I don’t know if the ICRC will make any attempt to clarify its position, but I think the Court in Serdar Mohammed is wrong to suggest that the ICRC believes there is inherent detention power in the IHL of non-international armed conflict (NIAC). Jelena Pejic’s article, to which the Court refers in para 240 for that proposition, rather suggests just the opposite.
Here’s what Jelena’s article says, at page 383:
“In the context of internment/administrative detention, the principle of legality means that a person may be deprived of liberty only for reasons (substantive aspect) and in accordance with procedures (procedural aspect) that are provided for by domestic and international law.”
“Human rights standards applicable in non-international armed conflicts and other situations of violence provide even more detailed provisions aimed at ensuring respect for the principle of legality. Under the ICCPR (Article 9 (1)), for example, persons may not be deprived of their liberty “except on such grounds and in accordance with such procedure as are established by law.”
The article details the provisions of treaty IHL that establish grounds and procedures for detention in international armed conflict (IAC), but says nothing about like provisions of IHL related to NIAC, and for a good reason: there are none (a point on which the Court and Jelena’s article are in agreement rather than in opposition).
Bottom line: the ICRC agrees with the Court’s position that grounds and procedures applicable to detention in NIAC must be established in domestic law, in the absence of relevant international law.
BTW, as a former member of its legal division, I can vouchsafe that the ICRC isn’t exactly mellow about its employees taking positions at odds with those of The House. Therefore, I would not agree with Marco Milanovic’s otherwise excellent summary at EJIL Talk, that Jelena was speaking for herself rather than for the organization.
In fact, this ICRC background paper says the following about Jelena’s article:
“[T]he ICRC adopted in 2005 an institutional position on relevant standards for internment in armed conflict and other situations of violence.”
“ Jelena Pejic, “Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations of Violence”, International Review of the Red Cross, Vol. 87, No. 858, June 2005, pp. 375-391. This position was subsequently published as Annex 1 to the ICRC’s report, International humanitarian law and the challenges of contemporary armed conflicts, 30th International Conference of the Red Cross and Red Crescent, Geneva, October 2007.”
Gabor Rona is the International Legal Director of Human Rights First and teaches International Humanitarian Law at Columbia Law School.