Transfers of detainees: legal framework,non-refoulementand contemporary challenges

Abstract

The article outlines the legal framework that governs transfers of individuals, and in particular the international law principle of non-refoulement and other obstacles to transfers. The author addresses some of the new legal and practical challenges arising in detention and transfers in the context of multinational operations abroad and analyses the contemporary practice of transfer agreements.The transfer and repatriation of persons during or after armed conflict is a long-standing concern of the ICRC. During armed conflicts detainees are sometimes transferred from one warring party to another, or back to their country of origin. At the end of conflicts, the repatriation of prisoners of war or the release of security detainees poses challenges as to their safe return.Over the past few years there have been many headlines about transfers of detainees. It is now public knowledge that within the framework of anti-terrorism measures, persons have been secretly transferred to and from various places of detention and have sometimes been mistreated during or after the transfer.

Taking One for the Team: Legal Consequences of Misconduct by Partners

“…For instance, prisoners of war may only be transferred to states that are willing and able to ensure the required treatment. 11 State practice seems to have extended this underlying non-refoulement principle to the transfer of other detainees, including in non-international armed conflicts (Droege 2008; International Committee of the Red Cross [ICRC] 2016: paras. 708-716).…”

Closer to home: How national implementation affects State conduct in partnered operations

“…First, the customary principle of non-refoulement acts as a limitation on the transfer of detainees between partners, including when it takes place within the territory of one State. 29 Second, according to the Human Rights Committee States have a duty "not to aid or assist activities undertaken by other States and non-State actors that violate the right to life". 30 It can be added that the Arms Trade Treaty (ATT) prohibits the transfer of conventional arms when a State Party has knowledge, at the time of authorization, that they would be used in the commission of international crimes, or when there is an overriding risk that the arms could be employed to commit serious violations of IHL and IHRL.…”