International Humanitarian Law

This chapter deals with the permissive and restrictive rules of international humanitarian law applicable to extraterritorial deprivations of liberty and transfer to the ICC. In situations of international armed conflict, the extraterritorial apprehension of suspects is in principle permitted: Under the law of occupation, Article 43 of the Hague Regulations and Article 64 of Geneva Convention IV grant the occupant the authority (and the duty) to maintain public order and civil life. This includes the power to arrest and prosecute, which also applies to suspects of core crimes such as war crimes, crimes against humanity, and genocide. As regards members of the adverse armed forces, customary international law and Geneva Convention III allow their capture and detention. While the law of international armed conflict is permissive on such extraterritorial deprivations of liberty, it is much more restrictive on transfers: Article 49(1) of GCIV prohibits transfers of protected persons out of occupied territories and Article 12(2) of GCIII forbids transfers to non-parties to Geneva Convention III. These rules also impede the transfer of suspects to the ICC. However, deviations for surrenders to the ICC could be envisaged if the Security Council authorises or if the ICRC approves and strictly monitors them.