Transferring Wartime Detainees and a State's Responsibility to Prevent Torture
American University National Security Law Brief, Vol. 2, Issue 2
25 Pages Posted: 10 Apr 2012 Last revised: 4 Mar 2013
Date Written: April 1, 2012
States forcibly transfer detainees to the custody and control of other States for a variety of reasons. This Article assesses the obligations that States incur under international law if they seek to make such a transfer during times of war. As this Article demonstrates, the law of armed conflict (LOAC), which regulates State action during war, provides broad, substantive transfer protections, but those protections have a relatively limited scope of application in international armed conflicts; explicit protections in the law of non-international armed conflicts (NIAC) are almost non-existent. The reasons for these protection gaps are largely due to several outdated and State-centric considerations that shaped the LOAC. Remedying these protection gaps would therefore benefit from either 1) the codification of new international wartime law and/or 2) a stronger interpretation og the LOAC that applies conjunctively with international human rights law.
To explore these options, this Article begins by analyzing detainee transfer protections under the LOAC. Part III discusses detainee transfer protections under international human rights law and assesses whether those protections are applicable in armed conflict. Finally, Part IV evaluates diplomatic assurances and post-transfer monitoring systems, both of which, according to some States, mitigate the risk of post-transfer torture and fulfill States’ transfer obligations under international law.
Keywords: repatriation, detention, detainees, law of armed conflict, non-refoulement, torture, Geneva Conventions, diplomatic assurances
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