Detention by non-state armed groups in NIACs: IHL, international human rights law and the question of the right authority

Abstract

This chapter brings attention to the quite divergent consequences of dealing with the issue of detention by non-State armed groups in non-international armed conflicts under international humanitarian law and international human rights law. The conventional approach to detention in international humanitarian law is that armed groups only have a de facto power, bound by humanitarian obligations. Under the laws of war, the question is partly tied to whether States themselves have the prerogative to detain under Common Article 3 to the 1949 Geneva Conventions and the 1977 Additional Protocol II, a question that is far from settled. Non-State armed groups raise the added problem that they may not be recognized, or be recognized only for the purposes of endorsing humanitarian obligations. If international humanitarian law does not apply to the authority to detain, then the question falls to be resolved by international human rights law. Under the latter, there must be a solid foundation to any deprivation of freedom, and the question cannot simply be one of treating captives humanely. This chapter will suggest that in both cases a theory of non-State actors’ ‘right authority’ is missing when it comes to detaining State troops. Historically, this issue has been obscured by the fact that the right authority has been equated with statehood, but the moment may have come to rediscover how one can identify non-State actors that could be considered privileged in the international legal system.