Copenhagen ‘Principles’ on military detainees undermine human rights
You may be forgiven for not having heard of the Copenhagen ‘Principles’.
They have after all been reached in quasi-secrecy during a five-year process behind closed doors.
Yet they refer to something of international importance – the handling of detainees in international military operations.
On 20 October 2012, the Denmark’s Foreign Ministry of Denmark announced that a group of two dozen states meeting in private in Copenhagen had adopted the “principles and guidelines”.
They come after Denmark deliberately convened discussions outside of any established international organisation in order to retain the ability to exclude certain states and civil society including organisations such as Amnesty International.
The content of discussions was only revealed when Amnesty International and a handful of other civil society organisations were invited to a brief meeting with Danish authorities on the morning of 16 October, less than 48 hours before the final (and once again confidential) meeting of states was to begin.
The lack of meaningful consultation is particularly surprising given the global scope and fundamental importance of the very real challenges that the Copenhagen Process purports to address.
Imagine that troops from a European country enter a house in Afghanistan and bring a man they suspect of associating with the Taliban back to their base, where they keep him against his will for several days.
The Afghan National Directorate of Security (NDS) finds out and arrives at the base asking that the detainee be handed over to them.
But the NDS is known routinely to torture such detainees, and transferring a person to a risk of such abuse clearly violates absolute obligations under international law.
Imagine a request is also received from a US special operations commander who says this person is of interest to them and they would like to “borrow” him, holding him incommunicado for a few weeks or months of interrogation in a secret location.
The situation being described sounds a lot like an enforced disappearance which, like torture, is absolutely prohibited by international law.
Situations like this have arisen frequently and can throw into stark relief the fact that different states in joint operations can be subject to different sets of treaty obligations.
Interpretations of obligations can vary even under the same treaty.
States generally aim to maximize their ability to cooperate and to minimize the cost and complication of their own operations - human rights concerns appear to have come to be seen by some states as a pesky and unnecessary irritant.
The situation is further exacerbated by the outright refusal of some states, despite clear rulings by the International Court of Justice and affirmations by a wide range of United Nations experts over several decades, to accept they remain bound by their human rights obligations in situations of armed conflict, including in respect of acts they commit outside their territory.
At the same time, a small number of states invoke the laws of war in a far wider range of circumstances than conventional interpretations of international law would allow.
And a key manipulator of this line is the United States of America.
Using its theory of “global war” against al-Qa’ida and a vague, sometimes shadowy range of “associated” entities, the USA continues to invoke the laws of war to the exclusion of human rights law.
By doing so, it seeks to justify more than a decade of denying key human rights protections to detainees taken into custody far from any battlefield and only distantly related, if at all, to any actual fighting.
Deep differences can emerge even between allies as close as the UK and the USA.
The UK has ratified the 1977 Protocol II (on non-international armed conflicts) to the 1949 Geneva Conventions, and the European Court of Human Rights has held the European Convention on Human Rights to apply to detainees held by the UK in Iraq.
The USA by contrast has not ratified the Protocol and denies that its human rights obligations, particularly those under the International Covenant on Civil and Political Rights, apply at all to detainees outside of its borders (or to military detainees within its borders).
Amnesty International considers that states have clear options that would permit them to participate in joint military operations where such differences arise.
Where operations give rise to shared responsibility for detainees, states could choose to harmonize their operating rules to comply with the strongest set of obligations under international human rights and humanitarian law by which any one of them is bound.
States that cannot win agreement to such upward harmonization could choose to retain full responsibility for the detainees in their custody rather than risk violating their obligations by transferring them to uncooperative states.
The “Copenhagen Process Principles and Guidelines” announced on 20 October do not take this approach.
Instead, they can be read as allowing for a lowering of standards to a kind of muddled compromise that in some respects falls even below the “lowest common denominator” among participating states.
So what does this mean in practical terms?
The guidelines do not acknowledge that enforced disappearance and other forms of secret detention are prohibited – no ifs, no buts - under international law.
This is especially of concern given that the guidelines would allow states to not inform family members of the fate and whereabouts of a detainee, in circumstances that are neither defined nor limited in time by the guidelines.
They appear to endorse indefinite administrative detention on security grounds, without providing for the safeguards identified as essential by the UN Human Rights Committee - for example the right to challenge the lawfulness of detention before a court.
They allow for the indefinite detention of people suspected of having committed criminal offences, without recognising their basic right either to trial within a reasonable time or release.
Nor do they recognise that complaints of torture or other cruel, inhuman or degrading treatment must be investigated by independent and impartial authorities, that victims of such abuses have the right to an effective remedy, and that those responsible for such abuses must be brought to justice.
So given the extent to which they pander to existing poor practices, the Copenhagen Principles are unlikely actually to result in better fulfilment of human rights obligations in situations of armed conflict and peacekeeping operations.
On the contrary, Amnesty International fears the Principles and Guidelines are ripe for exploitation by some states as they try to reinterpret or dodge their obligations under international humanitarian and human rights law.
So at the end of a process that purported to aim at “ensuring humane treatment of detainees”, what has actually emerged is a framework that will at best be ineffective, and at worst could fundamentally damage human rights.
Amnesty International Canada
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