The Authority To Intern Protected Civilians in International Armed Conflict

7.
The authority to intern protected

civilians in international armed
conflict
International instruments related to the laws of war did not until recently
envisage the internment of persons other than prisoners of war or retained
personnel. This may be because, as opposed to internment of prisoners of war,
the internment of civilians constitutes the exception to the general rule that
civilians would de facto remain free. Consequently, civilians were not covered
by any specific legal status for a long time, and practice demonstrates that
civilians were traditionally regarded as immune from internment measures.1
The internment of civilians has unfortunately become more common in
contemporary armed conflict, and the Diplomatic Conference of 1949 felt that
it was necessary to circumscribe in a legal instrument such practice in order to
avoid the abuses committed during the Second World War, and in particular
the automatic internment of enemy nationals.2 Today, GCIV includes several
provisions related to the internment of protected civilians during IAC. Does
that include a strong permission to intern civilians? If so, does it concern all
civilians? And does it concern all civilians regardless of where they are? This
chapter will discuss whether IHL provides the permission to intern civilians
in IAC, looking at the definition of protected civilians and at the distinction in
the rules of GCIV between those applicable on the territory of a party to the
conflict and those applicable in occupied territory.
1
See e.g., Jean Pictet (ed.), Commentary on the Fourth Geneva Convention rel-
ative to the Protection of Civilian Persons in Time of War (Geneva: ICRC, 1958),
3; Allan Rosas, The Legal Status of Prisoners of War (Helsinki: Suomalainen
Tiedeakatemia, 1976), reproduced as The Legal Status of Prisoners of War: A Study in
International Humanitarian Law Applicable in Armed Conflicts (Turku/Äbo: Institute
for Human Rights, Äbo Akademi University, 2005), 79.
2
See Pictet, Commentary on the Fourth Geneva Convention (n 1), 258. In particu-
lar, the drafters had in mind the US policy, decided by President Franklin Roosevelt
through Executive Order 9066, to intern people of Japanese descent following the
attack against the naval base at Pearl Harbour.
129
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130 The nature of international humanitarian law
1. A STRONG PERMISSION TO INTERN

PROTECTED CIVILIANS
In the same way that combatant and prisoner of war are not exact matching
categories of persons, civilians do not automatically become civilian internees
in the sense of GCIV once they are arrested. But while most combatants will
have prisoner-of-war status if captured (within the limits presented in Chapter
6), GCIV adds another layer of complexity in the protection it affords: are the
civilians who qualify as protected civilians (technically, in conformity with the
wording of Article 4 GCIV, they are referred to as protected persons) covered
by the protective regime of GCIV? Our purpose here is not to go into the detail
of the definition of protected civilians as provided in Article 4 of GCIV. What
interests us here is that once a person qualifies as a protected civilian, the pro-
tection applicable to such person will then depend on the classification of the
territory on which he or she is found. The structure of GCIV clearly shows that
only two types of territory were envisaged by the drafters of the Convention.
Beyond the general provisions covering the civilian population as a whole,3
everyone protected by the more specific provisions of the Convention has to
be located either on the territory of a party to the conflict – i.e. what is usually
referred to as ‘own’ territory – or on occupied territory. Part III of GCIV
reflects this binary approach: Section I covers both own and occupied territo-
ries; Section II covers exclusively protected civilians who find themselves in
the territory of a party to the conflict; Section III covers exclusively those on
occupied territory; and Section IV relates to civilian internees on either own or
occupied territory. One of the consequences of the binary territorial approach
is that the permission to intern civilians in IAC is itself twofold. We find two
different sets of provisions containing a permissive wording in relation to the
internment of civilians in IAC: one in Section II and one in Section III.
1.1 Permission to Intern Protected Civilians on the Territory of

a Party to a Conflict
It is submitted that Articles 41 and 42 provide a strong permission to intern

protected persons on a belligerent State’s own territory. Article 41, paragraph
1, states that
should the Power in whose hands protected persons may be consider the measures
of control mentioned in the present Convention to be inadequate, it may not have
3
Part II of GCIV.
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The authority to intern protected civilians in IAC 131
recourse to any other measure of control more severe than that of assigned residence
or internment, in accordance with the provisions of Articles 42 and 43.
In turn, Article 42, paragraph 1, provides that ‘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’.
Articles 41 and 42 GCIV do not provide as explicit a permission as Article
21 GCIII does with regard to prisoners of war. Instead, Articles 41 and 42
GCIV function as exceptions: the internment of protected persons is prohibited
except when absolutely necessary. As per the definition of strong permissions
presented in Chapter 1,4 exceptions to and derogations from prohibitions are
considered strong permissions the same way affirmative, straightforward per-
missions are. Furthermore, beyond the fact that the format meets the definition
of a strong permission, it would be illogical to consider that the internment
of protected persons in IAC is only covered by weak permissions, i.e. by
the absence of a position from the legal regime as to whether the conduct is
prohibited or permitted. IHL has a clear position: the internment of protected
civilians is prohibited, except when absolutely necessary. In other words,
IHL creates a prohibition on internment of protected civilians and at the same
time determines that such prohibition shall not apply in certain circumstances.
This means that IHL has attributed a permissive normative value to the act
of interning protected civilians in those circumstances. So, we have a strong
permission.
If any doubt remained, GCIV clarified elsewhere that we are indeed in the
presence of a strong permission. Article 38 of GCIV refers to ‘special meas-
ures authorized by the present Convention, in particularly by Article 27 and
41 thereof’.5
The study of the travaux préparatoires of GCIV confirms that the drafters
intended to confer upon belligerents the permission to intern protected persons
on their own territory. The initial draft of the first paragraph of Article 42, as
prepared during the Stockholm Conference (and which was then referred to
as Article 39), reads: ‘The internment of protected persons in fenced camps
may not be ordered unless the security of the Detaining Power imperatively
demands.’6 Such a wording could have been read as insisting on the location of
internment rather than on the permission to intern. However, the discussions
among the members of Committee III, in charge of the drafting of GCIV, actu-
4
See Chapter 1, Section 2, at page 6.
5
Emphasis added.
6
Final Record of the Diplomatic Conference of Geneva of 1949, Diplomatic
Conference for the Establishment of International Conventions for the Protection of
War Victims (Geneva, 21 April–12 August 1949), Vol. I, 120.
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ally lead us to the opposite conclusion. The Rapporteur of Committee III made
it clear that ‘[t]he words “fenced camps” in the first paragraph of the Stockholm
text had been omitted in order that the rule laid down might be absolutely gen-
eral’.7 In the end, the Commentary in the Report submitted by Committee III
to the Plenary Assembly of the Diplomatic Conference explained again that the
words ‘fenced camps’ had been deleted, ‘so that it should not appear that there
were several categories of internment, some in fenced camps and others in
more or less open spaces’. Instead, it seems that the drafters wanted to insist on
the ‘power to intern’, as shown by the remark made by the UK representative
that it would be ‘unwise to restrict the power to intern’ contained in Article 38
(which later became Article 41 as we know it today).8
In practice, States have considered that the exception contained in Article 42
is a sufficient permission: it is used independently of any further justification
to permit internment on the territory of a party to the conflict. The 2004 UK
Manual refers to the wording of Article 42, turning the exception into a mere
limitation: ‘persons may be interned or placed in assigned residences only if
security requirements make such a course absolutely necessary’.9 In the same
vein, Canada’s 2001 LOAC Manual, in a section entitled ‘Aliens in the terri-
tory of a party to the conflict’, states that ‘[i]f a state considers that the meas-
ures of control over protected persons provided in [GCIV] are inadequate, the
most severe additional measure of control that may be imposed by that State
is that of assigned residence or internment’. It adds that ‘[a] belligerent may
order the internment of protected persons, or their being placed in assigned
residences, only if security requirements make such a course absolutely neces-
sary’.10 In turn, the US Army Field Manual rephrases the exception into a plain
affirmative permission: ‘if the security of the United States makes it absolutely
necessary, enemy aliens may be placed in assigned residence or internment
(GC, art. 42 …)’.11 The Law of Armed Conflict Deskbook published by the
US Army’s JAG School further notes the permission: ‘Internment is the most
7
Ibid., Vol. II-A, 740–741.
8
Declaration of Mr Sinclair, the United Kingdom representative, ibid, Vol. II-A,
658.
9
UK, The Joint Service Manual on the Law of Armed Conflict, Joint Service
Publication 383 (2004 edition, as amended in September 2010 by Amendment 3), para.
9.31.
10
Canada, The Law of Armed Conflict at the Operational and Tactical Levels,
Office of the Judge Advocate General, 13 August 2001, para. 1125.1–2. See also para.
1129.2.
11
US, Department of the Army, The Law of Land Warfare, FM 27-10 (Washington,
1956), para. 26.
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severe form of non-penal related restraint permitted under GC IV.’12 Also in

reference to Article 42 of GCIV, the French Manual on the Law of Armed
Conflict similarly uses a permissive wording, to the effect that: ‘[l]’interne-
ment est une mesure de sécurité qu’un État peut appliquer en même temps
que la mise en résidence forcée en période de conflit armé.’13 A 2007 teaching
manual of Côte d’Ivoire also explains, in relation to enemy civilians in the
national territory, that internment is only authorized under IHL if the demands
of security cannot be satisfied by less severe measures.14
International bodies have also considered that the internment of civilians in
the territory of parties to an IAC was permitted by Articles 41–43 of GCIV.
The ICTY, for instance, considered, in The Prosecutor v. Delalić, that ‘the
drafters of the Fourth Geneva Convention … only permitted internment and
assigned residence as a last resort, and makes them subject to strict rules (arti-
cles 41 to 43 and article 78)’.15
Furthermore, the ICRC also agrees that Article 42 is in itself a valid permis-
sion: ‘the provisions on internment of civilians in IAC or during occupation
meet the legal basis test in the following way: … explicit authorization to
intern in art. 41, para 1, art. 78, para. 1, GC IV’.16 Finally, scholars also see
Articles 41 and 42 as a sufficient legal basis. Kalshoven and Zegveld write
that ‘if the security of a party to the conflict makes such a measure absolutely
necessary, this party may intern protected persons in its territory … (Arts.
41, 42)’,17 while Eric David explains that ‘si la Puissance belligérante peut
12
US, The United States Army Judge Advocate General’s Legal Center and
School, Law of Armed Conflict Deskbook, 5th ed. (Charlottesville: TJAGLCS, June
2015), 110, Section IV.3(d). To be noted that this statement applies to ‘all ‘protected
persons’ who are interned either in the territory of a party to an IAC or in occupied ter-
ritory’ (ibid.), and hence also supports the remarks that will be made in the next para-
graph below in relation to situations of occupation.
13
France, Ministère de la Défense, Manuel de droit des conflits armés, Direction
des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit
européen, Bureau du droit des conflits armés (2001), 40.
14
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Ministère de la Défense,
Forces Armées Nationales, November 2007, Livre III, Tome 1: Instruction de l’élève
officier d’active de 1ère année, Manuel de l’élève, 37–38.
15
ICTY, The Prosecutor v. Zejnil Delalić, Zdravko Mucić aka ‘Pavo’, Hazim
Delić, Esad Landžo aka ‘Zenga’, Trial Chamber, Judgment, Case No. IT-96-21-T, 16
November 1998, para. 572.
16
ICRC/Chatham House, ‘Expert meeting on procedural safeguards for secu-
rity detention in non-international armed conflict. Chatham House and International
Committee of the Red Cross, London, 22–23 September 2008’, International Review of
the Red Cross, Vol. 91, No. 276 (2009), footnote 11.
17
Fritz Kalshoven and Liesbeth Zegveld, Constraints in the Waging of War, 4th ed.
(Geneva/Cambridge: ICRC/Cambridge University Press, 2011), 61.
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s’opposer au départ de personnes protégées étrangères au nom de ses “intérêts

nationaux”, elle peut aussi aller plus loin et les interner … mais alors unique-
ment si sa “sécurité … le rend absolument necessaire” (CG IV, art. 41–42)’.18
Ryan Goodman also believes that Articles 41–42 and 78 ‘plainly permit … the
detention, or internment, of civilians not according to status-based categories,
but according to whether an individual poses a security threat’.19
It is interesting to see that a majority of the examples quoted here have
turned the restrictive wording of Articles 41 and 42 (‘it may not have recourse
to any other measure of control more severe than’, ‘may be ordered only
if’) into positive authorizations (‘may be placed’, ‘peut appliquer’, ‘explicit
authorization’). This confirms that States and others understand Articles 41
and 42 as strong permissions. IHL hence does permit the internment of pro-
tected persons on the territory of a belligerent State. Nevertheless, here again,
it should be noted that some authors see the permission to intern through the
lens of IHL as a restrictive regime. For instance, Derek Jinks writes that the
permission to intern protected persons under GCIV ‘is best understood as
a prohibition on the detention of civilians’.20 Indeed, ‘[i]n circumstances not
satisfying the standard, relating to the need to protect security or perhaps as
recognizing a right to release for all civilians not satisfying that standard, this
provision cannot be understood as conferring on the detaining authority the
legal power to detain’.21
1.2 Permission to Intern Civilians on Occupied Territory
In occupied territories, Article 78 of GCIV provides a strong permission

to intern protected persons. Paragraph 1 provides that ‘[i]f 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’. The modal verb ‘may’, although
employed here with limitations, demonstrates the permission and meets our
definition of a strong permission.
The travaux préparatoires this time do not contain any discussion in rela-
tion to whether Article 78 of GCIV was meant to provide a permission. What
18
Eric David, Principes de droit des conflits armés, 5th ed. (Brussels: Bruylant,
2012), 558.
19
Ryan Goodman, ‘The Detention of Civilians in Armed Conflict’, American
Journal of International Law, Vol. 103, No. 1 (2009), 53.
20
Derek Jinks, ‘International Human Rights Law in Time of Armed Conflict’, in
Andrew Clapham and Paola Gaeta (eds), The Oxford Handbook of International Law
in Armed Conflict (Oxford: Oxford University Press, 2014), 667.
21
Ibid.
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we find instead are either comparisons or references to Article 42 of GCIV,

implying that the drafters took it as obvious that both articles provided a per-
mission. For that reason, we believe that the points presented in the previous
paragraph in relation to Article 42 also apply here. Of course, we cannot ignore
the difference in the wording used in the two permissions: while Article 42
speaks of situations where internment is ‘absolutely necessary’ for the security
of the Detaining Power, Article 78 refers to ‘imperative reasons of security’.
The Final Record of the Diplomatic Conference does not shed any light on
why a different wording was used in the two articles. Nonetheless, Pictet
explains that ‘[i]n occupied territories the internment of protected persons
should be even more exceptional than it is inside the territory of the Parties to
the conflict; for in the former case the question of nationality does not arise.
That is why Article 78 speaks of imperative reasons of security ….’22 In that
sense, although both provisions refer to a high degree of military necessity to
justify resorting to internment, Article 78 can be understood as placing an even
higher standard. This is also the opinion of the ICRC, which confirmed in its
opinion paper on internment in armed conflict that ‘the difference in wording
only indicates that internment by an occupying power should in practice be
more exceptional than in the territory of a party to the conflict’.23 In the end,
although the wording differs slightly, the underlying rationale is ‘in essence
the same’.24 Military necessity requires that, in certain circumstances that
must remain exceptional, internment will be permitted. And indeed, the idea
that a party to the conflict or an Occupying Power may restrict the rights of
individuals is confirmed by other provisions contained in GCIV, as will be
seen next.25
References inserted in military manuals confirm that the provision is used
by States as a strong permission. In particular, it is important to highlight that
Article 78 of GCIV is often used independently of any further justification to
permit internment in occupied territory. The UK Manual states that ‘intern-
ment may … be ordered in the interests of the security of the occupying
power’ and refers to Article 78 as the legal basis leading to that conclusion.26
Germany’s manual states that ‘[i]nternment of civilian persons is permissible
22
Pictet, Commentary on the Fourth Geneva Convention (n 1), 367.
23
ICRC, ‘Internment in Armed Conflict: Basic Rules and Challenges’, Opinion
Paper, November 2014, 7, at https://www.icrc.org/en/document/internment-armed
-conflict-basic-rules-and-challenges (accessed 10 February 2020), 4–5.
24
Ibid.
25
See Section 1.4 below.
26
UK, Manual on the Law of Armed Conflict (n 9), para. 11.24.
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only as an exception’.27 The previous paragraph on internment in a belligerent

State’s own territory also demonstrated that many manuals refer to Article 78
alongside Articles 41 and 42 as representing the equivalent authority to intern
in occupied territories.28 In caselaw, the UK Supreme Court held in Serdar
Mohammed that ‘Article 78 of the Fourth Geneva Convention confers on an
occupying power a right to detain civilians in cases where this is considered
“necessary for imperative reasons of security”’.29 In Israel, the Supreme Court
sitting as a High Court of Justice determined that Article 78 of GCIV ‘permits
the incarceration of persons in respect of whom, on account of their conduct
or their personal background, there are definite grounds for their detention on
security grounds’.30
We have just shown that IHL provides a strong permission to intern pro-
tected civilians in both the territory of a State party to an IAC and in occupied
territory. The existence of these strong permissions is further confirmed by
the express reference within GCIV of authorizations to restrict the rights of
protected persons, themselves based on the principle of military necessity.
1.3 Permission Confirmed by the Existence of Exceptions in GCIV
The internment of protected persons during IAC should remain an exception,

the general rule being that they shall be free. Such exception to the protection
of civilians is not unique within the structure of GCIV.31 If the underlying
purpose is that, to the greatest extent possible, the life of the civilian population
shall not be disrupted by the effects of war, this is not an absolute protection.
GCIV itself provides for exceptions, derogations or restrictions from the
protections afforded to civilians under certain circumstances. Articles 41–42
and 78 GCIV should be understood as deriving directly from such limitations,
which are themselves based on the principle of military necessity.
27
Germany, Druckschrift Einsatz Nr. 03, Humanitäres Völkerrecht in bewaff-
neten Konflikten – Grundsätze, Erarbeitet nach ZDv 15/2, Humanitäres Völkerrecht
in bewaffneten Konflikten – Handbuch, DSK SF009320187, Bundesministerium der
Verteidigung, R II 3, August 2006, 4.
28
See Section 1 above, at page 130.
29
UK, Supreme Court, Al-Waheed v. Ministry of Defence; Serdar Mohammed and
others v. Ministry of Defence, Judgment, 17 January 2017, [2017] UKSC 2, para. 12.
30
Israel, High Court of Justice, Leah Tsemel et al. v. Minister of Defense, HCJ
593/82 [1983], reprinted in Palestine Yearbook of International Law, Vol. 1 (1984),
171.
31
Another example of a permitted restriction is Art. 5 of GCIV, under which, in the
territory of a party to the conflict, ‘rights and privileges as would be prejudicial to the
security of the State’ and, in occupied territory, the ‘rights of communication’ of spies,
saboteurs and persons suspected of hostile activity, may be suspended.
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Article 27 of GCIV explicitly permits restrictions: ‘the Parties to the con-

flict may take such measures of control and security in regard to protected
persons as may be necessary as a result of the war’. The wording here clearly
constitutes a strong permission. Pictet also confirmed, in reference to Articles
41, 42 and 78, that ‘[a]ll three provisions are based on the general reservation
permitt[ed] [by] Article 27, fourth paragraph’.32
This is an example of our earlier argument that the principle of military
necessity is usually already built into specific provisions.33 In the case at
hand, internment is considered as generally not permitted, except in special
circumstances, when the security of the Detaining Power makes it absolutely
necessary or in case of imperative reasons of security: two references to
military necessity. In both cases, indeed, ‘[o]nly considerations related to the
security of the state can justify internment’.34 Articles 42 and 78 epitomize the
dual power of the principle of military necessity. On the one hand, military
necessity is restrictive: because it will rarely be necessary to intern protected
civilians, the general rule is that they shall remain free. On the other hand, it
is permissive when integrated into a specific rule: when necessary, internment
will be permitted. The result of that dual power is that the internment of
protected civilians is an exceptional measure; it is ‘permitted only as ultima
ratio’.35 Accordingly, the permission to intern protected persons shall come
into play only when less restrictive alternative measures are not available.
Put differently, the parties are permitted to intern protected civilians only ‘if
security cannot be safeguarded by other, less severe means …, only as a last
resort’.36 Such alternative measures can include, for instance, ‘the obligation
to register with the police or assigned residence’.37 This is made possible by
the fact that ‘an Occupying Power may adopt additional penal legislation to
that of the occupied territory it administers and thus need not necessarily rely
on internment to address threats to its security or that of the population of the
occupied territory’.38
32
33
34
Hans-Peter Gasser and Knut Dörmann, ‘Protection of the Civilian Population’, in
Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd ed. (Oxford:
Oxford University Press, 2013), 315–316.
35
Ibid., para. 585.
36
37
Gasser and Dörmann, ‘Protection of the Civilian Population’ (n 34), 316, para.
585. The question of whether assigned residence constitutes a less severe measure than
internment was discussed at length during the work of Committee III. See Final Record
(n 6), Vol. II-A, 658, 757, 825 and 854.
38
Els Debuf, Captured in War: Lawful Internment in Armed Conflict (Paris:
Pedone, 2012), 277, footnote 937.
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2. NO PERMISSION TO INTERN NON-PROTECTED

CIVILIANS
The permission to intern on the basis of GCIV only covers protected persons.
By contrast, civilians that do not qualify as protected persons are not covered by
either Article 42 or Article 78 of GCIV.39 In addition, API does not contain any
rule that could serve as a strong permission allowing the resort to internment
for any person not already covered by the GCs. As a consequence, for those
persons, IHL cannot be relied upon to justify the internment. This situation
follows from the general principle that IHL does not govern relations between
a State and its own citizens,40 but rather fills a gap, for protective purposes,
when alien nationals fall into the hands of a party to a conflict of which they
are not nationals. This does not mean that such persons will not be protected
by IHL. If anything, Article 75 of API applies to all ‘persons who are in the
power of a Party to the conflict and who do not benefit from more favourable
treatment under the Conventions or under this Protocol, which is considered as
customary law in both IAC and NIAC’. Considered as customary law in both
IAC and NIAC, Article 75 will hence ensure that some minimum fundamental
guarantees exist to protect such persons. What it does not do, however, is to
provide a permission. Article 75 of API only refers to internment and does not
provide a strong permission to resort to it.
Interestingly, it may have been considered in 1949 that being a protected
person offered greater protection compared with that offered to the rest of the
civilian population. This may no longer entirely be the case today, in particular
when it comes to internment. Indeed, while IHL permits – as we have seen,
under certain conditions – the internment of protected persons, civilians that
do not qualify as protected persons will be covered primarily by the domestic
law of the State concerned and by IHRL. We will discuss that, generally
speaking, the latter regime largely restricts, if not prohibits, their administra-
tive or security detention. In that sense, the development of IHRL has in a way
reversed the logic of IHL, at least when it comes to the permission to intern.
GCIV was initially drafted out of a willingness to offer protection to civilians
during IAC, and as a consequence the definition of protected persons in Article
4 of GCIV follows a protective purpose. However, our conclusion that IHL
permits the internment of protected persons makes us look at GCIV today from
39
Ibid., 423.
40
At least not when the latter are in the hands of their own government. We do rec-
ognize, however, that IHL will nonetheless cover such persons in specific situations
(e.g. during conduct of hostilities, when wounded or sick), or through additional provi-
sions (Part II of GCIV, Art. 75 of API).
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a different angle. The restriction of possible deprivations of liberty by IHRL

has turned IHL into a body of law that grants (at least some) permissions to
States for conduct (here internment) that would otherwise not necessarily be
lawful. As a consequence, non-protected persons may – from a legal point of
view, although not necessarily in practice, and purely in relation to internment
authority – be more protected today than protected persons.
3. VALIDITY OF THE PERMISSION
It is submitted that the permission to intern protected civilians in IAC is only

valid if the other rules on internment put in place under GCIV are respected.
Mirroring the questions posed in relation to the internment of prisoners of war,
some procedural safeguards need to be respected in order for the permission to
intern protected civilians to be valid.
3.1 Collective Versus Individual: a Threat-based Permission
While Article 21 of GCIII pointed to the collective nature of the permission to

intern prisoners of war, Articles 42 and 78 of GCIV expressly require an indi-
vidual assessment of the threat one protected civilian may pose to the security
of the Detaining or Occupying Power. As Pictet puts it in his Commentary on
Article 78, ‘there can be no question of taking collective measures: each case
must be decided separately’.41 This is equally true for internment on the ter-
ritory of the parties to the conflict: ‘[t]o justify recourse to such measures the
State must have good reason to think that the person concerned, by his [or her]
activities, knowledge or qualifications, represents a real threat to its present or
future security’.42
Accordingly, the permission to intern protected civilians, in either a bel-
ligerent State’s own territory or in occupied territory, is conditioned first by
the establishment of an individual assessment. However, notwithstanding
such a plain message, the practice of interning civilians on a collective basis
has unfortunately persisted in some instances. As an example, during the
armed conflict that opposed Eritrea and Ethiopia from 1998 to 2000, Ethiopia
interned 85 Eritrean university students of military age, a practice that the
Eritrea-Ethiopia Claims Commission considered to be in accordance with
IHL.43 This practice, however, should not be considered as modifying the rule.
41
42
Ibid., 258.
43
See Eritrea-Ethiopia Claims Commission, Partial Award, Civilian Claims,
Eritrea’s Claims 15, 16, 23, 27–32 (17 December 2004), para. 117.
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An individual assessment of the threat is required in order for the internment

of protected civilians to be permitted. That the permission would be removed
in the absence of such an individual assessment is made clear both from the
travaux préparatoires and from subsequent interpretation.
The drafters of GCIV considered it essential to include the requirement of
an individual assessment, in an attempt to put an end to the common practice
during the Second World War of massively interning all nationals of the enemy
power present in the other party’s territory.44 As Pictet explains in a footnote in
his Commentary, ‘[t]he fact that a man is of military age should not necessarily
be considered as justifying the application of [internment]’.45
Beyond the fact that the drafters of the Geneva Conventions precisely aimed
at avoiding situations such as the one described in Eritrea and Ethiopia, the
ICTY confirmed that internment of protected civilians required an individ-
ual assessment: it is an ‘exceptional measure to be taken only after careful
consideration of each individual case. Such measure must never be taken on
a collective basis.’46 The Tribunal added that neither age nor citizenship are
in themselves sufficient justifications, precisely because of their collective
nature:
the mere fact that a person is a national of, or aligned with, an enemy party cannot
be considered as threatening the security of the opposing party where he is living
and is not, therefore, a valid reason for interning him …. To justify recourse to such
measures, the party must have good reason to think that the person concerned, by
his activities, knowledge and qualifications, represents a real threat to its present or
future security. The fact that an individual is male and of military age should not
necessarily be considered as justifying the application of these measures.47
The ICRC holds the same position: by contrast with GCIII, ‘[u]nder the Fourth
Geneva Convention model …, persons may be interned only upon an indi-
vidual assessment deeming their internment necessary for security reasons’.48
Finally, doctrine also confirmed that an individual assessment was required
44
45
Ibid.
46
ICTY, The Prosecutor v. Zejnil Delalić et al., Trial Chamber, Judgment (n 15),
para. 577; see also ICTY, The Prosecutor v. Zejnil Delalić, Zdravko Mucić aka ‘Pavo’,
Hazim Delić, Esad Landžo aka ‘Zenga’, Appeals Chamber, Judgment, IT-96-21-A, 20
February 2001, para. 327.
47
ICTY, The Prosecutor v. Zejnil Delalić et al., Trial Chamber, Judgment (n 15),
para. 577. This was reaffirmed by the Appeals Chamber. See ICTY, Prosecutor v.
Zejnil Delalić et al., Appeals Chamber, Judgment (n 46), para. 327.
48
ICRC, Strengthening International Humanitarian Law Protecting Persons
Deprived of their Liberty. Synthesis Report from Regional Consultations of Government
Experts (Geneva: ICRC, November 2013), 16.
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and discarded the reasoning of the Eritrea-Ethiopia Claims Commission as

‘blur[ring] two distinct standards and too easily justif[ying] the internment of
civilians of enemy nationality’.49
In the end, this confirms that the permission to intern protected civilians
is inherently linked to the nature of the assessment. Absent an individual
determination of the necessity to intern a protected person, the party to the
conflict will not be permitted to intern such person. Conversely, the existence
of an individual assessment is nevertheless not sufficient in itself to render the
permission valid: a specific procedure shall also be put in place.
3.2 Permission Based on the Existence of an Adequate Procedure
The individual assessment is not the only requirement conditioning the valid-
ity of the permission to intern protected civilians. GCIV provides additional
rules concerning the procedure to be put in place by the detaining authorities.
Respect for these rules is therefore also an inherent part of the permission to
intern protected civilians during IAC.
Before detailing the required procedure, a preliminary remark seems appro-
priate. We should mention here that a number of scholars and practitioners
contest the claim that the validity of the permission is conditioned upon respect
for the procedural rules. Their main argument is that the legal basis has to be
separated from the procedure required by such legal basis.50 We disagree with
such a position. The existence of a strong permission in an international instru-
ment does not necessarily constitute a valid authorization on its own in cases
where the permission itself is conditioned upon respect for other rules. The
permission and the additional requirements constitute one whole that cannot be
approached separately. In the case of internment of protected civilians, GCIV
contains a ‘demonstrable structural commitment … conditioning the exercise
of coercive authority on the observance of certain minimum humanitarian
requirements’.51
That the permission is intrinsically conditioned upon respect for the pro-
cedural guarantees is actually confirmed by the wording of Article 79, which
states that ‘[t]he Parties to the conflict shall not intern protected persons, except
49
Marco Sassòli, ‘The Approach of the Eritrea-Ethiopia Claims Commission
towards the Treatment of Protected Persons in International Humanitarian Law’, in
Andrea de Guttry, Harry H. G. Post and Gabriella Venturini (eds), The 1998–2000 War
Between Eritrea and Ethiopia (The Hague: T.M.C. Asser Press, 2009), 345.
50
See e.g. Curtis A. Bradley and Jack L. Goldsmith, ‘Congressional Authorization
and the War on Terrorism’, Harvard Law Review, Vol. 118, No. 7 (2005).
51
Ryan Goodman and Derek Jinks, ‘International Law, U.S. War Powers, and the
Global War on Terror’, Harvard Law Review, Vol. 118, No. 7 (2005), 2659.
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in accordance with the provisions of Articles 41, 42, 43, 68 and 78’,52 hence
making it clear that the protection afforded to civilian internees is an inherent
part of the permission. This also seems to be the opinion of the ICRC when it
states that ‘[i]n IAC, IHL permits the internment of prisoners of war (POWs)
and, under certain conditions, of civilians’.53 The fact that the ICRC is making
a clear distinction between the internment of prisoners of war, which is not
qualified by any procedural requirements, and that of civilians, which is made
conditional upon respect for specific conditions, confirms our conclusion that
the procedure required by both Articles 43 and 78 is an inherent part of the
permission to intern protected civilians. The ICTY Appeals Chamber also
agreed, thereby confirming a previous conclusion of the Trial Chamber that
‘the exceptional measure of confinement of a civilian will be lawful only in
the conditions prescribed by Article 42, and where the provisions of Article
43 are complied with’.54 Continuing its reasoning, the Chamber specified that
‘the detention or confinement of civilians will be unlawful … (ii) where the
procedural safeguards required by Article 43 of Geneva Convention IV are not
complied with in respect of detained civilians, even where their initial deten-
tion may have been justified’.55
Only the establishment of the procedures called for by Articles 43 and 78 of
GCIV can indeed ensure that a person is interned in accordance with IHL, that
is to say, on the basis of legitimate security concerns. Procedure is essential in
determining whether the person actually represents a threat. The permission
to intern protected civilians – contrary to that for prisoners of war – is not
status based but rather threat based, and threat can only be determined through
an individual assessment, it can never be assumed. Here we would refer to
a passage of the ICRC’s opinion paper on internment, which encapsulates the
difference between prisoners of war and civilians:
It is sometimes asked why IHL provides procedural safeguards to civilians interned

in international armed conflict and not to POWs. The simple answer is that, in
reality, there is far less certainty as to the threat a captured enemy civilian actually
poses than is the case with a combatant who is, after all, a member of the adver-
sary’s armed forces. In contemporary warfare civilians are, for example, often
detained not only in direct combat, but also on the basis of intelligence information
suggesting that they represent a security threat. The purpose of the review process
is to enable a determination of whether such information is reliable and whether the
52
Emphasis added.
53
ICRC, ‘Internment in Armed Conflict’, Opinion Paper (n 23), 3 (emphasis
added).
54
ICTY, The Prosecutor v. Zejnil Delalić et al., Appeals Chamber, Judgment (n
46), para. 322.
55
Ibid.
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person’s activity meets the high legal standard that would justify internment and its
duration.56
The individual nature of the review process as well as the procedure required
by Article 78 are an integral part of the permission to intern protected civil-
ians. Absent such procedure, there can indeed be no certainty that the person
interned actually falls under the personal scope of the permission to intern.
As a consequence, the permissions to intern protected civilians under GCIV,
although valid on their own, are not self-executing: they need to be comple-
mented by domestic legislation putting in place such procedure. Whereas we
do not believe that this affects the conclusion that IHL provides a strong per-
mission, this may have an impact on the question of whether such permission
amounts to a legal basis. This will be discussed in Chapter 9.57
3.2.1 Procedure required under Article 43 of GCIV

As far as internment of protected civilians in a belligerent State’s own territory
is concerned, the travaux préparatoires show that the drafters wanted to leave
States some freedom on how the procedure would be carried out. But they also
made clear that if the details of the procedure were left up to States, the latter
had to clarify them through domestic legislation.
For instance, the members of Committee III debated the question of whether
the procedure to review internment should be an administrative or a judicial
one.58 In the end, members considered that this was a responsibility of respec-
tive governments and that internment of protected civilians should in any case
be organized by domestic law. Internment was ‘a matter for each Government
to organize as it saw fit’.59 The absence of instructions within Article 42 regard-
ing the type of authority in charge of internment decisions was welcomed by
State representatives. One of them explained that ‘[t]he Detaining Powers
could thus follow their own legislation in the matter, making either the police,
the administrative or the military authorities responsible’.60 It is therefore up
to the State to decide whether the decisions of appeal against internment will
be dealt with by a court or an administrative board.61 What interests us here is
that because of this lack of instruction, Article 43 GCIV cannot be considered
as a self-executing rule. In other words, in order for States to be in compliance
56
ICRC, ‘Internment in Armed Conflict’, Opinion Paper (n 23), 5.
57
58
See Final Record (n 6), Vol. II-A, 659–660, 738–739.
59
Ibid., 660.
60
Ibid., 740–741.
61
Ibid., 826.
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with the requirements under GCIV, complementing domestic legislation is

necessary.62
We therefore agree with the ICRC that GCIV provides valid permissions,
which, however, need to be complemented by domestic legislation. The ICRC
expressed its opinion that ‘the Fourth Convention constitutes a sufficient legal
basis for internment, which means that States do not have to enact additional
domestic legislation to provide for a legal basis’.63 Nevertheless, it still added
in a footnote: ‘[b]ut regulations elaborating on the internment review process
would in practice be necessary, as evidenced by art. 78 of the Fourth Geneva
Convention, which provides that the Occupying Power will establish a “regular
procedure” for decisions related to internment’.64 As has been explained above,
this is equally applicable in a belligerent State’s own territory. The drafters
indeed intended for States to decide how to implement Article 43 of GCIV,
mainly in order to provide ‘sufficient flexibility to take into account the usage
in different States’.65 This means that domestic legislation is necessary to give
effect to the requirements of Article 43 of GCIV.
State practice confirms our position, as suggested by the adoption of
domestic legislation implementing the procedural requirements of Article 43
of GCIV. The Israeli government, for instance, adopted in 2002 legislation
regulating the internment of ‘unlawful combatants’ (applicable in both types
of territories). The Incarceration of Unlawful Combatants Law66
gives the state authorities power to detain ‘unlawful combatants’ as defined in

section 2 of the law, i.e., persons who participate in hostilities or are members of
forces that carry out hostilities against the State of Israel and who do not satisfy the
conditions that grant a prisoner of war status under international humanitarian law.67
The legislation has mainly been used against Palestinian residents of Gaza,
but it seems that it would also be applicable on Israel’s own territory.68 Israel’s
62
Art. 80(1) of API complements the obligation to pass implementing legislation at
the national level.
63
ICRC, ‘Internment in Armed Conflict’, Opinion Paper (n 23), 5–6.
64
Ibid., 6.
65
66
Israel, Incarceration of Unlawful Combatants Law, 5762-2002 (2002),
unofficial translation at https://www.icrc.org/applic/ihl/ihl-nat.nsf/0/7A09C4
57F76A452BC12575C30049A7BD (accessed 10 February 2020).
67
Israel, Supreme Court, Iyad v. State of Israel, CrimA 6659/06, 11 June 2008,
para. 6.
68
See e.g. B’Tselem, ‘Without Trial: Administrative Detention of Palestinians
by Israel and the Incarceration of Unlawful Combatants Law’, Report, October 2009,
at https://www.btselem.org/download/200910_without_trial_eng.pdf (accessed 10
February 2020), 51.
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Supreme Court explicitly referred to Articles 42 and 43 of GCIV when dis-

cussing the legality of the legislation.69 In addition, the ICTY has held that the
body in charge of reviewing internment decisions, in order to meet the require-
ments of Article 43 of GCIV, must ‘have the necessary power to decide finally
on the release of prisoners whose detention could not be considered as justified
for any serious reason’.70 In order to be effective, this needs to be ascertained
through domestic legislation.
In short, all this leads to the conclusion that the existence of domestic leg-
islation implementing Article 43 of GCIV is a condition for the parties to the
conflict to exercise the permission to intern protected civilians present on their
respective territories during an IAC.
3.2.2 Procedure required under Article 78 of GCIV

Most of the remarks made in the preceding section can be applied to occupied
territory: here also, the drafters had intended to leave a certain degree of flexi-
bility to Occupying Powers.
In his Commentary, Pictet states that ‘[i]t is for the Occupying Power to
decide on the procedure to be adopted’.71 But more than being something
left to the discretion of the Occupying Power, prescribing a procedure in
accordance with Article 78 of GCIV is an obligation. The wording of Article
78 is stronger here than it is in Article 43: paragraph 2 explains that ‘intern-
ment shall be made according to a regular procedure to be prescribed by the
Occupying Power’.72 The instruction is also made clear by the imperative
wording of the French version, which states that the procedure ‘devra être fixée
par la Puissance occupante’. The obligation to adopt legislation in order to
specify how the requirements of Article 78 will be implemented at the national
level is quite explicit.
Moreover, the wording of Article 78 is purposely more vague than that of
Article 43, which further calls for implementing legislation. For instance, the
requirement that the review shall be done ‘at least twice yearly’ was deliber-
ately replaced by ‘if possible every six months’,73 and the ‘appropriate court
or administrative board designed by the Detaining Power’ is now simply
‘a competent body set up by the Occupying Power’. This is because the draft-
ers were conscious of the inherent difference between the own territory of the
parties to the conflict and occupied territories. In that sense, they ‘felt that in
69
Ibid., paras 16 and 19.
70
ICTY, The Prosecutor v. Zejnil Delalić et al., Appeals Chamber, Judgment (n
46), para. 329.
71
72
Emphasis added.
73
See Final Record (n 6), Vol. II-B, 440–441.
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view of the disorder which might prevail in occupied territory, it would not be
practicable to lay down an elaborate procedure for internement [sic], similar
to that provided for the territory of a Party to the conflict’, and for that reason
they considered that ‘it would be wiser to content themselves with making
the Occupying Power responsible for establishing a regular and systematic
procedure to suit the circumstances’.74 As a consequence, the recommendation
of Committee III to the Diplomatic Conference was to avoid references to
Articles 41–43 and instead generally to refer to internment in occupied terri-
tory having to be regulated by States ‘in accordance with the provisions of the
present Convention’, a phrase that was eventually adopted in the final text.
Accordingly, the same conclusion as for Article 43 GCIV necessarily holds:
Article 78 was not meant to be – and cannot be – a self-executing provision.
And indeed, the ‘requirement of a “competent body” [included in Article 78
of GC IV] obviously refers to domestic law (or laws enacted in occupied ter-
ritories)’.75 Therefore, domestic implementing legislation is also required for
the internment of protected civilians in occupied territories. We will discuss in
Chapter 9 the consequence this has for the possibility that the strong permis-
sion provided under IHL amounts to a legal basis.76
The constraint now is of a formal nature: how can the Occupying Power
legislate on the occupied territory? First of all, it is obvious that the Occupying
Power cannot make the legislation normally applicable on its own territory
applicable as such in the occupied territory, for that would imply that the
Occupying Power is considering the occupied territory as its own. This would
de facto amount to annexation, which, without being explicitly prohibited by
GCIV,77 is prohibited under international law.78 In addition, Article 43 of the
HR imposes on the Occupying Power an obligation to ‘respec[t], unless abso-
lutely prevented, the laws in force in the country’, which has been interpreted
as preventing the Occupying Power from altering the domestic legal system
of the occupied country.79 Nevertheless, Article 64 of GCIV provides a less
74
Ibid., 773.
75
Marco Sassòli, ‘Legal Basis of Detention and Determination of Detainee Status’,
in Marco Odello and Juan Luca Beruto (eds), Global Violence: Consequences and
Responses (Milan: International Institute of Humanitarian Law/Franco Angeli, 2011),
151.
76
77
See Art. 47 of GCIV.
78
See Rainer Hofmann, ‘Annexation’, in Max Planck Encyclopedia of Public
International Law, February 2013.
79
See e.g. US Military Tribunal at Nuremberg, United States v. United States v.
Alfried Felix Alwyn Krupp von Bohlen und Halbach and eleven others, 17 November
1947 to 30 June 1948 (The United Nations War Crimes Commission, Law Reports of
Trials of War Criminals, Vol. X, 1949, 130–159), 135.
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restrictive wording, and actually permits the Occupying Power to legislate in

certain circumstances:
The Occupying Power may, however, subject the population of the occupied ter-
ritory to provisions which are essential to enable the Occupying Power to fulfil its
obligations under the present Convention, to maintain the orderly government of the
territory, and to ensure the security of the Occupying Power ….80
Although Article 64 primarily covers penal legislation (e.g. setting up tribu-

nals, or enacting penal legislation protecting its own forces), it is submitted that
it concerns other types of legislation more broadly. The fact that the Occupying
Power may in certain circumstances change the local laws is confirmed by the
wording of Article 47 of GCIV, which envisages, without however permitting,
changes ‘introduced, as the result of the occupation of a territory, into the insti-
tutions or government of the [occupied] territory’, insisting that those changes
would not deprive the protected persons of the benefits of the Convention.
And, of course, Article 78 itself imposed on States an obligation to legislate
should they wish to resort to internment. Hence, we should understand IHL as
also granting a strong permission to the Occupying Power – if not an obliga-
tion – to enact legislation applicable in the occupied territory giving effect to
Article 78 of GCIV. Concretely, this would usually be done through an order
from the Occupying Power’s military command.
The fact that domestic implementing legislation is required is further sup-
ported by State practice, which has generally followed the terms of Article 78
of GCIV. The UK Manual, for instance, insists, in reference to internment of
protected civilians in occupied territory, that ‘such action must accord with
procedures prescribed by the occupying power and the requirements of the
Convention’.81 In the West Bank, administrative detention by Israeli forces
is regulated by the Order regarding Security Provisions,82 which implements
Article 78 in Judea and Samaria. The Order actually refers to the wording
contained in Article 78: paragraph 272 states that the ‘military commander
shall not apply authority in accordance with this article unless it is deemed
necessary by him for imperative reasons of security’. In addition, paragraphs
273–283 specify how internment shall be regulated, including the type of
authority deemed competent to order internment, the judicial review procedure
80
See also our discussion on the permissiveness of the law of occupation on this
specific subject, in Chapter 4, Section 3, at page 40.
81
UK, Manual on the Law of Armed Conflict (n 9), para. 11.38.
82
Order regarding Security Provisions [Consolidated Version] (Judea and
Samaria) (No. 1651), 5770-2009, at http://nolegalfrontiers.org/en/military-orders/
mil01/67-security-provisions-chapter9-271-315 (accessed 10 February 2020).
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and its periodicity, and the rules applicable to the right of appeals. Article B of
the same order institutes the possibility of temporary administrative detention;
in that case too, paragraphs 284–294 establish how such temporary internment
shall be regulated. Similarly, in US practice, it is ‘express statutory authoriza-
tion to wage war (normally in the form of a joint resolution) [that] triggers the
authority to preventively detain captured enemy belligerent operatives’.83 In
relation to its operations in Afghanistan (including at the time when these con-
stituted an IAC against the Taliban as the de facto government of Afghanistan),
the United States relied on the 2001 Authorization for Use of Military Force
(AUMF).84 The latter’s language includes an authorization to use appropriate
force, which was interpreted as including an authorization to intern persons.85
In addition, US Army Regulation 190-886 provides guidance for detention
of various categories of persons by US military services, including civilian
internees, which is expressly defined to include persons held for reasons of
security in occupation. Army Regulation 190-8 was adopted by the military
services to implement the protections afforded by the Geneva Conventions,
explicitly including Article 78 of GCIV. While it is supposed to be a policy
document, Army Regulation 190-8 was cited in recent habeas litigation as
‘domestic US law’, which ‘a detainee may invoke … to the extent that the
regulation explicitly establishes a detainee’s entitlement to release from custo-
dy’.87 In that sense, although US practice is that ‘U.S. forces engaged in armed
83
Geoffrey S. Corn, Victor Hansen, Richard B. Jackson, Chris Jenks, Eric Talbot
Jensen and James A. Schoettler, Jr., The Law of Armed Conflict: An Operational
Approach, 2nd ed. (New York: Wolters Kluwer, 2019), 174.
84
Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at
115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September
14, 2001.
85
As previously quoted, the US Supreme Court had to deal with that question in
Hamdi v. Rumsfeld (although we should recognize that Hamdi considered the ques-
tion in the framework of a NIAC). See US, Supreme Court, Hamdi et al. v. Rumsfeld,
Secretary of Defense, et al., 542 U.S. 507 (2004). The Authorization for Use of Military
Force Against Iraq Resolution of 2002 (Pub.L. 107-243, 116 Stat. 1498, enacted
October 16, 2002, H.J.Res. 114) interpreted the use of force to include the authority to
intern, and US Congress made such interpretation more explicit in the National Defense
Authorization Act 2012).
86
US, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other
Detainees, Army Regulation 190-8, Department of the Army (1 October 1997) [AR
190-8].
87
US, District Court for the District of Columbia, Al Warafi v. Obama, 716
F.3d 627, 629 (2013), 4. The counter-argument remains that (beyond the question of
whether AR 190-8 actually is domestic law) the fact that AR 190-8 implements treaties
(Geneva Conventions) and not a specific statute certainly suggests that the Department
of Defense does not believe it needs a statute to implement Art. 78 of GCIV, which is
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conflict … rely on the customary principle of military necessity as the legal

basis to detain captured opposition personnel’,88 the United States still seems
to agree that implementing domestic law is necessary.
The permission to enact legislation giving effect to Article 78 of GCIV is
only valid for situations of occupation, i.e. for situations that meet the defini-
tion of Article 42 of the HR; in other words, when the Occupying Power has
established effective control over the occupied territory to the extent that it is
able to create new legislation and ensure its implementation. But the intern-
ment of civilians is not a practice that only starts once the enemy belligerent
has established its control over the territory of its opponent. To the contrary,
civilians are often arrested and interned during the invasion phase, and during
the beginning of occupation, when control over the territory does not yet allow
in practice the Occupying Power to legislate. This triggers the now-common
question of whether the law of occupation applies to the invasion phase and to
situations where control over the enemy’s territory is not yet entirely secured.
An increasing number of scholars posit that the law of occupation applies as
soon as ‘a party to a conflict is exercising some level of authority over enemy
territory’,89 which includes when ‘invading forces arrest and detain a person
for security reasons’.90 If we follow this position, it would mean that the per-
mission to intern provided by Article 78 of GCIV already applies. Conversely,
absent the application of Article 78 of GCIV, ‘an invading power would not
have an express legal basis to subject protected persons presenting a security
threat to assigned residence or internment’91 – or at least IHL cannot be said to
provide the permission.
Nonetheless, assuming that the law of occupation does apply to the invasion
phase, it is still unrealistic to require that the Occupying Power adopt proper
legislation to implement Article 78 of GCIV already at this stage. A solution
would be that States adopt legislation during peace and at the latest at the
usually what is required in terms of US domestic implementing legislation. We answer

this concern below.
88
Corn et al., The Law of Armed Conflict (n 83), 174–175.
89
Daniel Thürer and Malcolm MacLaren, ‘“Ius Post Bellum” in Iraq: A Challenge
to the Applicability and Relevance of International Humanitarian Law?’, in Klaus
Dicke, Stephan Hobe, Karl-Ulrich Meyn, Anne Peters, Eibe Riedel, Hans-Joachim
Schütz and Christian Tietje (eds), Weltinnenrecht: Liber Amicorum Jost Delbrück
(Berlin: Duncker & Humblot, 2005), 757. See also in general Michael Siegrist,
The Functional Beginning of Belligerent Occupation. eCahiers No. 7 (Geneva: The
Graduate Institute, 2011); Marten Zwanenburg, Michael Bothe and Marco Sassòli, ‘Is
the Law of Occupation Applicable to the Invasion Phase’, International Review of the
Red Cross, Vol. 94, No. 885 (2012).
90
Sassòli, ‘Legal Basis of Detention’ (n 75), 151.
91
Siegrist, Functional Beginning of Belligerent Occupation (n 89), 64.
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beginning of an IAC, which would regulate internment in the event of occupa-

tion. This would ensure that the very first protected civilian interned is already
covered. Such regulation may be adopted by order of the military command
as is the case in formal situations of occupation, but also through an executive
order, administrative regulation, etc. In addition, such regulation must be made
public during peacetime in order to ensure that the armed forces are informed
of the required conduct in cases of internment during the invasion phase. One
example is again the US Army Regulation 190-8, which, as mentioned above,
provides general guidance to the US armed forces about internment of various
categories of persons, including civilians, when they operate abroad. The
clarity and publicity of such regulations then allows national courts to refer
to them when needed, as was the case in Al Warafi v. Obama, which we cited
earlier.92
Our conclusion is therefore that, in cases where one would apply a func-
tional theory of occupation, the permission to intern protected civilians pro-
vided by Article 78 of GCIV already applies; in addition, the permission to
enact legislation to give effect to the procedural guarantees of Article 78 also
applies. Any other conclusion would be either un-protective or unrealistic:
allowing parties to the conflict to only take steps towards the implementation
of the procedural requirements of Article 78 once they have established effec-
tive control over the occupied territory would leave too much room for abuses
before that time arrives. Once again, however, this only works if one accepts
that the law of occupation already applies before the definition of Article 42
of the HR is met. If one follows a strict definition of occupation, then it is no
longer possible to rely on IHL to permit the internment of protected civilians.
This is because IHL only provides two different sets of strong permissions in
relation to protected civilians: either Articles 42/43 of GCIV, which apply only
in the own territory of a belligerent State, or Article 78 of GCIV, which applies
only in occupied territories.
3.3 Treatment and Length of Internment as Part of the Permission
The validity of the permission to intern (in both own and occupied territory)
is dependent upon the respect by the Detaining or Occupying Power of other
IHL provisions protecting internees. We agree with Ryan Goodman and
92
US, District Court for the District of Columbia, Al Warafi v. Obama (n 87). We
could also quote the Lieber Code as another example of internal executive regulation.
See Michael Bothe, ‘The Role of National Law in the Implementation of International
Humanitarian Law’, in Christophe Swinarski (ed.). Studies and Essays in International
Humanitarian Law and Red Cross Principles in Honour of Jean Pictet (Geneva/The
Hague, ICRC/Martinus Nijhoff Publishers, 1984), 304, and footnote 14.
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Derek Jinks that ‘IHL conditions the authority to detain on compliance with
procedural guarantees and humane treatment of detainees’.93 The arguments
exposed in the previous chapter in relation to prisoners of war also apply:
if the detaining authority is unable or unwilling to afford all the protections
envisioned by GCIV to its civilian internees, then it may not intern them. As
part of these protections, the temporal scope of the permission to intern is
highlighted here.
The length of internment shall be considered as part of the permission.
Unlike prisoners of war, civilian internees shall be released ‘as soon as the
reasons which necessitated [their] internment no longer exist’,94 and in any
case ‘as soon as possible after the close of hostilities’.95 In other words, as soon
as the military necessity that called for their internment disappears, so does the
permission, the rationale being ‘that no protected person should be kept … in
an internment camp for a longer time than the security of the Detaining State
demands’.96 As a consequence, as soon as either the security of the Detaining
Power no longer makes it absolutely necessary or the imperative reasons of
security disappear, civilian internees shall be released. The validity of the
permission to intern them indeed terminates at that point.
The temporal scope of application of GCIV further circumscribes not only
the length of internment for persons already interned, but also the moment after
which internment shall no longer be resorted to. As mentioned by Els Debuf,
‘[a]s soon as the Convention ceases to apply, the legal bases for internment
contained therein can no longer be relied upon to deprive a person of his or
her liberty’, with the consequence that ‘no new internment can be ordered on
the basis of articles 42 and 78 after the Convention has ceased to apply’.97 It
is therefore important to understand when GCIV will actually cease to apply.
On the own territory of the parties to the conflict, Article 6, paragraph 2
of GCIV provides that ‘the application of the present Convention shall cease
on the general close of military operations’. This is when the permission to
intern should be understood as terminating. Here, it is interesting to note that
the drafters of GCIV took into consideration the permission to intern when
deciding the scope of application of GCIV. During the Diplomatic Conference,
the drafters discussed the possibility that ‘application should continue for an
additional year’.98 In the accompanying report, they explained that they had
considered the risk of prolonged internment, but concluded that ‘there was
93
Goodman and Jinks, ‘U.S. War Powers’ (n 51), 2659–2661.
94
Art. 132 GCIV.
95
Art. 133 GCIV.
96
97
Debuf, Captured in War (n 38), 336.
98
Final Record (n 6), Vol. II-A, 815.
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no reason … to fear that the extension of application would serve as a pretext

for prolonging internment or assigned residence, since Article 42 provides
that such measures shall be brought to an end as soon as possible after the
conclusion of hostilities’.99 Jean Pictet, in his Commentary on GCIV, never-
theless explains that the one-year time limit was eventually dropped during
the plenary session, precisely because of the risk of restrictive measures being
prolonged beyond what would be necessary:
while the maintenance in force of the Convention would certainly protect foreign
nationals in the territory of the Parties to the conflict, it would at the same time
provide grounds for prolonging any security measures applied to them, such as
assigned residence or internment. But such restrictions of personal liberty are only
justified by the existence of an armed struggle. Viewed from that angle, the solution
adopted was a happy one; it means at any rate that there can be no question after hos-
tilities have ended, of applying restrictive measures of this kind to enemy nationals
who have not been subjected to them before.100
As a consequence, it is clear that the wording of paragraph 2 of Article 6 of

GCIV implies that the permission to intern protected civilians in a belliger-
ent’s own territory disappears after the general close of military operations.101
Therefore, regardless of whether a situation of occupation may continue in
parallel in the enemy territory, the relevant part of GCIV will cease to apply
at that moment, with the effect that persons interned on the basis of Article
42 of GCIV shall be then released, repatriated or re-established, and that no
additional individual may be interned on that basis.
The specific situation of occupation is slightly different. Article 6, para-
graph 3 of GCIV brings to an end the applicability of the Convention once
a year has passed after the general close of military operations:102
In the case of occupied territory, the application of the present Convention

shall cease one year after the general close of military operations; however, the
Occupying Power shall be bound, for the duration of the occupation, to the extent
that such Power exercises the functions of government in such territory, by the
provisions of the following Articles of the present Convention: 1 to 12, 27, 29 to 34,
47, 49, 51, 52, 53, 59, 61 to 77, 143.
99
Ibid.
100
Pictet, Commentary on the Fourth Geneva Convention (n 1), 61–62.
101
Jean Pictet also explains how the expression ‘general close of military opera-
tions’ should be understood. See ibid., 62.
102
Art. 3(b) of API has modified this provision for States party to API. This will be
discussed just after this initial analysis of Art. 6 of GCIV.
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One cannot ignore the absence of reference to Article 78 of GCIV in the list of
articles that continue to apply during the entirety of the occupation. A literal
reading of the provision leads to the conclusion that, starting one year after
the general close of military operations, the Occupying Power no longer has
a permission to intern protected civilians in occupied territory under GCIV.
This conclusion is nevertheless disputed. Some consider that the drafters
should not have included any restriction as long as the occupation lasts, for
‘[t]here is no reason why the protection of the inhabitants of such territories
should be reduced after a period of twelve months’.103 Resistance to the
literal application of Article 6, paragraph 3 could in that sense be based on
humanitarian considerations: the drafters could not have intended to reduce
the protection afforded to protected civilians.104 But the travaux prépara-
toires actually show that the drafters made sure that they took into account
the reality of occupation. In the initial draft of Article 4 (which later became
Article 6 GCIV), no mention had been made of the end of the applicability of
certain provisions of the Convention; it merely provided the general temporal
scope of application. During the discussion within Committee III, the US
representative suggested inserting a distinction between short occupation and
prolonged occupation. In his opinion, while it was obvious that ‘the obligations
imposed by the Convention on an Occupying Power should be applicable to
the period of hostilities and to the period of disorganization following on the
hostilities’, experience shows that after a certain period of time, prolonged
military occupation is ‘characterized by a progressive return of governmental
responsibility to local authorities’. As a consequence, ‘[t]he Occupying Power
should be bound by the obligations of the Convention only during such time as
the institutions of the occupied territory were unable to provide for the needs
of the inhabitants’.105 The representative of Norway equally ‘agreed that, when
an occupation lasted after the termination of hostilities, the responsibilities
of the Occupying Power could not all be maintained indefinitely’, although
he was not sure that ‘a time-limit of one year was the best solution’.106 In the
end, the drafters deemed it ‘logical and judicious to provide for a minimum
period during which the provisions should continue to be enforced, a period
103
Gasser and Dörmann, ‘Protection of the Civilian Population’ (n 34), 281, para.
537.
104
Julia Grignon, L’applicabilité temporelle du droit international humanitaire
(Geneva/Zurich/Basle: Schulthess, 2014), 309.
105
Final Record (n 6), Vol. II-A, 623.
106
Ibid., 624.
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fixed at one year after the general conclusion of military operations’.107 The
Commentary submitted by Committee III to the Diplomatic Conference adds:
Should occupation continue after that date, it appears normal that the Occupying
Power should gradually hand over the various powers it exercises, and the direction
of the various administrative departments, to authorities consisting of nationals of
the Occupied Power. From that time on, the Occupying Power will, of course, no
longer be in a position to undertake all the duties for which it was responsible as
long as it continues to exercise the full prerogatives of the occupied State. A choice
should therefore be made between provisions intended to protect the population of
the occupied territory while occupation continues, and those, on the contrary, which
should cease to apply as soon as the justification for them, namely, the exercise of
powers by the Occupying Power, has ceased to exist.108
This clearly shows that the drafters did not intend to restrict the protection
afforded to the civilian population during occupation. To the contrary, their
intention, at least when it came to detention, was protective, putting an end to
the applicability of measures that were only called for by the principle of mili-
tary necessity. In other words, the provisions of GCIV ‘closely connected with
military operations’,109 including those regarding internment, are necessarily
excluded, for ‘stringent measures against the civilian population will no longer
be justified’.110 At that time, only ‘obligations to ensure the protection of the
inhabitants of the occupied territory from arbitrary action or abuse in the hands
of an enemy power (articles 1–12, 27, 29–34, 47, 49, 53, 59, 61–63, 143)’
and ‘obligations inherent in the continued exercise of government functions
by the Occupying Power (articles 51–52 and 64–77)’111 remain applicable.
All other functions shall from then on be exercised again by the authorities
of the Occupied Power. When it comes to internment, the absence of Article
78 in Article 6, paragraph 3 means that the deprivation of liberty for security
reasons during prolonged occupation will be covered by the domestic law of
the occupied country once a year after the general close of military operations
has passed.112
107
Ibid., 815.
108
Ibid.
109
Pictet, Commentary on the Fourth Geneva Convention (n 1), 63. See also Yves
Sandoz, Christophe Swinarski and Bruno Zimmermann (eds), Commentary on the
Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949
(Dordrecht: ICRC/Martinus Nijhoff Publishers, 1987), 67, para. 152.
110
111
112
As Art. 64 of GCIV remains applicable after the one-year limit, however, the
Occupying Power could potentially modify the existing laws of the occupied terri-
tory in order to include internment for imperative reasons of security on the basis of
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The fact that the limitation placed on the applicability of GCIV in prolonged
occupation results from a protective ambition is crucial. If we consider that the
permission to intern that GCIV gives to parties to the conflict is a restriction of
the rights of protected civilians, the consequence is that it is only logical that
Article 78 was excluded from the provisions mentioned in Article 6, paragraph
3. The intention can then be seen as being to ensure that ‘no person can be
interned in the occupied territory on the basis of international humanitarian
law after that time’.113
This being said, we should note that the validity of Article 6 paragraph 3 was
modified by the adoption of Article 3(b) in API. The latter states that
the application of the Conventions and of this Protocol shall cease, in the territory
of Parties to the conflict, on the general close of military operations and, in case of
occupied territories, on the termination of the occupation, except, in either circum-
stance, for those persons whose final release, repatriation or re-establishment takes
place thereafter.
Thus, when API is applicable, it may be argued that the permission to intern
protected civilians in occupied territory will remain valid until the termination
of occupation.
When API is not applicable, however, the permission will end once a year
after the general close of military operations has passed: we do not believe
that Article 3(b) of API has achieved a customary nature that would modify
the conventional rule in Article 6 of GCIV, nor that the subsequent practice
of States not party to API has altered Article 6 of GCIV in a manner similar
to what is provided by Article 3(b) of API. For instance, the ICJ’s advisory
opinion in the Wall case implicitly considered that the applicability of Article
6, paragraph 3 was not displaced by the existence of a customary rule the
content of which would be similar to that of Article 3(b) API. The Court indeed
stated that ‘[s]ince the military operations leading to the occupation of the
West Bank in 1967 ended a long time ago, only those Articles of the Fourth
GCIV. However, as Art. 64 relates to penal laws (and internment is precisely short of
criminal prosecution), even this possibility is debatable. According to Els Debuf, for
instance, the normal administration of justice, which ‘includes detention on criminal
charges and imprisonment upon conviction’ and justifies the continued application of
Art. 64 of GCIV, ‘does not however include security internment for reasons of military
security’. As she adds, ‘[d]eprivation of liberty for reasons of military necessity is con-
sidered legitimate in international humanitarian law only in as far as hostilities and mil-
itary operations are ongoing; it is not legitimate as a measure of mere law enforcement
where such hostilities or military operations have come to an end, and even less so one
year later.’ See Debuf, Captured in War (n 38), 418.
113
Ibid.
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Geneva Convention referred to in Article 6, paragraph 3, remain applicable in

that occupied territory’.114 Furthermore, Els Debuf argues that
regardless of whether article 3(b) AP I has become customary or not, … it is impor-

tant to understand that its purpose in expanding the application ratione temporis of
the Convention beyond what was provided for by the Fourth Geneva Convention
was protective in nature …. Therefore, in light of the general principles underlying
internment on the basis of GC IV, especially those regarding exceptionality and
necessity, it is submitted that the legal basis to intern protected persons in occupied
territory for reasons of military necessity (article 78 GC IV) will only be a valid
legal basis to intern such persons for maximum one year after military operations
have come to a general close.115
To support her argument, Els Debuf cites the conclusion of a UK Court of

Appeal (England and Wales)116 in 2006, which estimated that ‘the concept of
internment for imperative reasons of security … is available in the ordinary
way to a belligerent power for both during a war and for up to a year during any
period of occupation that follows the end of the war’.117 Under a strict reading,
however, and regardless of how desirable Els Debuf’s suggestion may be from
a protective point of view, we cannot ignore that the one-year limit after the
general close of military operations no longer applies for States party to API.
Finally, we should also mention paragraph 4 of Article 6 GCIV, which
applies to both own and occupied territories and states that ‘protected persons
whose release, repatriation or re-establishment may take place after such
dates shall meanwhile continue to benefit by the present Convention’. The
article shall not be interpreted as permitting the continued internment of
persons already interned. The objective is clearly to ensure the protection of
such persons in situations where, as will often be the case, ‘the Convention
as a whole ceases to apply … before the protected persons have been able to
resume a normal existence, especially if they have to be repatriated or assisted
to resettle’.118 For such persons, it may be argued that ‘article 78 GC IV
remains a valid legal basis to intern only for as long as is necessary to organize
the release and resettlement or repatriation of the internees in accordance with
114
ICJ, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion, 9 July 2004, para. 125.
115
116
The term UK/British Court of Appeal is used for ease of reference throughout
and refers to the Court of Appeal of England and Wales.
117
UK, Court of Appeal (Civil Division), R (on the application of Hilal Abdul-Razzaq
Ali Al-Jedda) v. Secretary of State for Defence [2006] EWCA Civ 327, 29 March 2006,
para. 85.
118
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articles 133 and 134 GC IV’.119 In other words, the permission to intern them
has legally disappeared except precisely for the purpose of terminating such
internment in a correct and humane manner, in compliance with the protective
obligations of GCIV.
As a conclusion, we argue that the permission to intern protected civilians
during IAC disappears in accordance with the temporal scope of application
of GCIV. More precisely, in the territory of the parties to the conflict, the per-
mission to intern will cease to exist as soon as the military operations generally
come to a close, and in occupied territory, starting one year after the general
close of military operations in situations where API is not applicable, or when
API is applicable, on the termination of occupation. In all situations, the under-
lying justification for the end of the permission to intern lies in the fact that the
military necessity of resorting to internment has disappeared. Accordingly, not
only does that mean that no additional individual shall be interned on the basis
of Articles 41–42 and 78 of GCIV after such respective moments, but also that
the permission to retain in internment those already so confined is terminated.
More generally, as we conclude the chapters related to internment in IAC,
it is useful to recall what we mentioned in the Introduction to this book: inter-
national law often serves to create competences when States act outside their
own borders. In particular when ‘military operations by one or the other State
take place on the territory of a foreign State and with respect to persons who
are nationals of the foreign State’, ‘only explicit provisions of international
law can provide the State which is exerting military force on the territory of
another State during an IAC with the legal authority to detain’.120 When it
comes to internment, ‘if rules to detain persons in IACs did not exist in inter-
national law, detention on foreign territory would be unlawful as States are
prohibited to take such actions under general international law’.121
119
Debuf, Captured in War (n 38), 417, footnote 1389.
120
Manuel Brunner, ‘Detention for Security Reasons by the Armed Forces of
a State in Situations of Non-International Armed Conflict: the Quest for a Legal
Basis’, in Björnstjern Baade, Linus Mührel and Anton O. Petrov (eds), International
Humanitarian Law in Areas of Limited Statehood: Adaptable and Legitimate or Rigid
and Unreasonable? (Baden-Baden: Nomos 2018), 91.
121
Ibid.
Anne Quintin - 9781839107443


The Authority To Intern Protected Civilians in International Armed Conflict

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The Authority To Intern Protected Civilians in International Armed Conflict

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7.

The authority to intern protected

Anne Quintin - 9781839107443

1. A STRONG PERMISSION TO INTERN

1.1 Permission to Intern Protected Civilians on the Territory of

It is submitted that Articles 41 and 42 provide a strong permission to intern

Anne Quintin - 9781839107443

In turn, Article 42, paragraph 1, provides that ‘the internment or placing in

Anne Quintin - 9781839107443

Anne Quintin - 9781839107443

severe form of non-penal related restraint permitted under GC IV.’12 Also in

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s’opposer au départ de personnes protégées étrangères au nom de ses “intérêts

1.2 Permission to Intern Civilians on Occupied Territory

In occupied territories, Article 78 of GCIV provides a strong permission

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we find instead are either comparisons or references to Article 42 of GCIV,

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only as an exception’.27 The previous paragraph on internment in a belligerent

1.3 Permission Confirmed by the Existence of Exceptions in GCIV

The internment of protected persons during IAC should remain an exception,

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Article 27 of GCIV explicitly permits restrictions: ‘the Parties to the con-

Anne Quintin - 9781839107443

2. NO PERMISSION TO INTERN NON-PROTECTED

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a different angle. The restriction of possible deprivations of liberty by IHRL

3. VALIDITY OF THE PERMISSION

It is submitted that the permission to intern protected civilians in IAC is only

3.1 Collective Versus Individual: a Threat-based Permission

While Article 21 of GCIII pointed to the collective nature of the permission to

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An individual assessment of the threat is required in order for the internment

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and discarded the reasoning of the Eritrea-Ethiopia Claims Commission as

3.2 Permission Based on the Existence of an Adequate Procedure

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It is sometimes asked why IHL provides procedural safeguards to civilians interned

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3.2.1 Procedure required under Article 43 of GCIV

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with the requirements under GCIV, complementing domestic legislation is

gives the state authorities power to detain ‘unlawful combatants’ as defined in

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Supreme Court explicitly referred to Articles 42 and 43 of GCIV when dis-

3.2.2 Procedure required under Article 78 of GCIV

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Anne Quintin - 9781839107443

restrictive wording, and actually permits the Occupying Power to legislate in

Although Article 64 primarily covers penal legislation (e.g. setting up tribu-

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Anne Quintin - 9781839107443

conflict … rely on the customary principle of military necessity as the legal

usually what is required in terms of US domestic implementing legislation. We answer

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beginning of an IAC, which would regulate internment in the event of occupa-

3.3 Treatment and Length of Internment as Part of the Permission

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Anne Quintin - 9781839107443

no reason … to fear that the extension of application would serve as a pretext

As a consequence, it is clear that the wording of paragraph 2 of Article 6 of

In the case of occupied territory, the application of the present Convention