C EDRIC D E K OKER t f e. D ETENTION DURING P EACE O PERATIONS A C OMPARATIVE L EGAL A NALYSIS GERN Summer School 11 September 2013 research publication sconsultancy conference sCedric De Koker Detention during Peace Operations: A Comparative Legal Analysis Context Aim of study and research questions Relevance Research Design and Methodology Refining Concepts Empirical methods Research stages O VERVIEW GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 2 research publication sconsultancy conference sCedric De Koker In general Rules relating to detention during peace and other international military operations have traditionally been rather clear-cut: Wartime operations: international humanitarian law (IHL) Conflicts were predominately international in nature, the law relating to IACs thus applied Sources: Geneva Convention III, IV + Additional Protocols; SC Resolutions; SOP; MoUs Peacetime operations: international human rights law (IHRL) Sources: o.a. ICCPR (+ regional equivalents), Torture Convention, Body of Principles for the protection of persons under any form of detention or imprisonment, etc. Two evolutions have complicated matters Change in the nature of conflict Transformation of peace operations C ONTEXT GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 3 research publication sconsultancy conference sCedric De Koker Change in the nature of conflict The shift from interstate wars towards intrastate wars has had several noteworthy consequences: Different wartime reality Instead of two opposing state-armies, most often fighting between the state and insurgent groups Different way of fighting: asymmetric warfare No clear division between conflict and peacetime Different body of law applies Law of non-international armed conflicts much less elaborate than the law relating to international armed conflicts Supplemented by norms and standards of IHRL, although the relationship between IHRL and IHL is not clear and disputed C ONTEXT GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 4 research publication sconsultancy conference sCedric De Koker Transformation of Peace Operations From intervention in/after interstate-wars, to intra-state involvement Variety of actors: UN, NATO, EU, Coalition of States, and even individual states Much more diverse and multi-dimensional Traditional peace operations: mostly peacekeeping activities, such as observing cease-fire agreements and assisting peace processes Nowadays: also peace enforcement and peacebuilding activities, such as applying military force; assisting with the demobilization and reintegration process; strengthening institutional capacities in the areas of judiciary and the rule of law (including penal institutions), policing, and human rights Additionnal tasks and responsabilities who traditionnally are state prerogatives are bestowed upon peacekeepers, not only in the military context, but also in the law enforcement context. C ONTEXT GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 5 research publication sconsultancy conference sCedric De Koker Detention-related consequences Authority to detain as a corrollary of the increased responsibilities of peacekeepers In the military context: detention of enemy combatants/insurgents In the law enforcement context: administrative and criminal detention to secure rule-of-law Law of NIAC contains limited rules and standard relating to detention Common article 3, article 75 AP I and APII Concerning treatment of detainees, not about detention authority, transfer of detainees and the right to challenge/review the detenion Supplemented by IHRL standards, but relationship unsure and disputed Not a single legal framework that adequately and thoroughly regulates detention Has led to the creation of legal frameworks ad hoc and by analogy, which in turn has resulted in legal uncertainty C ONTEXT GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 6 research publication sconsultancy conference sCedric De Koker Three goals Contributing to the discussion about detention during international military operations and developing knowledge about the applicable law during NIACs Examining the legal frameworks used during past missions and mapping the differences inter and intra missions, recurring issues as well as legal gaps Evaluating efforts of international community and individual states to address legal uncertainty and reflecting about possible future action A IM OF S TUDY GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 7 research publication sconsultancy conference sCedric De Koker RQ1 What rules of IHL and IHRL are or could be relevant in the context of detention during peace operations? RQ2 How have the International organizations and TCCs conceived the law applicable to the rights of detainees in past peace operations and what differences arose between the adopted legal frameworks? RQ3 What steps have the international community and individual states taken to adress the legal uncertainty and what effects have these measures resorted? RQ4 What further action could or schould be taken to minimize the legal uncertainty with regard to detention in future peace operations? R ESEARCH Q UESTIONS GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 8 research publication sconsultancy conference sCedric De Koker Theoretical relevance Contributing to the discussion about detention during international military operations and developing knowledge about the applicable law during NIACs Practical relevance: twofold For the International community Haziness about the applicable law reflects badly on the international community and can undermine its credibility and capability to effectively bring its missions to a good end. For detainees need a clear legal framework to know their legal status and enforce their rights + uncertainty leaves the door open for malpractices by states (e.g. Abu Ghraib, Gitmo) R ELEVANCE GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,,2013 9 research publication sconsultancy conference sCedric De Koker I. Refining concepts Detention : Both in the military and law enforcement sphere Focus on non-punitive detention Military detention Pre-trial detention Administrative detention Working definition The deprivation of an individuals liberty by peacekeepers, except as a result of conviction for an offence, where the individual has not consented to that deprivation R ESEARCH D ESIGN AND M ETHODOLOGY GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,, research publication sconsultancy conference sCedric De Koker Peace operations: No generally accepted definition Needs to be defined broadly and has to cover: Both UN and non-UN operations Both voluntary (permission from host country) and nonvoluntary peace enforcement, peacekeeping, as well as post-conflict peacebuilding missions Working definition (Stockholm International Peace Research Institute) operations that are conducted under the authority of the UN and operations conducted by regional organizations or by ad hoc coalitions of states that were sanctioned by the UN or authorized by a UN Security Council resolution, with the stated intention to: (a) serve as an instrument to facilitate the implementation of peace agreements already in place, (b) support a peace process, or (c) assist conflict prevention and/or peace-building efforts. (SIPRI) R ESEARCH D ESIGN AND M ETHODOLOGY GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,, research publication sconsultancy conference sCedric De Koker II. Empirical design Different strategies Literature review Case-study Examining and comparing detention during specific missions through a legal and policy analysis and qualitative, semi-structured interviews with legal advisors involved in recent missions Cases: Kosovo (UNMIK, KFOR) Iraq (MNF -> started as occupation, evolved in peace operation) Afghanistan (ISAF, UNAMA) Syria? R ESEARCH D ESIGN AND M ETHODOLOGY GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,, research publication sconsultancy conference sCedric De Koker III.Research stages R ESEARCH D ESIGN AND M ETHODOLOGY GERN Doctoral Summer School White Rose School of Law University of Sheffield September 11,, PhaseObjectiveOutput 1 Fine-tuning conceptual model and research into general legal framework of detention during peace operations (Literature review + legal and policy analysis) Template with relevant international law Publication in international peer reviewed journal Participation in international congress 2 Analyzing the legal framework relating to detention rights used in past peace operations (Literature review, legal and policy analysis, case-file analysis + conducting interviews) Qualitative data interviews Case-files on Kosovo, Iraq and Afghanistan Three publications in international peer reviewed journals 3 Evaluating efforts of the international community and individual states to address legal uncertainty (Literature review, legal and policy analysis + incorporating qualitative data interviews) Participation in international congress Publication in international peer reviewed journal 4 Research into possible future action and formulation of recommendations (Literature review, legal and policy analysis + incorporating qualitative data interviews) 5Integration of research results and writing up of research conclusions with the aim of finalizing a doctoral dissertation Doctoral dissertation Contact Speaker C EDRIC D E K OKER t f e. IRCP Ghent University Universiteitstraat 4 B 9000 Ghent