Handling of Detainees in Military Operations: The African Perspective
During the course of international military operations, the armed forces detain personnel who are either combatants or non-combatants.
Samuel Sserwanga, Senior Legal Analyst, ICPAT – ISS Addis Ababa
During the course of international military operations, the armed
forces detain personnel who are either combatants or non-combatants. A
detainee therefore, refers to any person captured or otherwise
detained by armed forces in a military operation and can be classified
as:
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Enemy prisoner of war: defined under articles 4 & 5 of
the Geneva Conventions Relative to Treatment of Prisoners of War
as one who, while engaged in combat under the orders of his/her
Government, is captured by the armed forces of the enemy.
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Civilian internee: a civilian who is interned during an
armed conflict for security reasons because of his/her having
committed an offence or for his or her protection
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Retained personnel: enemy personnel in the category of medical
personnel, chaplains, Red Cross and voluntary aid societies.
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Security threat detainees: for example if he or she poses a
threat by way of taking photographs of sensitive installations
like bridges etc
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Voluntary detainees: by surrendering one self to the security personnel for protection in situations of armed conflict.
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Criminal detainees: those suspected to have committed an offence
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High value detainees: those in possession of extensive strategic intelligence
The African continent has witnessed an increase in the number of
military operations either drawn from within African States or under
the auspices of the United Nations, African Union for keeping peace,
stabilization of the country in issue and restoration peace, democracy
and the rule of law.
Peacekeepers find that they must detain civilians for a variety of
reasons, more often than not the reasons include assisting local
authorities to maintain law and order, interference with the peace
keepers mission to restore and keep peace, self-defence and acting as
an executive arm of government in the host state territory.
African countries that have had military operations in Africa
include Rwanda, DRC Congo, Liberia, Eritrea, Sudan, Sierra Leone,
Burundi and Somalia among others.
Peacekeepers in these operations face challenges when they are
involved in taking and handling detainees, with violations and abuse of
the detainees’ most fundamental rights.
In Rwanda the role of UN Military Peace keepers was extended to
searching, disarming and detaining suspected genocide criminals until
they were handed over to the prosecutor.
In Bunia, DRC, the peacekeepers conducted routine patrols,
checkpoints at which arrests of common law criminal suspects were
effected and later on detained.
The most acceptable basis for detention in peacekeeping operations
is the consent of the host nation, as a result of the local
authorities’ inability to enforce the law due to breakdown of the state
structures. The right to arrest and detain, which would ordinarily be
exercised by the local authorities, extends to the military operations
where local authorities cannot do so.
The Security Council might also authorize the peacekeepers to detain and handle detainees.
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The legal regime applicable to the protection of detainees
in Africa is to be found in the Geneva Conventions 111 and 1V,
Additional Protocol 1 International Covenant on Civil and
Political Rights, Principles for the Protection of all persons
under any form of Detention (G/A Res 43/173
The Geneva Conventions contain specific rules and obligations of
states relating to the handling of detainees in military operations.
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International customary law practices-norms and widely
accepted practices e.g. prohibition against arbitrary detention,
torture, extra judicial killings and human rights law such as the:
Universal Declaration of Human Rights, Convention against Torture
(CAT), International Covenant on Civil and Political Rights, African
Charter on Human and Peoples Rights, Convention on the Elimination
of all forms of discrimination against Women 1993, Convention on
the Rights of the Child and its Optional Protocol on the
involvement of children in Armed Conflicts.
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International Humanitarian Law: this is often referred to
as the law of armed confrontations and applies to war situations.
It is an attempt to substitute chaos with some kind of order at
times of war.
It stresses the rights and obligation of combatants towards the
civilian population, detainees against the effects of the hostilities
either as detainees or in their private capacities. It makes provision
for the special protection of women and children during armed
confrontations.
The handling of detainees from the African perspective focuses on
the respect and due regard to the fundamental rights in the
international and continental legal instruments including but not
limited to:
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Prohibition from torture, inhuman and degrading treatment of the detainees- CAT
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Arrests should be affected only after explaining the reason for doing so to the suspect
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Right to liberty and integrity not to be arbitrarily deprived
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Rights to legal counsel, religion and family not to be deprived
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Right to have one’s cause to be heard should be given due regard and respect
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Right to be treated with humanity and respect for the inherent dignity of the human person
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Right to judicial guarantees, good hygiene etc.
While there are international and continental legal regimes relating
to the due process of law, the handling of detainees has several
challenges namely:
-
Military operations in Africa have been in countries where there
is a breakdown of state structures like the Judiciary, Police,
Investigation Bureau that makes it difficult to produce the detainees
before court with in 48 ours in accordance with ACHPR.
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Detention facilities in military operation zones are not up to the required standards.
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Transfer of detainees is more often than not impossible by the very nature of the military operations.
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The rights to counsel, interpretation, witnesses, access to
relatives due to the modus operandi of military operations has
continued to be violated.
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Military personnel are ignorant of the legal regimes for handling civilian detainees.
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Military operations more often than not enforce military laws as opposed to civil laws, which guarantees a host of rights.
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In response to the plight of detainees the African
Commission on Human and Peoples Rights established the position of
The Special Rapporteur on Prisons and Conditions of Handling
Detainees in Africa in 1996.
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Resolution on the Right to Recourse of Fair Trial adopted
in 1992 and Resolution on the Prohibition and Prevention of
Torture, Inhuman and Degrading Treatment (Robben Island) 2002
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This was an innovative procedure aimed at addressing the dire position of handling detainees in Africa
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The Special Rapporteur’s main achievement has so far been
the impact through visits to detention facilities including
military operations, reform schools and clandestine centers
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The Special Rapporteur is mainly concerned with the conditions of detainees.
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The Special Rapporteur and the Committee against Torture
reported that in Central African Republic detainees were held
incommunicado, with no access to relatives, counsel, food, health
and under inhuman and degrading conditions.
In the DRC`s Bunia, the Special Rapporteur found that there was
systematic mishandling of detainees by torture, over crowding in
detention facilities, detention of women, children and men in the
same facilities. The special Rapporteur, however, has limitations that
include:
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No access to all detainees in military operations on the African continent.
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Lack of investigative skills needed to make a difference in detention facilities.
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Carries out only two visits per year on average while detainees are being mishandled all the year through.
There has been wide spread mishandling of detainees in Military
operations in Africa as is the case elsewhere. The handling of
detainees is very significant that needs special attention. There is
need for the development of an internationally acceptable legal regime
containing a set of rules and principles that cover the taking and
handling of detainees as opposed to the reliance on human rights
guarantees in the Conventions. Peacekeepers should be liable for their
actions and omissions while handling detainees in military operations.
The challenge of having an internationally acceptable regime remains
the achievement of consensus on which principles are applicable in the
taking and handling of detainees in military operations. However
consensus can be heard on the principles of natural justice, due
process, holding peacekeepers accountable for their actions and
omissions among others.
