Non-Refoulement in Military Operations: Detainee Transfers, Risk Assessments and Monitoring
The present report – which follows up on the previous report Security Detention in Military Operations – examines detainee transfers, especially in relation to the non-refoulement principle. At its core, non-refoulement is about ensuring that detainees, following their transfer, are not subjected to torture or other forms of ill-treatment in the custody of the receiving state or non-state actor. The report provides a detailed overview of the relevant set of rules applicable to transfers of detainees from the custody of Denmark and other European states, and refers extensively to the Copenhagen Process (2007-2012) on the handling of detainees in international military operations. The report identifies a number of ambiguities in the existing legal framework, including in relation to the legal basis, the scope and the institutional setup for risk assessments and post-transfer monitoring. In the same way, it is unclear how detainees can challenge the transfer decisions and what the framework for handover agreements and other risk mitigation measures should be.
Against this background, the present report concludes with the following recommendations:
- Denmark should build on its good experience with the Copenhagen Process and seek to align itself with like-minded states to develop joint transfer procedures and mechanisms. With a significantly smaller group of states, it will be much easier to find common ground and agree on specific issues left out during the Copenhagen Process. Such a joint and proactive effort will have significant weight vis-à-vis the European Court of Human Rights, the UN Human Rights Committee and the UN Committee against Torture.
- Denmark should, in particular, focus on developing a joint mechanism for risk assessments. In view of resource constraints and interoperability concerns, like-minded states should pool their resources and build on their best practices. Likewise, they should also establish a joint mechanism for detainees to challenge the decision concerning their transfers. Since this requires the existence of an independent and impartial administrative board, it should ideally be combined with the one performing detention reviews.
- Denmark should also focus on developing joint transfer arrangements and post-transfer monitoring mechanisms as well as risk mitigating measures. Also in this area, like-minded states may benefit from pooling their resources and building on their best practices. They should also ensure a better feedback loop with those in charge of pre-transfer risk assessments.
