46 | Towards the Closure of Guantanamo
85.
86.
87.
65
66
67
68
on one side, and armed groups, on the other, in the territory of different States,
mainly Afghanistan and Pakistan. Therefore, when assessing the human rights
situation of the detainees at Guantanamo Bay, the Inter-American Commission may
be required to interpret and apply international human rights law in light of the lex
specialis of international humanitarian law governing non-international armed
conflicts. As the IACHR has previously stated, in this type of conflict, States’
international obligations are governed by both the rules of international human
rights law and those of IHL. 65 Both regimes of human rights protection must be
interpreted and applied in an integral way within the applicable rules of
international law to afford individuals the most favorable standards of protection
available under applicable law. 66
The Third Geneva Convention of 1949 clearly defines the protections afforded to
prisoners of war in international armed conflicts. Although in non-international
armed conflicts States and armed groups also detain individuals for security
reasons, there is no explicit legal basis for this type of deprivation of liberty.
Common Article 3 and the Second Additional Protocol provide certain minimum
standards of treatment, but do not specify legal or procedural safeguards. The
International Committee of the Red Cross (ICRC) has addressed the very specific
issue of “security detention” or “internment” understood as the deprivation of
liberty in a non-international armed conflict ordered by the executive for security
reasons – i.e. outside criminal proceedings.
In an expert meeting organized by Chatham House and the ICRC on procedural
safeguards for security detention in non-international armed conflicts, 67 the experts
agreed that, although IHL does not provide an explicit legal basis for internment in
non-international armed conflicts, “it flows from the practice of armed conflict and
the logic of IHL that parties to a conflict may capture persons deemed to pose a
serious security threat and that such persons may be interned as long as they
continue to pose a threat.” 68 Therefore, given that this practice is not prohibited per
se, the analysis should focus then on the requirements that must be met in order to
ensure that the detention is not and does not become arbitrary.
In this regard, the experts agreed that security detentions must be “necessary” for
“imperative reasons of security” (meaning directly related to the armed conflict);
ordered on “permissible grounds” under international law; and there should be
some form of review mechanism to initially and then periodically assess the
lawfulness of internment (i.e. whether it is or remains necessary for security
IACHR, Truth, Justice and Reparation: Fourth Report on the Situation of Human Rights in Colombia,
OEA/Ser.L/V/II. Doc. 49/13, December 31, 2013, para. 232.
IACHR, Report on Terrorism and Human Rights, OEA/Ser.L/V/II.116.Doc.5 rev.1, October 22, 2002, para. 8.
International Review of the Red Cross, Reports and Documents, Expert meeting on procedural safeguards for
security detention in non-international armed conflicts, Chatham House and International Committee of the
Red Cross, London, 22-23 September 2008, Volume 91 Number 876, December 2009. Available at:
http://www.icrc.org/eng/assets/files/other/irrc-876-expert-meeting.pdf
International Review of the Red Cross, Reports and Documents, Expert meeting on procedural safeguards for
security detention in non-international armed conflicts, Chatham House and International Committee of the
Red Cross, London, 22-23 September 2008, Volume 91 Number 876, December 2009, p. 863.
Organization of American States | OAS
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