Editor's Note: This post is part of the sixth annual Transatlantic Workshop on International Law and Armed Conflict joint blog series.
In many of today’s conflict theaters, international coalitions of states support local authorities in fighting various armed groups. If the supporting states have boots on the ground, almost inevitably they will take detainees or be present when their partners do so. For operational, legal or political reasons, however, they rarely have an interest in keeping detainees under their control for long. Rather, they tend to transfer detainees to the local authorities or coalition partners. While operationally opportune and often requested by the territorial state, in some situations these transfers bear the risk of bringing detainees into the hands of authorities that might not respect fundamental humanitarian norms. Such situations raise acute legal and policy questions.
The Principle of Non-Refoulement During Armed Conflicts
The principle of non-refoulement prohibits the transfer of a person from one authority to another when there are substantial grounds for believing that the person would be in danger of being subjected to violations of certain fundamental rights. Regarding detainee transfers, the non-refoulement principle has been recognized for international armed conflicts in the Third and Fourth Geneva Conventions (Articles 12 GCIII and 45 GCIV) even before it was codified in refugee or human rights law. In most of today’s conflicts, which are non-international in nature, the principle of non-refoulement applies as a matter of international humanitarian law (IHL). It is true that IHL rules applicable in non-international armed conflict do not contain an explicit prohibition of refoulement. Still, the ICRC (2016 Commentary on the First Geneva Convention, paras 708-716) and certain government experts are of the view that the object and purpose of the categorical prohibitions listed in Common Article 3 would not be respected if a detainee is transferred into the hands of an authority where there is a real risk that the receiving authority will not respect them. This interpretation reflects the basic logic of the refoulement principle: If a party to a conflict is prohibited from torturing a detainee, it cannot knowingly transfer the detainee to a place or authority where the person faces a real risk of torture.
In addition and as applicable, the principle also binds states under human rights law (e.g., see Article 3 of the Convention Against Torture, expert opinions of the Human Rights Committee here and here, and jurisprudence of the European Court of Human Rights). The transfer prohibition is particularly recognized where there is a real risk of torture and other forms of ill-treatment or arbitrary deprivation of life.
While the applicability of the non-refoulement norm under IHL and human rights law seems widely accepted, questions regarding its implementation pose challenges.
What Does the Principle of Non-Refoulement Require Procedurally?
The principle of non-refoulement prohibits transfers if the detainee faces a real risk of fundamental rights violations upon transfer. Therefore, it requires the transferring party to assess—in good faith and prior to a transfer—whether there are substantial grounds to believe that a real risk exists that would prohibit the transfer. This assessment needs to take into account the general situation of detainees in the hands of the receiving authority and the individual situation of the detainee who is to be transferred. IHL does not provide much detail on what this assessment means in practice. Nor have human rights bodies opined in detail what form effective remedies against refoulement in armed conflict may take.
In the ICRC’s view, at a very minimum, the detainee needs to be informed of the intended transfer (in a timely manner and in a language that s/he understands) and given the opportunity to express to an independent and impartial body any fears s/he may have about the transfer and explain why s/he would be at risk. These basic requirements are also reflected in the most recent general comment of the Committee Against Torture (para 13). Especially when armed forces operate extraterritorially, it is legally not required and in practice unlikely that such a review body is a judicial one. Independence and impartiality can also be ensured by other means. For example, legal advisers and other government officials who are sufficiently removed from the chain of command that is responsible for the initial decision to transfer the detainee could be involved in the review and take the final transfer decision. During this review, the transfer must be suspended, and the final determination of the review board must be respected and not subject to revision by the chain of command or political leadership
What Role Can Diplomatic Assurances Play?
One avenue that various states pursue in order to transfer a detainee despite a risk of violating fundamental rights is to obtain diplomatic assurances or to conclude agreements to ensure that transferred detainees will be treated humanely. The question of whether such tools should be used and given any weight in a refoulement assessment has been an important point of controversy over the past years. While many NGOs hold that diplomatic assurances should never be resorted to, states have firmly defended their use (see discussions around the Committee Against Torture’s latest general comment).
When conducting a risk assessment for detainee transfers, diplomatic assurances or transfer agreements constitute one factor that can be taken into account when assessing whether or not a detainee can be lawfully transferred. The weight to be given to these instruments, if any, depends on various factors and can only be assessed on a case-by-case basis. Indicators to assess the reliability of such guarantees have been discussed in detail in national policy documents (U.S., Report on the Legal and Policy Frameworks Guiding the United States Use of Military Force and Related National Security Operations, 2016, pp. 42-43) as well as national (U.K., Maya Evans case, para 320) and regional jurisprudence (ECtHR, Othman case, para 189).
In the ICRC’s experience, a key issue is whether relevant agreements include post-transfer monitoring of the well-being of transferred detainees and steps to be taken in cases in which the transferee’s fundamental rights are violated. A number of states have included a right to conduct post-transfer monitoring into transfer agreements (for a U.S. example, see here, p. 43). Indeed, if a transferring state do not assume such post-transfer responsibilities it is very difficult for that state to monitor compliance with a transfer agreement or diplomatic assurances, to ensure the well-being of the transferred person, and to build a relationship in which future transfers may be lawfully conducted.
Which Measures can be Taken if Transfers are not Possible?
Faithful application of the principle of non-refoulement can mean that it is not possible to lawfully transfer a person to another authority—for instance when the recipient authority is notorious for torturing or otherwise ill-treating detainees, or for executing them without fair trial. Practically, this means that the international forces are stuck with the detainee during extraterritorial operations. Short-term solutions in such situations include keeping a detainee in accordance with applicable procedural safeguards, finding an alternative authority to which transfers are lawful, or releasing the detainee. For longer-term solutions, states should work more systematically with partners to ensure humane treatment of detainees, including through assisting in developing necessary rules and procedures, training partner forces, or jointly managing certain detention facilities.
In light of the various legal and operational challenges that extraterritorial detention may entail, it could seem tempting to avoid taking prisoners at all, for instance by conducting “partnered operations” in which only local partners take detainees. A key objective of such “partnered operations” should not be to avoid legal responsibility in light of a real risk that the partnering force would ill-treat the detainee. States have an obligation to ensure respect for IHL by partnering forces (Article 1 common to the Four Geneva Conventions), and states engage their international responsibility if they aid or assist another state in the commission of internationally wrongful acts (Article 16 of the ILC Articles on State Responsibility).
When partnering with other states in fighting armed groups, international law requires that the most fundamental values and norms are respected and protected at all times. Parties to armed conflicts may not transfer a detainee into the hands of an authority that likely disrespects these norms, nor should they aid or assist other states in committing such acts. While relevant international case law is yet to come, some national authorities have started to raise serious doubts regarding moral and legal questions on partnering with forces with a record of ill-treating of detainees. For instance, in 2018 the U.K. Intelligence and Security Committee of Parliament stated that the U.K. carries “ethical or moral responsibility” for the treatment of detainees if it has financial or operational authority in joint military or intelligence operations. Moreover, a Danish court decided that the Danish government has to compensate Iraqi citizens who were captured in the context of a joint military operation and subsequently ill-treated by Iraqi forces.
Ensuring humane treatment of detainees—even if transferred to or captured by partnering forces—is challenging in practice and can make partnering with governments that have a doubtful IHL and human rights records difficult. Instead of pushing back against the law or perceived operational burdens, long-term operational success may rather be achieved if energy is invested in preventing and punishing fundamental rights violations. Better safe than sorry. No government wants moral, ethical or legal responsibility for acts of torture, ill-treatment or extrajudicial killing.