Internment by non-State armed groups : Legal and practical complexities
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MC Meetei
Internment and detention by non-State armed groups (NSAGs) represent some of the most challenging legal and humanitarian issues in contemporary non-international armed conflicts (NIACs). These practices, widespread across conflict zones globally, are fraught with instances of arbitrary detention, inadequate conditions, and violations of international humanitarian law (IHL). Understanding the legal framework governing such actions and the humanitarian concerns they raise is imperative for addressing their implications and ensuring better compliance with IHL principles.
The Legal Framework for Detention by Non-State Armed Groups
Detention – by States and non-State armed groups (NSAGs) – is a reality in armed conflict. In 2021, the ICRC estimated that over 145 armed groups were holding detainees. It occurs under circumstances that vary from the detention of small numbers of adversary combatants to large-scale internment of civilians. Notably, IHL does not categorically prohibit detention by NSAGs; rather, it assumes that all parties to a conflict will detain individuals as part of military operations. Consequently, IHL sets out limitations and procedures to govern detention practices to avoid abuse and arbitrariness.
A critical provision in this context is Common Article 3 of the Four Geneva Conventions of 12 August 1949, which outlines minimum standards of humane treatment. Additional Protocol II to the Geneva Conventions, applicable to NIACs, also provides further procedural and substantive safeguards. For instance, it prohibits arbitrary detention, which is defined under customary IHL as any detention carried out without a legitimate legal basis or regulatory framework.
The International Committee of the Red Cross (ICRC) plays a pivotal role in interpreting and disseminating IHL standards related to detention. Its 2024 Challenges Report emphasises the need for NSAGs to establish clear grounds and procedures for internment to avoid arbitrary practices.
Grounds and Procedures for Internment
Under IHL, internment is an exceptional measure that must be justified on a case-by-case basis. The ICRC underlines that NSAGs should adopt a codified framework—such as a code of conduct or set of rules—detailing the legitimate grounds for internment and procedural safeguards. These grounds generally include individuals posing imperative security threats, such as combatants, spies, or those actively supporting adversary forces.
However, unlawful grounds for internment persist. For example, individuals cannot be detained solely for their familial ties to adversaries, political ideologies, or provision of non-combat support such as food or medical aid. Such practices constitute violations of IHL and undermine the principle of necessity central to lawful detention.
The lack of procedural safeguards compounds the issue of arbitrary detention. Detainees are often left in legal limbo, unaware of the reasons for their internment or the duration. The ICRC recommends mechanisms such as independent review boards to regularly assess the necessity of continued detention. However, the implementation of such reviews by NSAGs remains sparse due to resource constraints and operational limitations.
Humanitarian Concerns and Violations
The humanitarian impact of detention by NSAGs is profound. Detainees often face poor living conditions characterised by congestion, insufficient food, lack of medical care, and exposure to violence and abuse. These conditions are aggravated by the absence of oversight mechanisms and judicial review, leaving detainees entirely dependent on their captors.
Furthermore, specific groups—such as women, children, and the elderly—are particularly vulnerable to mistreatment. Reports have documented cases of sexual violence, enforced disappearances, and extrajudicial killings perpetrated against detainees held by NSAGs. These practices not only violate IHL but may also constitute war crimes under international criminal law.The recent killing of six innocent civilians, including women, children, and an 8-month-old infant, after being held hostage for five days on 15 November 2024—now referred to as the Jakuradhor Massacre—by Kuki mercenaries in the Jiribam District of Manipur, India, stands as a glaring example of war crimes.
The stress and anxiety experienced by detainees are intensified when they are held without clear information about their status or recourse to legal remedies. Families of detainees also endure severe emotional and financial hardships, often compounded by a lack of communication or information about the detainees’ well-being.
(To be contd)
Internment and detention by non-State armed groups (NSAGs) represent some of the most challenging legal and humanitarian issues in contemporary non-international armed conflicts (NIACs). These practices, widespread across conflict zones globally, are fraught with instances of arbitrary detention, inadequate conditions, and violations of international humanitarian law (IHL). Understanding the legal framework governing such actions and the humanitarian concerns they raise is imperative for addressing their implications and ensuring better compliance with IHL principles.
The Legal Framework for Detention by Non-State Armed Groups
Detention – by States and non-State armed groups (NSAGs) – is a reality in armed conflict. In 2021, the ICRC estimated that over 145 armed groups were holding detainees. It occurs under circumstances that vary from the detention of small numbers of adversary combatants to large-scale internment of civilians. Notably, IHL does not categorically prohibit detention by NSAGs; rather, it assumes that all parties to a conflict will detain individuals as part of military operations. Consequently, IHL sets out limitations and procedures to govern detention practices to avoid abuse and arbitrariness.
A critical provision in this context is Common Article 3 of the Four Geneva Conventions of 12 August 1949, which outlines minimum standards of humane treatment. Additional Protocol II to the Geneva Conventions, applicable to NIACs, also provides further procedural and substantive safeguards. For instance, it prohibits arbitrary detention, which is defined under customary IHL as any detention carried out without a legitimate legal basis or regulatory framework.
The International Committee of the Red Cross (ICRC) plays a pivotal role in interpreting and disseminating IHL standards related to detention. Its 2024 Challenges Report emphasises the need for NSAGs to establish clear grounds and procedures for internment to avoid arbitrary practices.
Grounds and Procedures for Internment
Under IHL, internment is an exceptional measure that must be justified on a case-by-case basis. The ICRC underlines that NSAGs should adopt a codified framework—such as a code of conduct or set of rules—detailing the legitimate grounds for internment and procedural safeguards. These grounds generally include individuals posing imperative security threats, such as combatants, spies, or those actively supporting adversary forces.
However, unlawful grounds for internment persist. For example, individuals cannot be detained solely for their familial ties to adversaries, political ideologies, or provision of non-combat support such as food or medical aid. Such practices constitute violations of IHL and undermine the principle of necessity central to lawful detention.
The lack of procedural safeguards compounds the issue of arbitrary detention. Detainees are often left in legal limbo, unaware of the reasons for their internment or the duration. The ICRC recommends mechanisms such as independent review boards to regularly assess the necessity of continued detention. However, the implementation of such reviews by NSAGs remains sparse due to resource constraints and operational limitations.
Humanitarian Concerns and Violations
The humanitarian impact of detention by NSAGs is profound. Detainees often face poor living conditions characterised by congestion, insufficient food, lack of medical care, and exposure to violence and abuse. These conditions are aggravated by the absence of oversight mechanisms and judicial review, leaving detainees entirely dependent on their captors.
Furthermore, specific groups—such as women, children, and the elderly—are particularly vulnerable to mistreatment. Reports have documented cases of sexual violence, enforced disappearances, and extrajudicial killings perpetrated against detainees held by NSAGs. These practices not only violate IHL but may also constitute war crimes under international criminal law.The recent killing of six innocent civilians, including women, children, and an 8-month-old infant, after being held hostage for five days on 15 November 2024—now referred to as the Jakuradhor Massacre—by Kuki mercenaries in the Jiribam District of Manipur, India, stands as a glaring example of war crimes.
The stress and anxiety experienced by detainees are intensified when they are held without clear information about their status or recourse to legal remedies. Families of detainees also endure severe emotional and financial hardships, often compounded by a lack of communication or information about the detainees’ well-being.
(To be contd)