Posted by hpcr on June 25, 2012  |   Comment  |   Subscribe

 
[Editor's Note: In its efforts to enrich professional dialogue on contemporary challenges of humanitarian law and policy, the Program on Humanitarian Policy and Conflict Research (HPCR) at Harvard University invites experts in international humanitarian law, humanitarian action, and associated fields to contribute their insights to relevant discussions. We are pleased to welcome the contribution below from David Tuck, one of the expert panelists at the 26 June 2012 Live Web Seminar on "Engaging Armed Groups".]
 
The following is an extract from the conclusion of - Tuck, D, Detention by Armed Groups: Overcoming Challenges to Humanitarian Action, (2011) IRRC 883
 
Deprivation of liberty is a reality during armed conflict. The regular occurrence of detention by non-state Parties to non-international armed conflict reflects the current prevalence of this form of armed conflict. In turn, it is not surprising, given the inherent vulnerability of persons deprived of liberty, that such detention has humanitarian implications. These implications may be exacerbated by the particularities of armed groups – as compared to States –  and of their detention practice. Amongst other examples, the tendency of non-state armed groups to detain in undisclosed locales may expose detainees to the effects of hostilities. 
 
The fact of detention by armed groups and its consequences for detainees is a compelling argument for humanitarian engagement of armed groups in pursuance of the most humane treatment and most adequate conditions of detention. In attempting to do so effectively, however, humanitarian actors are confronted by a range of obstacles. In addition to the challenges common to any engagement of armed groups, these include the facts that: the legal basis for detention is absent in domestic law and human rights law and only implicit in IHL; the obligations incumbent upon armed groups for the respect of detainees, where not also of disputed applicability by the group, are either not always comprehensive or lack specificity; engagement in relation to detention, particularly for judicial guarantees, risks legitimization, perceived or real, of armed groups; and, finally, establishing and maintaining a dialogue and access to armed groups and their detention operations is often inherently difficult. As a result, humanitarian actors may be deterred or precluded from addressing this particular issue.
 
For its part, the International Committee of the Red Cross (ICRC) endeavours to overcome these obstacles and to work for the benefit of persons deprived of liberty by armed groups. In doing so, its humanitarian action is fundamentally the same as that which it routinely utilizes in response to detention by states. The ICRC employs confidential, bilateral dialogue – informed by access to detainees, the place of detention, and the individual(s) administering the detention – as its principal tool to humanitarian ends. This dialogue is guided by IHL and is often enhanced by other argumentaires. It results in adapted, contextualized recommendations to the armed group for the improved treatment and conditions of detention of persons deprived of liberty. This dialogue is supplemented, subject to careful consideration, by assistance that is directed not at enabling the detention practice but at improving the situation of the detainees. This is done with full transparency with all opposing parties to the armed conflict. 
 
Although the strength of this approach has its foundation in the ICRC’s extensive experience, the ICRC’s best endeavours have not unfailingly achieved humanitarian outcomes for each person deprived of liberty by an armed group. For the ICRC, as for other humanitarian actors, access to armed groups and their detainees may not be readily forthcoming. In the case of Staff Sergeant Gilad Shalit, for example, the ICRC has acknowledged that its humanitarian action was fundamentally obstructed by lack of access. Despite such obstacles, the ICRC has been able to work successfully for the benefit of persons deprived of liberty by armed groups on many occasions. Commodore Ajith Boyagoda (rtd.) of the Sri Lankan Navy, deprived of liberty by the LTTE for eight years, described the ICRC’s regular visits as ‘a kind of insurance policy against ill-treatment’ and stated: 
 
We basically survived because of the ICRC – not only because of the things they
provided such as food, medicines and the Red Cross Messages, but also because
we could bring our grievances to them as a neutral party. . . . This was a huge
consolation to us
 
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