Completion of Copenhagen Process Principles and Guidelines on Detainees in International Military Operations

John Bellinger
Monday, December 3, 2012, 7:34 PM
Belatedly, I want to note the completion -- on October 18/19 -- of the “Copenhagen Process on the Handling of Detainees in International Military Operations” and the release of “The Copenhagen Process Princip

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Belatedly, I want to note the completion -- on October 18/19 -- of the “Copenhagen Process on the Handling of Detainees in International Military Operations” and the release of “The Copenhagen Process Principles and Guidelines.”  The Copenhagen Process was a five-year, multi-stakeholder effort to develop principles and good practices for states and international organizations that detain persons in the course of military operations in situations of non-international armed conflict.     Twenty-four countries from Europe, Asia, Africa, and North and South America participated in the Copenhagen Process, and five international organizations participated as observers.  The Process was conceived (in 2007) and led by the Danish Government (first by then Danish Legal Adviser and now Danish Ambassador to the U.S. Peter Taksoe-Jensen and then by his successor as Legal Adviser, Thomas Winkler).  The U.S. Government was initially concerned that the Process would simply become a forum to criticize U.S. detention practices.  But by including so many countries and international organizations involved in armed conflicts and peacekeeping operations, the Danish government was able to demonstrate that detention operations pose legal challenges for all countries and that the rules for detention in NIACs are quite hazy.  The U.S. Government has endorsed the Copenhagen principles and is reportedly satisfied with them.   As I note at the end of this post, however, Amnesty International claims that the Copenhagen principles are "ineffective" and will "undermine human rights." Last year, Vijay Padmanabhan and I wrote an article in the American Journal of International Law, entitled “Detention Operations in Contemporary Conflicts:  Four Challenges for the Geneva Conventions and Other Existing Law,” in which we recommended that “states that are engaged in detention operations in conflicts with nonstate actors intensify efforts to agree on a common set of principles to guide detention.”  We explained that “The practice of specially affected states is especially important in developing international law because the extent and depth of their experience provides a useful background against which to evaluate possible new rules.”   We also recommended that this process involve the ICRC as well as consultation with human rights groups.   The Copenhagen Process is consistent with our recommendation. The Copenhagen principles are drawn from rules in international humanitarian law and human rights treaties as well as the practices of states.  Few of the principles are new or surprising, but they nevertheless provide greater specificity than rules set forth in the Geneva Conventions, the ICCPR, or the CAT.  Moreover, the rules in these treaties are not legally binding in many NIAC situations.  It is also valuable to have the principles collected in a single place and endorsed by a sizeable and diverse group of countries and international organizations.  The principles are accompanied by a Chairman’s Commentary (not officially endorsed by the participants) that provides some additional gloss. I have provided a few highlights and observations about some of the Copenhagen principles after the break:
1.         Detained persons should be “promptly registered by the detaining authority” and held in “a designated place of detention.”  The Chairman’s Commentary states that these principles are intended to ensure that detainees “are accounted for, as well as that the detention is not secret or concealed.” 2.         Detaining authorities should “notify the ICRC or other impartial humanitarian organization” of the detention OR the release or transfer of a detainee. 3.         Detainees are “to be permitted appropriate contact with the outside world, including family members as soon as reasonably practicable.” 4.         Persons detained for security reasons should have a “prompt initial review” and periodic subsequent reviews of their detention by “an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued detention."  These principles are consistent with U.S. practices. 5.         A State or international organization may only transfer a detainee to another State “in compliance” with the transferring State’s or (IO’s) international law obligations.  The principles do not state what these obligations are (for example, the principles do not resolve the issue about what obligations a State has with respect to transfers wholly outside its own territory, or inside the territory of another country, e.g., Afghanistan) .  The principles also do not require a transferring State or IO to request continued access to transferred detainees, but if they do request such access, then the receiving State or authority should facilitate such access for monitoring until the detainee is released, transferred, or convicted of a crime.
I should also note that several human rights organizations have criticized both the Copenhagen Process and the Principles, complaining that human rights groups should have been formally included in the Copenhagen Process.  In a highly critical report , Amnesty International claims the Copenhagen Principles “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.”

John B. Bellinger III is a partner in the international and national security law practices at Arnold & Porter in Washington, DC. He is also Adjunct Senior Fellow in International and National Security Law at the Council on Foreign Relations. He served as The Legal Adviser for the Department of State from 2005–2009, as Senior Associate Counsel to the President and Legal Adviser to the National Security Council at the White House from 2001–2005, and as Counsel for National Security Matters in the Criminal Division of the Department of Justice from 1997–2001.

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