16 July 2021

How Armed Groups Can Lawfully Detain Individuals

Delving into the limits of international law, Alessandra Spadaro studies in her PhD thesis which rules apply to the detention of different categories of individuals by armed groups engaged in non-international armed conflicts. She distils these rules into ten basic principles that should inform any detention by armed groups and that are both protective for the detainees and realistic for the armed groups to comply with. As she explains in this interview, international law must grapple with this subject, all the more as arbitrary detention can lead to torture and ill-treatment.

How did you come to choose your research topic?

Most armed conflicts fought today are non-international, meaning that at least one of the parties is an armed group. Additionally, the International Committee of the Red Cross (ICRC) estimates that around 70 million people live under the control of an armed group. In armed conflict, and in the territory under their control, armed groups detain individuals for a variety of reasons. Although a variety of actors (academics, courts, human rights bodies, the ICRC, and United Nations experts) has paid attention to the issue of detention by armed groups, most have focused only on internment (also known as detention for security reasons). My thesis, instead, focuses on the detention of three categories of individuals so as to better encompass the reality of the practice of armed groups, namely: (1) armed group members detained by their own group for disciplinary or criminal reasons, in relation to internal or international offenses; (2) individuals subjected to security detentions for reasons related to the armed conflict; (3) individuals other than the armed group’s own members who are detained in connection with criminal proceedings for common or international crimes. 

I chose this topic for my thesis because it has great practical relevance but also allows for intellectual depth and engagement with fascinating theoretical questions such as the bindingness of international human rights law on armed groups. I was lucky enough to conduct my research under the supervision of Professor Andrew Clapham, who is a renowned expert on non-state actors and human rights. 

Can you describe your research questions and methodology?

Armed groups are not absolutely prohibited from detaining anyone, as there are instances where detentions by armed groups are tolerated. Indeed, under international law, armed groups are addressed by the prohibition of arbitrary deprivation of liberty. My thesis therefore asks how armed groups can comply with such prohibition, and specifically who can be detained by them, for what reasons, and following which procedure. To tackle these issues, I analysed relevant rules of customary and treaty law, stemming from international human rights, humanitarian, and criminal law. I also looked at the practice of armed groups as it emerges from reports of international bodies, expert meetings, studies conducted by political scientists, court decisions, and documents issued by armed groups. I notably adopted an individual-oriented approach, which focuses on (the detainees’) rights first and on (the armed group’s) obligations later. 

What are your major findings?

The prohibition of arbitrary detention requires, at a minimum, that any detention be carried out pursuant to a legal basis and for legitimate reasons, and that the possibility to challenge the detention be granted to any person deprived of liberty. These standards need to be interpreted so as to make it possible for armed groups to comply with them and to detain individuals in a non-arbitrary way. By applying some concepts borrowed from legal pluralism, I argue that “rebel law” is law and that, therefore, armed groups can adopt a legal basis for detention, including by developing existing internal documents (such as codes of conduct) that many armed groups already have. They can also set up detention review bodies that can independently decide whether a detainee should be released. I apply these findings to different instances of detention, showing in which cases and following which procedure certain individuals might be detained by armed groups. In the conclusion of my thesis, I propose ten basic principles that should inform any detention by armed groups and that are at the same time realistic for armed groups to apply as well as protective for the individuals whom they hold.

So, in the interests of pragmatism, you argue that armed groups can comply with international law and should be encouraged to do so. Is this view largely shared among scholars today? 
Applying to non-state entities rules of international law primarily designed to be respected by states is a difficult enterprise. For this reason, the title of my thesis emphasises that detention by armed groups occurs “at the limits of international law”. Indeed, some commentators are sceptical about the applicability of human rights law to armed groups at all or about the ability of armed groups to comply with it. However, my thesis shows that interpreting international law rules – specifically those relating to detention – according to the context in which we apply them makes it possible for armed groups to comply with them to the benefit of the individuals in their power. 

Furthermore, in February 2021, as I was finalising my thesis, 44 United Nations independent human rights experts issued a statement concerning the human rights responsibilities of armed groups. Among other things, they called on states to support the clarification and codification of human rights responsibilities of armed groups and to encourage the adoption by armed groups of policies, practices and codes of conduct for human rights protection. The experts also called on armed groups to commit to respecting, protecting and fulfilling human rights, and to implement their human rights responsibilities in their codes of conduct or other internal documents. This statement, while formulated in general terms, is in line with the findings and proposals advanced in my thesis concerning the specific issue of detention by armed groups. These commonalities are evidence of growing trends and sensitivities that reflect new approaches to international human rights law and international law more generally. While the primary obligations concerning the protection of human rights rest with states, there is an increasing need to insist on the respect and protection of human rights in all circumstances, including when threats to the enjoyment of human rights come from armed groups. Armed groups need to be engaged with, so that relevant international law rules are properly disseminated to them and that they have the possibility to commit to their respect. This is particularly important when it comes to the rules concerning detention, given that arbitrary detention can lead to torture and ill-treatment. 

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Alessandra Spadaro defended her PhD thesis in International Law in June 2021. Professor Paola Gaeta presided the committee, which included Professor Andrew Clapham, supervisor, and Dr Sandesh Sivakumaran, Faculty of Law, University of Cambridge, UK.

Citation of the PhD thesis:
Spadaro, Alessandra. “In the Hands of the Rebels: Detention by Armed Groups at the Limits of International Law.” PhD thesis, Graduate Institute of International and Development Studies, Geneva, 2021.

Library access: contact Dr Spadaro (online version is under embargo for three years).

Banner image: excerpt from a picture by Inked Pixels/
Interview by Nathalie Tanner, Research Office.