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The Copenhagen Process. Some Reflections Concerning Soft Law

Bruce ‘Ossie’ Oswald*

Introduction

On 19 October 2012, the ‘Copenhagen Process on the Handling of Detainees in International Military Operations’ (‘The Copenhagen Process’) was concluded with seventeen states welcoming the Copenhagen Process Principles and Guidelines (‘Principles and Guidelines’). The objective of the Process was to reach consensus among states and relevant international organizations on the international legal regimes applicable to the taking and handling of detainees in military operations; and for states to agree upon generally acceptable principles, rules, and standards for the treatment of detainees. The Principles and Guidelines apply to detention of individuals deprived of their liberty for reasons related to an international military operation (including non-international armed conflicts and peace operations, but excluding international armed conflict and law enforcement operations). They do not seek to create new legal obligations but to guide the implementation of existing obligations by facilitating a common approach to address the humane treatment of detainees while ensuring the effectiveness of international military operations. The Principles and Guidelines are accompanied by a commentary, which is the sole responsibility of the Chairman of the Process. In other words, the commentary is the Chairman’s interpretation concerning the meaning, and in some cases the applicability, of the substantive provisions found in the Principles and Guidelines.

The primary purpose of this chapter is to use the Copenhagen Process and the ensuing Principles and Guidelines to show how soft law was and is developed in the context of one aspect of military operations—detention. First, however, a few words about the background to the Copenhagen Process and the evolution of the Principles and Guidelines are necessary.1

  • * Bruce ‘Ossie’ Oswald is grateful to Ms Skye Chapman for her research assistance, and Ms Natasha Robbins, Ms Zoe Hough, and Ms Sophie Parr for their editing. He is also grateful to Professor Gerry Simpson and Ambassador Thomas Winkler for their comments in relation to earlier versions of this chapter. The views expressed in this chapter do not necessarily reflect those of any government or institution.
  • 1 For more detail of the Copenhagen Process and the Principles and Guidelines, see e.g.: B. Oswald and T. Winkler, ‘The Copenhagen Process: Principles and Guidelines on the Handling of Detainees in International Military Operations’, Nordic Journal of International Law vol. 83 (2014): 128—67.

Stephanie Lagoutte, Thomas Gammeltoft-Hansen, and John Cerone. © Stephanie Lagoutte, Thomas Gammeltoft- Hansen, and John Cerone 2016. Published 2016 by Oxford University Press.

 
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