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The Status of the Principles and Guidelines

Starting with the preamble, it is clear that the Principles and Guidelines do not seek ‘to create new legal obligations or authorizations under international law’.52 The focus of participants during the final meeting was to ‘develop principles to guide the implementation of the existing obligations with respect to detention in military operations; by facilitating a common approach ... [that] contribute^] to ensuring the humane treatment of detainees and the effectiveness of international operations’^ Further, as reinforced both in the Preamble and paragraph 16: the Principles and Guidelines ‘do not affect the applicability of international law to military operations conducted by States, or international organisations; the obligations of their personnel to respect such law, or the applicability of international and national law to non-state actors’.54

So, if the Principles and Guidelines do not create new obligations or authorizations, nor change existing legal obligations with respect to detention, nor affect the applicability of international law either on the international or national plane— what normative value do they have? Might they be considered ‘soft law’?

While this is not the place to engage in a lengthy discussion about soft law and the various controversies that surround its existence and application, 55 it [1]

is nonetheless appropriate to make some comments concerning its relevance in understanding and applying the Principles and Guidelines. First, there is a general consensus that international law is either binding or non-binding. Binding law, or ‘rules of international law’, are found in treaties and custom. Second, if norms are not binding, then what are they? Some refer to them as soft law and as such the term has a range of meanings, including a convenient way of describing a variety of non-legally binding instruments, interpretative guidance, codes of conduct, and ‘non-treaty agreements between states or between states and other entities that lack capacity to conclude treaties’^6 Third, ‘soft law mechanisms are broadly those that do not involve formal legal obligations or legal processes, but nevertheless represent a shared understanding or consensus about procedure or behaviour among the parties’^7 One must conclude therefore that because states participating in the final Copenhagen conference stated that the Principles and Guidelines were not seeking ‘to create new legal obligations or authorizations under international law58 ... [and that the Principles and Guidelines] do not affect the applicability of international law’,59 they are non-binding and therefore fit within the general understanding of being soft law.60 That view is further reinforced by the fact that the Principles and Guidelines were ‘welcomed’ by states—thus using weaker language—rather than, for example, using stronger language such as ‘adopted’ or ‘ratified’ by states. In view of this it is perhaps most appropriate to consider the Principles and Guidelines to be soft law in the sense that they are contained in a ‘written international instrument which ... [is] non-binding at the time of adoption, but create[s] particular expectations of future behaviour and ... [is] likely to have political [or diplomatic] ... effect’^1 Finally, it is important to point out that for some legal advisers working for states in the armed forces or government departments the Principles and Guidelines would be simply described in terms of being a policy and therefore there would be no debate as to whether the document and its contents are soft law.62 vol. 67 (1998): 381—91; J. Klabbers, ‘Reflections on Soft International Law in a Privatized World’, Finnish Yearbook of International Law vol. 16 (2005): 1—15; C. Ku and P. F Diehl, ‘Filling in the Gaps: Extrasystemic Mechanisms for Addressing Imbalances between the International Legal Operating System and the Normative System’, Global Governance vol. 12 (2006): 161—83; T. Meyer, ‘Soft Law as Delegation’, Fordham International Law Journal vol. 32 (2008): 888—942; G. C. Shaffer and M. A. Pollack, ‘Hard Versus Soft Law in International Security’, Boston College Law RLeview vol. 52 (2001): 1147—242; and P. Weil, ‘Towards Relative Normativity in International Law?’, American Journal of International Law vol. 77 (1983): 413—42.

  • 56 Boyle and Chinkin (2007): 212—13. 57 Ku and Diehl (2006): 177.
  • 58 Principles and Guidelines, Preamble para. II.
  • 59 Principles and Guidelines, Preamble XI.
  • 60 For a more detailed discussion about the effect of combining binding and non-binding norms, see e.g.: Weil (1983): 413—42.
  • 61 Villeneuve in this volume.
  • 62 That is not to say that legal advisers working for armed forces or governments are acting in bad faith if they refer to the Principles and Guidelines as policy but rather to recognize that both policy and law would be considered systematically in the sense of being properly considered and openly dealt with in the decision-making process. See e.g.: R. Higgins, Problems and Processes: International Law and How We Use It (Oxford: Oxford University Press, 1994): 5.

For such lawyers the issue is not that the norms are binding, it is the fact that the instrument in which the norms are contained is non-binding.

Accepting that the Principles and Guidelines might be described as soft law, they are instructive as a case study in two ways: (1) the process used by states to develop soft law; and (2) as an example of developing substantive norms to engage with a serious concern for states—dealing with detainees.

As a case study in how states develop soft law the Principles and Guidelines are useful for four reasons. First, the Principles and Guidelines were ‘welcomed’ via a process that was primarily state led in the sense that they were not negotiated with the broader international non-government community. That fact is noteworthy because it raises the issue of whether developing soft law must have wide international community involvement to enhance the legitimacy of both the process and the values that a particular set of soft law norms seek to reflect. As stated, IHL continues to develop through a variety of means and methods. The government of Denmark’s focus on limiting the formal Copenhagen Process meetings to invited states and international organizations was a calculated decision to ensure that participants could be open and robust about their experiences in the taking and handling of detainees during military operations, and that they would be willing to think and share their concerns about the legal, policy, diplomatic, and military issues surrounding military detention operations. States were able to discuss in a relatively open manner their practical experiences derived from military operations in such places as Afghanistan and Iraq; the lessons they learned in relation to matters such as allocating resources to handling detainees; and the political and legal risks of getting detention ‘wrong’. Inviting international organizations such as the UN, the AU, and the ICRC as observers added to the sense of learning from experiences in other contexts, such as UN peace operations or military detentions operations conducted in a variety of contexts. While NGOs were not invited to any of the formal seminars or conferences, they were updated about developments during the Process by the Danish Ministry of Foreign Affairs.[2]

It might be concluded that the decision to have a process that was both state led and state focused was appropriate for dealing with a serious matter—detention on military operations—because it provided a focal point for states to determine legal and behavioural norms. The chance of voluntary compliance therefore increases because those applying the norms negotiated them. Allowing states to robustly engage in addressing challenges and tensions arising from dealing with detainees also meant that the final version of the Principles and Guidelines was not divorced from state behaviour or interests. Furthermore, a process that focuses on the will of states has an added benefit in creating norms because it reinforces the margins of their opinion and practice. The Process therefore should be seen as a means by which a state-led and state-focused process represents law generating in an area of law and practice in which state interests are ultimately very high.

Second, it is worth considering the extent to which the legal matter that is subject to soft law development affects the approach states adopt. Considering the fact that taking and handling detainees is a legitimate aspect of military operations it is important to ask why detention principles and guidelines for non-international armed conflicts and peace operations were not settled by states much earlier. There is no doubt that some of the impetus for engaging in the Copenhagen Process arose from the fact that a number of states who were participating in the Copenhagen Process had dealt with, or were dealing with, litigation arising from their detention operations.[3] [4] It is also likely that after more than a decade of armed conflict in Afghanistan and Iraq the practices of states in taking and handling detainees had evolved to a point where participants felt the time was ripe to articulate a ‘common approach that ... should contribute to ensuring the humane treatment of detainees and the effectiveness of international military operations’^ The importance of the practice of states in dealing with detainees was also reflected by the statement in the preamble: ‘[p] articipants were ... inspired by the good practices that States and organisations have developed in international military operations.’66 A five-year process might therefore have benefited states by giving them ample time to understand the scope of the litigation issues, the extent of their practices, and the lessons learned. In other words, the Process timeline adopted proved to be appropriate considering that the subject of detention in military operations turned out to be a highly contentious matter for some states.

Third, is the extent to which the Process permitted states to engage with developing a better understanding of the interaction between IHL and IHRL in identifying norms for dealing with detainees. From the very start of the Process in 2007 there were debates concerning the application of both IHL and IHRL to detention operations. The Process facilitated those debates by permitting participants to, among other things, exchange views through table top exercises where issues relating to detention were ‘war gamed’, and provide comments on the approaches taken in the non-papers and draft versions of the Principles and Guidelines circulated by the Chair of the Process. The issue throughout was not that IHL or IHRL did not apply, but determining what the precise relationship between IHL and IHRL in the context of detention is. Notwithstanding the fact that participants recognized the ‘challenges of agreeing upon a precise description of the interaction between international human rights law and international humanitarian law’[5] the settled Principles and Guidelines took both areas of law into account. For example, the provisions concerning non-discrimination,6® the requirement to release/9 and the need to promptly inform7° are found in both IHL and IHRL. The Process did facilitate a compromise at the last conference—that is to restrict the final document to applying only to non-international armed conflicts and peace operations and not law enforcement operations such as counter-piracy. This compromise was precisely because of the belief of participants and civil society that law enforcement operations should be dominated by IHRL. The fact that the Process facilitated both broad and narrow discussions concerning the application of IHL and IHRL principles, rules, and standards concerning detention in military operations might therefore be seen as benefiting the overall understanding of the role that IHL and IHRL have in regard to detention in military operations.

Fourth, there is the issue of the Danish Ministry of Foreign Affairs acting as a norm negotiator or incubator in developing the Principles and Guidelines. By leading and hosting the Copenhagen Process, developing the drafts of the Principles and Guidelines, and taking sole responsibility for the commentary that accompanied the Principles and Guidelines the Ministry of Foreign Affairs clearly played an important role in negotiating and developing both the process and substance of the Process and Principles and Guidelines. It is necessary to distinguish the Ministry’s role as a norm negotiator from that of a normative intermediary. The Ministry did not play a normative intermediary role in the sense of ‘seeking to promote observance of a norm, ... [where the issue of] a particular compliance shortcoming of a state ... [was at issue so as to] induce compliance through a hands on process of communication and persuasion with relevant decision makers’/1

From a substantive ‘soft law’ perspective there are six observations that might be made concerning the content of the Principles and Guidelines. First, substantively the Principles and Guidelines document is not law. While it is true that it has a number of hard law or binding norms (e.g. the prohibition against torture)/2 it does not purport to alter the treaty or customary law obligations that states have. Even where the Principles and Guidelines use norm binding words such as ‘will’ or ‘must’ the emphasis in the Preamble and Principle 16 on the fact that the document does not affect the applicability of international law reinforces the soft law nature of the document. Thus it is important to distinguish, in the context of the Principles and Guidelines, between the fact that some of the principles are clearly binding principles as a matter of international law (e.g. the prohibition against torture), and some are norms that are not binding such as ‘where practicable, the detainee’s family is to be notified of the deprivation of liberty, release or transfer of a detainee’[6] but that the document in which they are contained is a soft law document. Put another way: the document is soft law and the Principles and Guidelines are evidence of law and sometimes policy or practice.

Second, the fact that they describe a shared understanding of how legal norms are to apply in the narrow context of taking and handling detainees in non-armed conflicts and peace operations provides greater clarity about dealing with detainees from the moment they are detained, or have their movement restricted, until their release or their transfer to another entity, such as the host nation. The Principles and Guidelines also address substantive issues such as the meaning of detention, the humane treatment to be afforded to detainees (including the use of force against detainees and the conditions for detention), the release of detainees, providing detainees with contact with the outside world, notifications concerning detention, dealing with complaints by detainees, the reviews to be conducted if a detainee is to be held in ongoing detention, and the transfer of detainees. The clarity concerning the phases of detention and the treatment of detainees, which does not exist in any other normative framework concerning detention in non-international armed conflicts and peace operations, contributes to filling a normative lacuna. Further, because of that normative lacuna the Principles and Guidelines provide a useful framework to assist military forces with a common starting point to develop their orders and standard operating procedures for dealing with detainees. That common starting point or platform is also useful in coalition or multinational operations when states engaged in such operations might have differing hard law obligations.

Third, the fact that the Principles and Guidelines take existing legal principles and rules—such as the obligation of humane treatment and the prohibition against torture74—and apply them by analogy75 to peace operations reinforces the application of those principles and rules in other military operations that might not be viewed as either armed conflicts or law enforcement. Taking binding norms by analogy and putting them to work in a non-binding document such as the Principles and Guidelines reinforces the interaction that can exist between hard and soft law. The former informs the latter and vice versa. The Principles and Guidelines also develop norms by, for example, providing that detaining authorities ‘should develop and implement standard operating procedures and other relevant guidance regarding the handling of detainees’/6 That norm development is important because it recognizes the nexus between doctrine and training on the one hand, and the humane treatment of detainees during operations. The articulation of shifting legal principles and rules by analogy, and developing norms, is an example of how the Principles and Guidelines might therefore be viewed as progressively developing law.

Another way of looking at norm development in the context of the Principles and Guidelines is to consider that they are both norm-filling and norm-creating. By way of example, the fact that the Principles and Guidelines recognize that security detainees (i.e. a person detained because there is a reasonable belief that he or she is a ‘security threat’)77 might be taken during non-international armed conflict is norm-filling—in the sense that such detention is not prohibited under the broad terms of Article 4 of AP II. However, it might be argued that the Principles and Guidelines are norm-creating in the sense that they take the category of security detainee as applicable to those who might be detained for security reasons during peace operations. The norm development role played by the Principles and Guidelines might therefore be seen as ‘operationalizing’ certain norms in the context of both non-international armed conflicts and peace operations.

Fourth, some of the Principles and Guidelines address matters not dealt with in any other normative framework but which nonetheless exist in practice. For example, the distinction between security detainees and criminal detainees (i.e. a person detained on suspicion of attempting to commit, or having committed a criminal offence)—two categories of detainees that have been taken in many military operations—and the rights concerning the review of ongoing detention8 is not addressed in any international law treaty or in customary international law that relates to peace operations that are not categorized as armed conflicts. That distinction reaffirms that states participating in the Process believed that both security and criminal detentions are valid forms of detention. Furthermore, participating states also accepted that in the context of security detainees there are legal norms applicable, such as prompt initial review, and having the decision reviewed periodically by an impartial and objective authority/9 In the case of criminal detainees the Principles and Guidelines accept that it is appropriate to transfer such detainees to an appropriate authority, or to have proceedings initiated against them. If the transfer or initiation of proceedings is not possible in a reasonable time then ‘the decision to detain is to be reconsidered in accordance with applicable law’/0 Principle 13 demonstrates how the Principles and Guidelines give effect to practice, the taking of both security and criminal detainees, while at the same time ensuring that the time of detention and subsequent ongoing detention are governed by appropriate norms. The blending of practice and norms therefore value-adds to the development of both policy and law. [7] [8] [9]

80 Principles and Guidelines, Principle 13.

Fifth, it has been noted that ‘states and non-state actors increasingly use soft law not to “progressively develop” existing hard law, but to undermine it’.[10] [11] [12] [13] [14] [15] [16] Such a view about the ‘antagonistic’82 nature of soft law assumes that states and non-state actors are acting in bad faith. It also assumes that the notion of hard and soft norms is a binary phenomenon and fails to recognize that the interpretation of norms, whether they be hard or soft, ‘comes in degrees’^3 As described by Ratner, states use all norms in international law with such flexibility in mind so as to determine interpretations based on factors such as who developed the norms, the level of precision expected of the norm, and the control mechanisms involved in making the norms effective.84 A more optimistic view is that soft law ‘in its various forms can of course be abused, but so can most legal forms, and ... [soft law] has generally been more helpful to the process of international law-making than it has been objectionable. It is simply another tool in the professional lawyer’s armoury’.85 The Principles and Guidelines having been inspired by good practices and lessons learned and ‘[f ] ounded on the legal principles that all persons who are detained or whose liberty is being restricted must be treated humanely, that any detention must be conducted in accordance with applicable law, on the policy principle that legal authority to detain should be exercised in a prudent manner’86 should allay concerns about the bad faith of states or their antagonistic nature.

Sixth, the fact that states were unable to settle on the precise relationship between IHL and IHRL in the context of detention operations in non-international armed conflicts and peace operations reinforces the general view that some states are hesitant to meld the two branches of law together—at least in relation to military operations. In the end perhaps some states felt that since IHL and IHRL ‘have different presumptions about the context of detention, they have different, specific, but contradictory rules’^7 From a state perspective this is important to understand as it demonstrates a tension that exists in recognizing the precise reach of IHRL in armed conflict situations and peace operations when, for some states, the belief is that IHL is the appropriate legal regime to deal with the competing needs of humanitarianism and achieving the military mission.

  • [1] 2 Principles and Guidelines, Preamble, para. II. 53 Principles and Guidelines, Preamble, para. II. 54 Principles and Guidelines, Preamble, para. 16 and the Preamble XI. 55 See e.g.: K. W. Abbott and D. Snidal, ‘Hard and Soft Law in International Governance’,International Organization vol. 54 (200): 421—56; L. Blutman, ‘In the Trap of a Legal Metaphor:International Soft Law’, International and Comparative Law Quarterly vol. 59 (2010): 605—24; C.Chinkin, ‘The Challenge of Soft Law: Development and Change in International Law’, Internationaland Comparative Law Quarterly vol. 38 (1989): 850—66; J. Ellis, ‘Shades of Grey: Soft Law and theValidity of Public International Law’, Leiden Journal of International Law vol. 25 (2012): 313—34;T. Gruchalla-Wesierski, ‘A Framework for Understanding “Soft Law” ’, McGill Law Journal vol. 30(1984): 37—88; J. Klabbers, ‘The Undesirability of Soft Law’, Nordic Journal of International Law
  • [2] See e.g.: T. Winkler, Transfer of Detainees, address at the International Institute ofHumanitarian Law 33rd Round Table on Current Issues of International Humanitarian Law, ‘GlobalViolence: Consequences and Responses’ (San Remo, 9—11 Sept. 2010). Denmark conducted publicbriefings on the Process at the San Remo Round Tables in 2008 and 2010, at the Bruges Colloquiumin 2008, at a side-event during the UN General Assembly in 2008, and at the 31st Conference RedCross and Red Crescent. Furthermore, the Process has been discussed at a number of academic conferences, including at the London School of Economics in 2009 and the University of Wollongong in2011. See e.g.: T. Winkler, The Copenhagen Process on the Handling of Detainees in International MilitaryOperations, address at the International Institute of Humanitarian Law 31st Round Table on CurrentIssues of International Humanitarian Law, Human Rights and Peace Operations (San Remo, 4—6Sept. 2008); T. Winkler, The Copenhagen Process on the Handling of Detainees in International MilitaryOperations, address at the 9th Bruges Colloquium, Transfers of Persons in Situations of Armed Conflict(Brussels, 16—17 Oct. 2009); C. Droege and L. Arimatsu, ‘Conference on the European Conventionon Human Rights and International Humanitarian Law: Conference Report’, Yearbook of InternationalHumanitarian Law vol. 12 (2009): 435^9. The last engagement with civil society occurred in Oct.2012 when the Ministry hosted a round table discussion with civil society to inform them aboutthe government of Denmark’s negotiations at the final conference. Those attending the round tableincluded Amnesty International, Danish Society of the Red Cross, Human Rights First, and Danishacademia.
  • [3] See e.g.: Canada: Amnesty International, Canada v. Canada (Minister of National Defence) [2007]C. 1147 (Can.); Denmark: Case No. 180/2011 Ghousouallah Tarin v. Ministry of Defense; Iraq: CasesNo. B3421-11 Brak and others v. Ministry of Defense; B397-12, Shahel and others v. Ministry of Defense;B1162-12, Al Saadoun and others v. Ministry of Defense; B3534-12, Albarrak and others v. Ministry ofDefense; and B420-13, Abdullah and others v. Ministry of Defense.
  • [4] Principles and Guidelines, Preamble II. 66 Principles and Guidelines, Preamble VI.
  • [5] Principles and Guidelines, Preamble IV. 2 Principles and Guidelines, Principle 2. 69 Principles and Guidelines, Principle 3. 7° Principles and Guidelines, Principle 7. 71 S. Ratner, ‘Does International Law Matter in Preventing Ethnic Conflict?’, NYU Journal ofInternational Law and Policy vol. 32 (2000): 591—724 at 668.
  • [6] Principles and Guidelines, Principle 11. 74 Principles and Guidelines, Principle 2. 75 For a more detailed explanation of the methodology used by lawyers to develop law by analogysee e.g.: International Law Commission, Report of the Study Group on Fragmentation of InternationalLaw: Difficulties Arising from Diversification and Expansion of International Law, UN Doc. A/CN.4/L.628 (2006) para. 36. 76 Principles and Guidelines, Principle 5.
  • [7] Principles and Guidelines, Commentary 12.1. The notion of a security detainee is derived fromGeneva Convention IV, Arts 42 and 78. Other terms used for such detention include ‘administrative’,‘preventative’, or ‘operational detention’.
  • [8] Principles and Guidelines, Principles 12—13.
  • [9] Principles and Guidelines, Principle 12.
  • [10] Shaffer and Pollack (20 01): 1159—60. 82 Shaffer and Pollack (2001): 1159-60.
  • [11] 83 S. Ratner, ‘Jus ad Bellum and Jus in Bello after September 11’, American Journal of International
  • [12] Law vol. 96 (2002): 905-21 at 914.
  • [13] 84 Ratner (2002): 914.
  • [14] A. F. Boyle, ‘Reflections on the Relationship of Treaties and Soft Law’, International andComparative Law Quarterly vol. 48 (1999): 901-13.
  • [15] 86 Principles and Guidelines, Preamble VIII.
  • [16] Bellinger and Padmanabhan (2011): 210. See also: B. Oswald, ‘Detention of Civilians onMilitary Operations: Reasons for and Challenges to Developing a Special Law of Detention’, MelbourneUniversity Law Review vol. 32 (2008): 524-53.
 
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