141. Customary international humanitarian law also prohibits arbitrary detention in international
and non-international armed conflicts.134 The Third and Fourth Geneva Conventions, as
well as Article 75 of API, govern the detainment of combatants and civilians during
international armed conflicts. The Third Geneva Convention allows for the detention of
combatants as prisoners of war until the end of active hostilities.135 While an administrative
or judicial review of the lawfulness of detention is not generally required for prisoners of
war, as the lawfulness of such detention is presumed, a competent tribunal must determine
the individual’s status if there are doubts as to whether the person falls within the category
of a prisoner of war under Article 4 of the Third Geneva Convention.136 The Fourth
Geneva Convention allows for civilians to be interned or placed in assigned residence in
exceptional circumstances, when they are either an alien civilian within the territory of a
party to the international conflict (Article 42) or a civilian within an occupied territory
(Article 78). Civilians are only to be detained in exceptional cases. Detention under Article
42 of the Fourth Geneva Convention is permissible only when it is “absolutely necessary”
for the detaining country’s security. The detention of civilians in occupied territory is
permissible only if it is “necessary, for imperative reasons of security”.137 Civilians
detained during international armed conflicts are to have their detention “reconsidered as
soon as possible by an appropriate court or administrative board” (in the case of detention
under Article 42) or “subject to periodical review, if possible every six months, by a
competent body” (in the case of detention under Article 78).138 Such review must be
undertaken by a body that offers the necessary guarantees of independence and
impartiality.139 Article 75 of API provides that detained persons maintain the right to be
promptly informed of the reasons for detention in a language they understand.140
134
“Customary International Humanitarian Law, Rule 99: Deprivation of Liberty”, ICRC website,
<https://www.icrc.org/customary-ihl/eng/docs/v1_rul_rule99>.
135
Third Geneva Convention, Art. 21: “The Detaining Power may subject prisoners of war to internment. It may impose on them
the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not
going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions,
prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the
continuation of the circumstances which make such confinement necessary.” See, also, Third Geneva Convention, Art. 118:
“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
136
Third Geneva Convention, Art. 5. See, also, “International Humanitarian Law and the Challenges of Contemporary Armed
Conflicts”, ICRC, September 2007, op. cit., note 18, pp. 726-727.
137
Fourth Geneva Convention, Art. 42: “The internment or placing in assigned residence of protected persons may be ordered
only if the security of the Detaining Power makes it absolutely necessary”; Art. 78: “If the Occupying Power considers it
necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject
them to assigned residence or to internment.” See, also, Art. 68: “Protected persons who commit an offence which is solely
intended to harm the Occupying Power, (…) shall be liable to internment or simple imprisonment, provided the duration of such
internment or imprisonment is proportionate to the offence committed”; Art. 41 on non-repatriated persons assigned to residence
or internment and Art. 79 on cases of internment and applicable provisions. See, also, “Customary International Humanitarian
Law, Rule 99”, ICRC website, op. cit., note 134.
138
Fourth Geneva Convention, Art. 43: “Any protected person who has been interned (…) shall be entitled to have action
reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that
purpose.”; Art. 78: “Decisions regarding such assigned residence or internment shall be made according to a regular procedure to
be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include
the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision
being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said
Power”; “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op.
cit., note 18, p. 728: “ after the end of an international armed conflict, the Fourth Geneva Convention can no longer be considered
a valid legal framework for the detention of persons who are not subject to criminal proceedings”. See, also, Pejic, “Procedural
Principles and Safeguards”, op. cit., note 16, pp. 386-387; Milanović, op. cit., note 10, p. 249.
139
Commentary on Art. 43, Fourth Geneva Convention, ICRC website,
<https://www.icrc.org/applic/ihl/ihl.nsf/1a13044f3bbb5b8ec12563fb0066f226/b76d6efa7c1a4956c12563cd0042c193>;
56
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents