Report summary: Non-refoulement in Military Operations: Detaine Transfer, Risk Assessments and Monitoring
By Peter Borch Sano Soja
Despite diplomatic and legal efforts for further regulation and standardization, the handling and transfer of detainees in military operations remain a legally complex question of great contention due to the potential risk of torture or poor treatment by the receiving states. In legal terms, these concerns are central to the principle of non-refoulement – a doctrine that has evolved across several fields of international law.
In regards to non-refoulement in military operations, the report concerns itself with the legal terms ‘security detention’, i.e. the deprivation of liberty without criminal charge, as well as ‘detainee transfer’ to the custody of another state authority. The report extends its scope to include both armed international conflicts between two opposing states, as well as non-international armed conflicts consisting of organized armed groups involved in sufficiently intensive fighting with other armed groups or state armed forces.
The process of agreeing on new rules and procedural steps has further evolved by the increasing involvement of human rights bodies such as the European Court of Human Rights (ECtHR). The report thus provides a detailed analysis of the relevant non-refoulement under international humanitarian law (IHL) and human rights law. Of the current IHL treaties, the most relevant ones are the four Geneva Conventions of 1949, coupled with two Additional Protocols later in 1977, and later accompanied by a number of specific treaties on weapons and cultural property. Specifically regarding treatment of detainees and non-refoulement, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides a specialized treaty regime. Although the Geneva Conventions are universally ratified by all states, the same cannot be said for the other treaties. Notably, article 12 of the Geneva Conventions III obligates states to make detailed assessment both prior to and post transfer of a detainee. Following a transfer, the transferring state is thus still obligated to ‘take effective measures’ or to ‘request the return’ of the prisoner if the new detaining power does not live up to required standards.
The report notes that during Multinational Operations, it can be difficult to ascertain which contributing state holds the detaining authority. According ICRC, there can only be one detaining power, and that proper discharge of its responsibility should not be infracted upon, regardless of any arrangements between the different parties involved. The report thus finds a general trend of rejecting joint responsibility. However, the report also notes that while joint responsibility is not enforced by law, states can still be held accountable for not ensuring that other states act within the confines of international law regarding non-refoulement in the context of military operations. If states knowingly aid or assist other states in violations of international law, they can also be held accountable as an accessory after the fact.
As a general principle, the application of the non-refoulement obligations is reserved for the exercise of physical control over the person in question. Non-refoulement obligations under IHL and human rights law primarily apply to the transfer of detainees from one state’s custody to another state or authority. The following sections therefore focus on such transfer situations. As mentioned, previously, states may also be subject to international responsibility in certain non-custodial contexts. As such, the report also discusses why different implementation measures may be equally relevant for discharging the negative and positive obligations that apply in those specific cases.
As previously stated, under Geneva Convention III and IV, the transferring state is required to ensure that receiving state is both willing and able to apply the Conventions. Among other things, this implies a duty to assess the risk that the detainees could be subjected to ill-treatment or torture. Notably, the report finds that the Copenhagen principles are surprisingly silent on this matter. In contrast, the Danish Military Manual entails a detailed section on the need to carry out risk assessments with explicit references to applicable human rights law and relevant case-law.
Importantly, the report stresses that unlike circumstances such as migration, war time circumstances do not necessarily provide the needed amount of information to make a proper assessment of the detainee’s safety post transfer. According to the ICRC, the assessment should consider both the receiving authority’s practices and the detainee’s individual circumstances, drawing on interviews, the detaining power’s own knowledge, and independent sources. The report, however, doubts the actual possibility of enforcing these measures, e.g. interviews in the case of thousands of detainees.
In view of the significant expertise and resources that an effective risk assessment procedure requires, the report finds it surprising that there has not been any move towards establishing joint procedures and mechanisms with like-minded states that often cooperate in military operations. Instances, which the risk of ill-treatment is deemed to be serious, transfers must be halted until appropriate measures to mitigate the risk are in place. The report argues that this is another important area where states like Denmark could strive for greater cooperation with their partners.
Following the satisfied assessment and transfer of a detainee to another state or non-state actor, the ICRC demand a number of minimum procedural guarantees, including timely notification in a language the person understands, an opportunity to present any concerns before an independent and impartial body, and suspension of the transfer pending review of any claimed risk of harm. Although transfer framework often provides detainees with procedural safeguards, the report calls into question the integrity of independent reviews. In the EU framework, for example, the Detention Focal Point assesses the risk of mistreatment but only serves as an advisory role, while the final transfer depends on the the Head of Mission. This raises doubts as to whether the procedure satisfies the requirement of independent scrutiny under international human rights law.
The report also addresses the question of whether transferring states are legally obligated to conduct post-transfer monitoring. Some experts see it as a legal obligation, others as good practice. The prevailing view is that monitoring, in many instances, play a vital role in reducing or eliminating potential risks of ill-treatment and is there to ensure compliance with the non-refoulement obligation under human rights law and IHL. Regarding prisoners of war and other protected persons, Geneva Conventions III and IV mandate further post-transfer obligations, necessitating that transfer states take effective measures in response to any inhumane treatment. Due to the ambiguities related to the duty of monitoring, the report warns that states considering the transfer of prisoners of war or enemy nationals should be careful. The report recommends following the example of the United Kingdom, whose military doctrine demands post-transfer monitoring of all transferred detainees as a matter of policy, regardless of status or pre-transfer risk assessment. Likewise, the report points out the general lack of clear guidance from the European Council on Human Rights (ECHR) as to how long monitoring is required to last post transfer. The only specification is that military forces are required to conduct monitoring until the detainees have either been released or convicted of a crime. According to the Copenhagen Principles and the Danish Military Manuel, this actually falls in line with the general practice among states.
According to the Geneva Conventions III and IV, the transferring state must request the return of a detainee in instances of serious breaches of detention standards as a last resort if all other options have been exhausted. The receiving state is obligated to comply with these requests. This obligation has also been reflected in some transfer agreements, including in non-international armed conflicts. The report notes, however, that this does not appear to form part of the broader non-refoulement obligation under IHL or human rights law. A key practical reason is that detainees are often transferred to their own national authorities. Regardless, the report point out that human rights jurisprudence shows a growing tendency to address unlawful transfers where a risk of ill-treatment was disregarded.
Conclusively, the report’s key point is that the non-refoulement for detainee transfers may require far-reaching measures, which can prove extremely resource-intensive in the context of international military operations. Thus, the report recommends that Denmark should increase its cooperation with like-minded states.
The report concludes with the following recommendations:
- Denmark should build on its good experience with the Copenhagen Process and seek to align itself with like-minded states to develop joint transfer procedures and mechanisms. With a significantly smaller group of states, it will be much easier to find common ground and agree on specific issues left out during the Copenhagen Process. Such a joint and proactive effort will have significant weight vis-àvis the European Court of Human Rights, the UN Human Rights Committee and the UN Committee against Torture
- Denmark should, in particular, focus on developing a joint mechanism for risk assessments. In view of resource constraints and interoperability concerns, like-minded states should pool their resources and build on their best practices. Likewise, they should also establish a joint mechanism for detainees to challenge the decision concerning their transfers. Since this requires the existence of an independent and impartial administrative board, it should ideally be combined with the one performing detention reviews.
- Denmark should also focus on developing joint transfer arrangements and post-transfer monitoring mechanisms as well as risk mitigating measures. Also in this area, like-minded states may benefit from pooling their resources and building on their best practices. They should also ensure a better feedback loop with those in charge of pre-transfer risk assessments.
Read the full report here
