82 QIL 60 (2019) 69-97
ZOOM IN
provide various procedural and substantive guarantees, including the
right of habeas corpus, the right to be promptly informed of the reasons
of detention, access to a lawyer, and the right to periodic review of the
necessity for continued detention, in cases of security detention.64
In relation to women and children − who, on the basis of their roles
in the ranks of ISIS,65 could be classified as either ‘indirect participants
in hostilities’66 or ‘non-participant in hostilities’ − their detention and internment in Iraq and Syria is clearly not status-based but grounded, respectively, on Iraqi law (which, notably, does not allow someone’s detention because a spouse or parent was a member of ISIS)67 or on the claim
that they pose a security threat,68 a condition that would require a specific
determination on an individual basis and cannot be assessed collectively
on the basis of a connection, tenuous or otherwise, with a terrorist organization.69 Therefore, both the grounds upon which women and children
are currently deprived of their liberty and the (dire) conditions of detention and internment should raise major concerns and have a bearing on
the responses and strategies of their States of nationality.
3.2. International counter-terrorism law
As is well known, a plethora of international norms, institutions, and
procedures specifically designed to deal with terrorism has emerged over
64
Z Mogessie Teferra, ‘National Security and the Right to Liberty in Armed Conflict:
The Legality and Limits of Security Detention in International Humanitarian Law’ (2018)
98 IRRC 961, 980.
65
As discussed in paras 2.1 and 2.2 of the present article.
66
Goodman defines indirect participation in relation to ‘civilians who support the
armed forces (or armed groups) by supplying labour, transporting supplies, serving as
messengers or disseminating propaganda are not direct participants, but they remain
amenable to domestic legislation against giving aid and comfort to domestic enemies’,
moreover ‘indirect participation also includes members of organizations whose object is
to cause disturbances’. Goodman (n 54) 54.
67
B Van Esveld, ‘Iraq/KRG: 1,400 Women, Children From ISIS Areas Detained’
Human Rights Watch (20 September 2017) <www.hrw.org/news/2017/09/20/iraq/krg1400-women-children-isis-areas-detained>.
68
M Sassòli, ‘The Concept of Security in International Law Relating to Armed
Conflicts’, in CM Bailliet (ed) Security: A Multidisciplinary Normative Approach (Martinus
Nijhoff Leiden 2009) 7; Mogessie Teferra (n 64) 971-975.
69
Goodman (n 54) 53-55.