By all means necessary: A look at the reliance on United Nations Security Council resolutions as a basis for internment in non-international armed conflicts
Author: Hillary Muchiri Kiboro
Affiliations: LLM in Public International Law (University of Nairobi), LLB (University of Nairobi) Postgraduate Diploma (Kenya School of Law)
Source: African Yearbook on International Humanitarian Law, 2019, p. 25 – 48
This article analyses the practice of using United Nations Security Council (UNSC) resolutions as the legal basis of internment in noninternational armed conflicts (NIACs). The article commences with a brief definition of NIACs juxtaposed with international armed conflicts (IACs) and demonstrates the better-developed internment regime in IACs. In particular, the analysis proceeds on the basis of some fundamental legal questions appertaining to the deprivation of liberty such as who can be deprived of liberty; when and for how long; under what conditions; and pursuant to what process. The article notes that treaty international humanitarian law (IHL) applicable to IACs answers these questions well; however, this is not the case concerning treaty IHL applicable to NIACs. The article further explores another critical question, namely whether customary IHL provides the requisite legal basis for interning individuals in connection with NIACs. It should, however, be noted that international consensus on this issue is lacking. The latter relates not to the right to intern as such, but rather to the scope of this right and the conditions of its exercise. Consequently, practice to find a legal basis for internment in other legal regimes such as domestic law and UNSC resolutions emerged. This practice has found judicial affirmation in a number of decisions from domestic courts and regional human rights courts. For instance, in the case of Abd Ali Hameed Al-Waheed v Ministry of Defence, the Supreme Court of the United Kingdom was convinced that UNSC resolutions provided sufficient authority for the military forces to intern persons when it was necessary for the accomplishment of the forces’ mission. Here, the two relevant UNSC resolutions granted the power to multinational forces in Iraq to use ‘all necessary measures’ to accomplish their mission. UNSC Resolution 1546 on Iraq had an annexed a letter by the United States Secretary of State, authorising internment.