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Article

Интернирование гражданских лиц в вооружённых конфликтах немеждународного характера

Lex Russica (Русский закон). 2014. № 9. С. 1043-1050.

Analyzing compliance of the internment to the requirement of “lawfulness” established in the international human rights law, the author concludes that the Second Additional Protocol on the Protection of Civilians in Armed Conflicts of a Non-International Character of 1977, contrary to the point of view widely represented in the international legal scholarship and used in practice, can not serve as a legal basis for the application of this measure. As such a basis can serve national regulations or sources of international law that meet the requirements of “legality”. However, the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 imposes on its states-parties excessive obligations to respect the right to freedom of an individual. In the light of such obligations the internment exercised without derogation from this right and carried out on the basis of national law, would be contrary to Para. 1 of Article 5 of the Convention. In addition, the position of the European Court of Human Rights is that the Resolutions of the UN Security Council can not be regarded as providing a State’s obligation to intern without bringing a charge against detained persons and without providing legal guarantees.

This paper substantiates the conclusion that for the purpose of establishing the scope and content of the procedural rights and guarantees to be provided to civilian internees, one should refer to the regulations of international human rights law, which are also applicable in armed conflicts of non-international character. Increasing number of rights and freedoms, from which no derogations are allowed and also emergence of an array of both treaty and customary law regulations of international law on combatting enforced disappearances, influenced the development of the scope of rights and guarantees to be provided to the persons detained in the course of armed conflicts. In particular, such safeguards include: habeas corpus; right to verify the legality of detention by an independent and impartial body; right to be informed of the reasons for internment; the right to legal assistance; the right to be registered and kept in officially recognized place of internment.