Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 63-68:
"63. The Chamber nevertheless considers that Articles 68 and 78 of the Fourth Geneva Convention, which provide for lawful detention measures in the context of an occupation, must be given consideration when assessing whether there was an unlawful imprisonment within the meaning of Article 5(e) of the Statute. Therefore, the Chamber holds that the imprisonment of individuals is unlawful within the meaning of Article 5(e) of the Statute when:
– the individuals in question who are in occupied territory and committed an offence, solely to harm the Occupying Power, without such offence having caused harm to the lives or bodily integrity of the members of the occupying forces or administration, without having created a substantial collective danger and without seriously damaging the property of the occupying forces or administration or the facilities used by them, were detained for a period of time disproportionate to the offence committed in contravention of Article 68 of the Fourth Geneva Convention;
– the individuals in question who are in occupied territory, were detained in contravention of Article 78 of the Fourth Geneva Convention, whereas there is no substantial reason to believe that the security of the Detaining Power rendered it absolutely necessary;
– the procedural safeguards required by Article 78 of the Fourth Geneva Convention were not afforded to the individuals detained, even where initial detention was justified."
"64. Concerning Article 42 of the Fourth Geneva Convention, the Appeals Chamber has established that the “imperative reasons of security” had to be such that detention was “absolutely necessary” to ensure the security of a State. The Chamber holds that this definition also applies to Article 78 of the said treaty. In this respect, the jurisprudence of the Tribunal generally grants broad discretion to the party having recourse to this measure in deciding what constitutes a threat to its security. Nevertheless, the Detaining Power does not possess blanket authority to detain the entire civilian population of a party to the conflict. It must establish for each individual that he or she poses a specific risk to the security of the State, such that it is necessary to detain them."
"65. Certain acts are considered prejudicial to the security of a State: espionage, sabotage and “intelligence with the enemy Government or enemy nationals”. However, the mere fact that a person is a national of or shares the same opinion as an enemy party does not per se justify the deprivation of liberty. By the same token, the fact that a man is of military age does not necessarily constitute a threat to the security of the enemy. Internment and placement in assigned residence are exceptional measures and must be ordered only after a careful consideration of each individual case."
"66. Even confinement of a civilian originally warranted by compelling reasons of security may become unlawful if the Detaining Power fails to comply with the procedural rights enshrined in Article 43 of the Fourth Geneva Convention. Thus, each person detained in accordance with Article 42 of the said Convention has the right to prompt review of that decision by a competent court or administrative board. If the appeal is denied, the court or administrative board must periodically reconsider the case at least twice a year."
"67. In the event that the competent authority concludes that internment or placement in assigned residence is not justified by absolute necessity for the security of the Detaining Power, it must revoke the measure."
"68. Article 78 of the Fourth Geneva Convention confers similar rights with regard to internment and placement in assigned residence, which are considered to be instances of “imprisonment” in occupied territory falling within the meaning of Article 5(e) of the Statute."
