142. Prisoners of war apprehended during an international armed conflict, who are not facing criminal proceedings or are not convicted and serving a sentence linked to the armed conflict, are to be released or, if applicable, prosecuted at the end of active hostilities.141 Civilians are to be released as soon as the reasons which necessitated their detention no longer exist, unless criminal proceedings are pending or a sentence is being served, or, at the latest, as soon as possible after the end of hostilities.142 An “unjustifiable delay in the repatriation of prisoners of war or civilians” would constitute a grave breach of API, as well as be a clear violation of the prohibition of arbitrary detention under international human rights law.143 143. Detainees captured in relation to non-international armed conflicts are, at a minimum, protected under Common Article 3, customary international law, domestic law, international human rights law and other relevant bodies of law.144 The Geneva Conventions, including Common Article 3, and their Additional Protocols are silent, however, concerning the authority or procedures for detention in a non-international armed conflict. This means that any detention in this context must take the form of administrative detention which, as noted earlier, presents severe risks of arbitrary deprivation of liberty and must comply with several safeguards mentioned above. The ICRC specifically refers to international human rights law, particularly the ICCPR, in relation to the grounds and procedures for detention during these armed conflicts.145 The only applicable rule of international humanitarian law is to be found in Rule 128(C) of the ICRC’s catalogue of rules of customary international humanitarian law, stating that: “[p]ersons deprived of their liberty in relation to a non-international armed conflict must be released as soon as the reasons for the deprivation of their liberty cease to exist”.146 Some international law Commentary on Art. 78, Fourth Geneva Convention, ICRC website, <https://www.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/d794403e436f0823c12563cd0042cf9a>. 140 API, Art. 75(3): “Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.” 141 Third Geneva Convention, Art. 118: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”; Art. 119(5): “Prisoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of punishment”; UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, para. 22; “Customary International Humanitarian Law, Rule 128: Release and Return of Persons Deprived of Their Liberty”, ICRC website, <http://www.icrc.org/customaryihl/eng/docs/v1_rul_rule128>; “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 729. 142 Fourth Geneva Convention, Art. 132: “Each interned person shall be released by the Detaining power as soon as the reasons which necessitated his internment no longer exist. Internees in the territory of a Party to the conflict, against whom penal proceedings are pending for offences not exclusively subject to disciplinary penalties, may be detained until the close of such proceedings and, if circumstances require, until the completion of the penalty”; Art. 133: “Internment shall cease as soon as possible after the close of hostilities”. 143 An unjustifiable delay is a grave breach when committed wilfully and in violation of the Conventions or the Protocol. API, Art. 85(4)(b). See, also, “Customary International Humanitarian Law, Rule 128”, ICRC website, op. cit., note 141. 144 “Customary International Humanitarian Law, Rule 99”, ICRC website, op. cit., note 134; Pejic, “Procedural Principles and Safeguards”, op. cit., note 16, pp. 377-379; “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 726; “The relevance of IHL in the context of terrorism”, ICRC Resource Centre, op. cit., note 24. 145 “Customary International Humanitarian Law, Rule 99”, ICRC website, op. cit., note 134; “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 726; Jelena Pejic, “The protective scope of Common Article 3: more than meets the eye”, International Review of the Red Cross, Vol. 93, No. 881, March 2011, p. 27, <https://www.icrc.org/spa/assets/files/review/2011/irrc-881-pejic.pdf>. 146 “Customary International Humanitarian Law, Rule 128”, ICRC website, op. cit., note 141. 57