course of the operation. These persons are then put detained or held but only if the rules of engagement so permit. The host State is responsible for protecting, controlling and caring for these persons. When such a host State does not exist or it is in the hands of adversaries, responsible protecting forces take on the responsibility for these individuals. Additionally, the classification of captured persons means that the forces will adopt a strictly regulated system.

The term ‘captured’ includes several categories of persons. Prisoners are generally treated in a consistent and uniform manner. The only real exception to this is during interrogation. On the contrary, captured persons may be treated differently depending upon the reasons for their arrest. The need to treat certain captured persons differently does not mean that different norms will apply. Whether the person is guarded by the armed forces or is handed over to the civilian police, they must at all times be treated in conformity with the norms established for prisoners in the Third Geneva Convention.

Five categories of prisoners can be defined: [2]
- Category 1: Belligerents, including civilian armies, who take part in hostilities, demonstrate hostile intentions or oppose in another manner the action of friendly forces during operations.
- Category 2: Belligerents or non-belligerents suspected of having committed war crimes, crimes against humanity or other grave violations of humanitarian law and human rights law.
- Category 3: Non-belligerents who commit acts of aggression against friendly forces, who attempt to steal or pillage protected objects or property of friendly forces, or who commit grave infringements as defined by the commander of the force.
- Category 4: Non-belligerents who, without authorization, enter or attempt to enter zones controlled by friendly forces or who oppose the progression of friendly forces by manifestations, riots or other hostile methods.
- Category 5: Non-belligerents held for reasons of security who are not suspected of criminal activities.


III. – The responsibilité of the command over captured persons

While we must remain aware of the “legalism” of operations, we must also not lose sight of the ambit of action. Naturally, this must be taken into account by the military in the planning phase as well as during the conduct of operations. Even if the situations of armed conflict are not wars, neither legally speaking nor in degree of intensity, it is necessary to specify that the savoir-faire and the savoir-être of the military are, for the large part, still identical, and inspired – individually or collectively – by international humanitarian law, the respect for individuals and, in particular, the application of the Third Geneva Convention. Simply speaking, the situations in which French soldiers are currently involved are complex, where the enemy of one day becomes the ally of the next.

This implies that we must be more demanding as to what should be done : firstly, demands placed upon ourselves; equally, demands from our leaders (the clarity of orders, stepping back when necessary) and demands towards our subordinates (understanding, application and execution).
This means:
- Control of the force is always the mark of a real soldier. In particular one must never let hate and violence govern one’s actions;
- Know how to care, capture, tolerate, provide for and respect the enemy;
- To manage one’s subordinates after a skirmish;
- To support the morale of subordinates;
- To reassure the population;
- To manage the tensions of the situation.

It is the responsibility of the military leader on the ground who conducts the action to instill these fundamental principles in his or her troops in men and to make them applicable in each particular circumstance regardless of the complex and diverse difficulties that are linked to the situation. One thing, however, remains: the chief of operations, whatever his or her rank, must make decisions and often in situations of urgency. This obviously entails risks, but also represents the importance of the job which is, afterall, more than just a job.

The actions carried out must be legally irreproachable: liberation, interrogation and detention are, of course, conducted in a military manner but must nevertheless possess an irrefutable and recognizable judicial base. Detention and internment are not synonyms, nor are the terms “captured persons” and “prisoners of war”. Nevertheless, this does not change anything substantial in the treatment that must be afforded by the French military. This necessary result, which is in conformity with both national law and international humanitarian law certainly gives immediate “moral force” to the decision-maker on the ground and also makes his or her decisions seem all the more legitimate. It is not only so that following combat action or the treatment of prisoners will be more straightforward. It is also necessary to determine the history of events and to know who did what before discriminating between captured persons. In determining between persons there is a choice, a responsibility: why free one detained person and hand over another?

Who guarantees that the population will not find such a “freed” person in one month and then massacre them? Who can say that the forces will not hand over this poor soul to what is probably a very strict governmental justice…?

And yet, it is indeed the military chief who is ultimately in charge of making such decisions. Taking into account conscience, culture and military rules, it is the military chief who “says” the law and who “is” the law. In other words, “the law does not always have last word”. In this respect the military chief is something of an “ambassador of values”, humanists as it happens. Taking a moral stance, this means a choice between the “absolute good and the absolute rule”, being theoretically the ideal choice, and the will to “strive towards the good”. This is the reality of a military chief on the ground.

- Treatment of a captured person or of a prisoner.
The issue of whether a person is a “prisoner” must be taken into consideration by every tier of commandment and in every aspect of the process of planning and it is regarding conduct that the commander holds the greatest responsibility. In fact, it is his or her duty to respect and to ensure respect for the rules in operations. To respond to these demands, the commander must know what his or her exact responsibilities are as regards captured persons or prisoners under their control.

The principle responsibilities of the commander towards captured persons are the following:
· every member of the armed forces must conform to the rules of the Geneva Conventions and the First Additional Protocol;
· the prisoners and the detainees who are captured by force must be treated in conformity with the rules of international humanitarian law and with the limitations of the rules of engagement.
· an organisation on the treatement of prisoners must be created with the necessary supplies and of a size corresponding to the expected or possible number of prisoners.
· prisoners must be evacuated as soon as possible from combat zones without being exposed to danger during the lead-up to evacuation.
Although it is the commander who holds responsibility for the overall treatment of prisoners, he or she must delegate certain aspects of procedural responsibility to subordinates. This principle applies at all levels.

Conclusion

Today, one may ask what remains of importance as regards the rules relating to prisoners of war. Indeed, these rules only exist because the combatant accepts the risk of being killed. This risk is real as combatants must distinguish themselves from civilians. It is not enough to simply say one is a combatant, he or she must also visibly be a combatant. This is, in any case, what is anticipated in the rules of the Third Geneva Convention.

Even if the evolution of armed conflicts has influenced the evolution of these rules, this does not change the fact that this visible distinction must be effective at least during every military engagement and during the period immediately preceding an attack.

This requirement is one of the conditions that permits a combatant to benefit from prisoner of war status. The other fundamental and primary condition is that the armed conflict be international. These two requirements significantly limit the situations in which the Third Geneva Convention will be applicable. Indeed, the vast majority of contemporary armed conflicts take the form of internal armed conflicts. In other words, most conflicts now take place in the territory of one sole State between the regular armed forces and dissident armed forces or between two or more dissident forces. For such conflicts, States clearly do not wish to be obliged to respect the protected status of individuals who have taken up arms against the regular armed forces and, instead, consider them to be criminals.

During non-international armed conflicts, detained persons nevertheless remain under the ambit of article 3 common to the four Geneva Conventions and of the second protocol additional to the Geneva Conventions.

This “mini-convention” spells out the minimum guaranties on the treatment of detained persons. Even during the rare cases of international armed conflicts, the application of the Third Geneva Convention is undermined. The notions of “terrorists” and “unlawful combatants” are invoked in order to deny persons the benefit of protected status. But this goes against the very rules of the Third Geneva Convention. If prisoner of war status is contested, the rules nevertheless apply until a competent tribunal is established. If prisoner of war status is refused by such a tribunal, these persons do not fall into a grey-zone in which humanitarian law no longer applies but fall instead under the protection of the Fourth Geneva Convention relating to the civilian population.

It is therefore essential to reaffirm the applicability of these rules and to come up with an exact interpretation. Given the occurrence of new forms of conflict, it is equally feasible that these rules will be questioned in the future. Until now, however, there is nothing to indicate that the current judicial system (being the Geneva Conventions and national and international legislation) can not deal with even the most complex situations.

And if the forces are not able to hand apprehended individuals to local judicial authorities, it is absolutely necessary that a “competent tribunal” is established which is recognized and accepted both by the States which make up the multinational Force and by the host State. This is a political responsibility that the military commander must absolutely fulfil either at the international level or at the national level.

After all, it is only by way of a precise knowledge of the rules pertaining to captured persons and the political and military will to apply them that crimes and homicides may be avoided.


“…Those who think that the laws of armed conflicts should be a subject for deliberation while action itself attaches to concrete realities are extremely misguided and are following the wrong path.”
General of the army, Bruno CUCHE, formally CEMAT.



Translated from French to English by Amy Iberg (International Institute of Humanitarian Law, Geneva).
[1] It can be seen that non-conventional combatants authorise anything that is, justifiably and formally, envisaged and prohibited by the conventions relative to the conduct of hostilities in armed conflicts (jus in bello). Thus, the law of armed conflict takes into account the quasi-totality of acts of war that these perpetrators of violence commit against their victims:
- the obligation to distance military objectives from populated areas (Geneva Convention III, (GCIII));
- unlawful attacks on civilian property (Art 52 of API)
- direct unlawful attacks on civilians (articles 48 and 51 of API)
- the unlawful use of non-combatants to protect military objectives;
- unlawful indiscriminate attacks;
- unlawful attacks on undefended areas (art 59 §1 API)
- unlawful attacks on neutral, demilitarized and/or safety zones (arts 14 & 15 of GCIV and 23 GCI);
- unlawful attacks against objects necessary for the survival of the civilian population, cultural property and places of worship (arts 53 & 54 API);
- unlawful attacks against the natural environment (art 55 API)
- unlawful recruitment of children
- unlawful attacks upon works and installations containing dangerous forces.
[2] Categories listed in the joint doctrine manuel of the National Defence of Canada. Treatment of prisoners of wars and detained persons. Interrogations and interpellations during international operations / J7 doc4/du 01/08/2004.