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“While it is possible to draft 

principles and guidelines without 

engaging with armed groups, it is 

unlikely that the provisions would 

be sufficiently nuanced to reflect 

the specific needs or resources 

of such groups. Furthermore, 

engaging with armed groups 

might also help determine how 

best to monitor and enforce 

principles and standards that are 

adopted by such group.”

July 3, 2013

Detention Standards 

and Non-State Armed Groups

Summary

•	 All armed groups capture or detain individualsin a variety ofsituations, butitis unclear whatlegal

obligations non-state armed groups have when dealing with detainees.

•	 The international community should consider: (1)studying the extentto which armed non-state

actors are able to adhere to extantinternational humanitarian law and international human rights

law; (2) and develop generic detention principles and guidelinesthat are specifically relevantfor

non-state armed groups. 

Bruce ‘Ossie’ Oswald

E-mail: b.oswald@unimelb.edu.au

PEACEBRIEF153

Introduction

Armed groups1 engaged in armed conflictsfrequently detain individuals.When such groups capture or

detain,two basic questions arise: (1) which international norms and laws, if any, apply to armed groups

regarding detention?And (2) having captured or detained,to which standards oftreatment must

non-state armed groups adhere? From there, however, a deeper question emerges of how to ensure

thatthose detained by non-state armed groups will be treated according to a basic international code

of conduct, even ifthe most minimalstandards.

Applicable Laws

Broadly,there are twolegalregimesthat apply toarmedgroups:thedomestic lawofthe country inwhich

the armedgroupoperates, andinternational law. Insome cases,pursuanttothe applicationof extraterritorial lawssuchasthosedealingwithterrorism,themunicipal lawsofotherstatesmay alsoapply to

armedgroups fightinginother countries.

Inrelationtointernational law,there are twobroadframeworksthat apply: internationalhumanitarian

law(IHL),whichappliesduringarmedconflict, andinternational criminal law(ICL),whichgenerally applies

towar crimes andcrimes againsthumanity. Itis acceptedthatnoexistinginternational lawregimepermits

orjustifiesnon-state actorstakingdetainees. IHLdoesnotjustifydetentionby armednon-state actorsbut

does,toa limitedextent,regulate suchdetention.The applicabilityofIHL toarmedgroupsisbasedon

theprincipleofthe equalityofbelligerents. Itremains controversial,however,whetherIHL regulatesthe

behaviorof armednon-state actorsinsituationswhere they arenotpartiestoa conflict.Thequestionof

whether anarmedgroupis aparty toa conflictoftenrestsonfactorssuchastheirleveloforganizationand

the intensityofthehostilities. For example,there is considerable controversy astowhetherIHL appliesto

allthe Syrianarmedoppositiongroupsbecause someofthemhave littleornocommandstructure.There

issomedebate astowhetherinternationalhumanrightslaw(IHRL) appliestoarmednon-state actorsin

situationswhere there isnotreatyor customary lawobligationsforsuchactors.
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Detention Standards and Non-State Armed Groups

page 2 • PB 153 • July 3, 2013

In some cases, armed groups create their own lawsto justify their actions and to hold others

and themselves accountable. A recent example isthe Taliban’sso-called“shadow justice system”in

Afghanistan, which issaid to be based on a mixture of tribal and religious norms.Other rebel groups

such asthe Nagasin north-east India and the Communist Party of Nepal – Maoists have also developed their own“legislation”and legal procedures. Such cases of rebel groups creating their own laws

are generally not recognized as valid exercises of law-making by the international community.

The Treatment of Detainees

One major concern in all cases of detention – by state and non-state actors alike — is ensuring that

adequate standards of humane treatment are provided to the detainee. Humane treatment, according to international law, includesthe prohibition of torture and violations of personal dignity,

as well as caring for the wounded and sick. Regarding armed non-state actors, there are those

who argue that they are not bound by IHRL treaty regimesthat they have notsigned. For example,

in relation to the Syrian rebels, the U.N.’sInternational Commission of Inquiry on the Syrian Arab

Republic determined that non-state actors cannot become partiesto international human rights

treaties. On the other hand, others believe that the application of IHL and IHRL to rebel groups

must be founded on a“sliding scale,”which acknowledgesthe limited meansthatsuch groups

might have in applying the higherstandardsrequired ofstates. For example, what point isthere in

arguing that every detainee must be given a right to appear before a judge if armed groups do not

have the resourcesto set up a judicialsystem? Adherents also point to examplesin international

law where the“sliding scale”approach isrecognized as a valid basis of dealing with disadvantaged

parties. There are others who argue that to introduce a“sliding scale”of application would undermine the law because it would form a basis of relativism that must not exist if the legalsystem isto

effectively protect detainees.2

Notwithstanding the debates about whetherIHL and IHRL apply to armed groups, or whether armed

groups have a margin of appreciation in deciding the extentto which they comply with those laws,

the international community increasingly expects armed groupsto adhere to both legalregimes.The

application of criminal law by internationaltribunals demonstratesthat non-state actors may be found

guilty of committing war crimes or crimes against humanity.The president oftheU.N. Security Council

in a statement on February 12, 2013 stated thatthe“Councilreiteratesits demand that all partiesto

a conflict comply strictly with their obligations underinternational humanitarian, human rights and

refugee law.”3Further, although the International Commission of Inquiry on the SyrianArab Republic

acknowledgesthat non-state actors cannotformally become partiesto international human rightstreaties, it has also expressed thatsuch groups mustrespectfundamentalrights of personsthat are found in

customary international law in areas where they exercise de facto control. 

Approaches Taken by Armed Groups

Without adopting a definitive understanding of how IHL and IHRL apply to armed groups,such

groups have a number of possible approachesto adhere to the law. Common Article 3 to the four

Geneva Conventions permits armed groupsto enter into special agreements concerning such

matters asthe treatment of detainees, access by international organisationsto detainees, and the

rights of detainees. Armed groups also have the option of making unilateralstatementsthat they

will adhere to IHL and IHRL rules concerning detention; or they will issue codes of conduct to their

membersstipulating rules, principles and standards of detention. There are a number of examples

of the codes of conduct being issued by armed groups,such asthose issued by the National

Liberation Army (ELN) in Colombia, the Revolutionary United Front (RUF) in Sierra Leone, and de

facto authoritiessuch asthe National Transition Council (NTC) in Libya.
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Detention Standards and Non-State Armed Groups

page 3 • PB 153 • July 3, 2013

Onecriticismofsuchapproachesisthattheyhavebeenadhocandlackspecificityconcerningtreatment

standards.Whileadhocapproachesofferadegreeofflexibilitytoarmednon-stateactors,theproblemis

thatsuchstandardslackuniformityandmightlackgeneralinternational communityacceptance.

Establishing Principles and Guidelines

In the interest of better protecting the rights of detainees,the international community should develop

a document with principles and guidelines as a legal basisfor armed non-state actorsto take detainees. 

Such a document could note the minimum standards of detention and could also consider how to

raise standards by taking into account general principles of IHL and IHRL, and the resourcesthat armed

groups mightreasonably be expected to call upon.

Somestatesmightobjecttothedevelopmentofaminimumprinciplesandguidelinesdocumentbecause

itcouldgivethesegroupsaleveloflegitimacy.Whiletheissueoflegitimacyisoffundamentalimportance,it

shouldbeweighedagainsttheneedtodevelopdetentiontreatmentobligationsandstandardsthatpermit

greatercertaintyforboththosedetainingandthosedetainedthatbasicstandardswillberespected.Thisis

particularlyimportantgiventhatthereareconcernsthatsomeofthecurrentdetentiontreatmentstandards

cannotbeappliedtonon-stateactors,becausetheydonothavethemeanstomeetthosestandards.

There are also pragmatic issuesto consider.Given that developing detention principles and guidelinesrequires engaging with armed groups, it might be difficultto achieve thisin circumstances when

contact with such groupsis considered to violate a state law orinternational norm.While itis possible

to draft principles and guidelines without engaging with armed groups, itis unlikely thatthe provisions

would be sufficiently nuanced to reflectthe needs orresources ofsuch groups. Furthermore, engaging with armed groups might also help determine how bestto monitor and enforce principles and

standardsthat are adopted by such group.

Conclusion

The reality isthat armed groups detain individuals.While the debates concerning the potential

lawfulness ofthis practice remain relevant,the more important and pragmatic issue isthe standards of

treatment, if any,that armed actors are required or expected to provide to detainees.The international

community should consider: (1)studying the extentto which armed non-state actors are able to

adhere to IHL and where IHRL principles,rules and standards could apply; and (2) engaging with armed

groupsto consider whetherthere is any value in clarifying existing IHL and IHRL norms by developing

generic detention principles and guidelinesthatreflectsthe particular circumstances of armed groups.

Notes

1.	 Thetermarmedgroupasusedherereferstocivilianswhoarebotharmedandorganized,andhave

thecapacitytocarryoutsustainedviolencewithinastatesoastofurtherapolitical,religiousorcultural

agenda.Theyactoutsideastate’sformalmilitaryandpolicestructures.Armedgroupsthereforemight

includepro-governmentmilitia, civildefensegroups(sometimesalsoreferredtoasvillageself-defense

forces),andarmedoppositiongroups.Thetermsmilitias,armednon-stateactors,andparamilitaryare

oftenusedtorefertothecategoryofarmedgroupsthatisthefocusofthispaper.

2.	 ForamoredetaileddiscussionconcerningthedifferentapproachesseeMarcoSassoliandYuvalShany,

‘Debate:Shouldtheobligationsofstatesandarmedgroupsunderinternationalhumanitarianlawreally

beequal’93(882)InternationalReviewoftheRedCross(2011),pp.425-436.

3.	 U.N. Doc. SC 10913, available at http://www.un.org/News/Press/docs/2013/sc10913.doc.htm

(last accessed 18 May 2013).

About This Brief

This Peace Brief, based on the 

author’s research on armed groups 

in Afghanistan, the Democratic 

Republic of the Congo, and other 

conflict zones, considers some 

issues relevant to the development 

of principles and guidelines governing the treatment of detainees 

taken by armed groups. Bruce 

‘Ossie’ Oswald is an associate 

professor of law at Melbourne Law 

School and a Jennings Randolph 

senior fellow (2012-2013). Ossie’s 

interest in armed groups stems 

from his military service in places 

such as Rwanda, East Timor, Iraq, 

and Afghanistan. His academic 

research is focused on international humanitarian law, international 

human rights law, and post-conflict 

state-building. Ossie would like 

to thank Pamela Aall, Vivienne 

O’Connor and Beth Wellington 

for their very helpful comments on 

earlier drafts of this Brief. Ossie is 

also grateful to Maria Glenna for 

her research assistance.