Automatic Criminal Liability for Unlawful Confinement (Imprisonment) as a War Crime? A Potential Consequence of Denying Non-State Armed Groups the Power to Detain in NIACs

Abstract

The question of whether international humanitarian law (IHL) provides for the power of detention to Parties in a non-international armed conflict (NIAC) has been, of late, highly contentious. Whilst many have opined on this issue, most have reflected upon it purely from within the prism of IHL. This chapter takes a different approach. After identifying the interwoven nature of IHL and war crimes, it considers the issue from the perspective of international criminal law (ICL). It submits that if IHL does not provide for a power of detention in NIACs, then non-State armed groups (NSAGs) that engage in such conduct will most likely commit the war crime of unlawful confinement (imprisonment) as a violation of the laws and customs of war and simultaneously violate domestic criminal law. This has profound consequences. One of the incentives that NSAGs have to follow IHL is the possibility that, if they abide by its principles, they will not stand liable for war crimes. Further, IHL actively encourages the provision of amnesties to members of NSAGs at the end of the NIAC, but this can only extend to domestic crimes and not to war crimes. It is submitted that a situation whereby ICL liability is but a foregone conclusion for the mere act of detention – where no reprieve in the form of an amnesty is available – has a potentially negative effect on the incentive for NSAGs to abide by IHL standards when it comes to how detention is carried out. This should be kept in mind when considering the question of whether IHL provides for an authority to detain in NIACs.