5. The perpetrator confined or continued to confine one or more persons to a certain location.

5.1. Confinement of one or more persons; OR

5.1.1. Evidence of confinement in other non-enclosed locations.

5.1.2. Evidence that confinement was unlawful.

5.2. Continued confinement of one or more persons.

5. The perpetrator confined or continued to confine one or more persons to a certain location.

5.1. Confinement of one or more persons; OR

"The protection of civilians from harm during armed conflict is a fundamental aim of international humanitarian law. However, the freedom of movement of "enemy" civilians during armed conflict may be restricted, or even temporarily suppressed, if circumstances so require. Thus there is no absolute right in the Geneva Conventions to freedom of movement. However, this does not mean that there is a general suspension of this right during armed conflict either. To the contrary, the regulations concerning civilians in the territory of a party to an armed conflict are based on the concept that the individual freedom of civilians should remain unimpaired. The right in question is therefore a relative one, which may be restricted."[1]

"[..] under Article 5(e) of the Tribunal's Statute, a deprivation of an individual's liberty will be arbitrary and, therefore, unlawful if no legal basis can be called upon to justify the initial deprivation of liberty. If national law is relied upon as justification, the relevant provisions must not violate international law. In addition, the legal basis for the initial deprivation of liberty must apply throughout the period of imprisonment. If at any time the initial legal basis ceases to apply, the initially lawful deprivation of liberty may become unlawful at that time and be regarded as arbitrary imprisonment."[2]

"Articles 42 and 43 [of Geneva Convention IV] return to the term "security", itself a somewhat broad criterion, as justification for the restrictions upon liberty that they permit."Security" remains as vague here as in earlier articles, and the expression does not appear susceptible to more concrete definition. The measure of activity deemed prejudicial to the internal or external security of the State which justifies internment or assigned residence is left largely to the authorities of that State itself."[3]

"A party seeking to rely upon Article 42 of the Geneva Convention IV must show with respect to each individual who has been deprived of his liberty reasonable grounds for concluding that that individual constituted a threat to the security of the depriving party. There was no consideration given to the individual circumstances of any of the non-Serb detainees by those carrying out the detentions."[4]

"In relation to occupied territory, specific provisions of the Geneva Conventions apply. Although the present case does not relate to a situation of occupation, it is useful to briefly consider these provisions insofar as they are relevant to the unlawful confinement of civilians. Article 78 of Geneva Convention IV sets up a rule similar to article 41 in situations of occupation, allowing Occupying Powers to intern protected persons under certain conditions. However, internment and assigned residence, whether in the occupying power's national territory or in the occcupied territory, are exceptional measures to be taken only after careful consideration of each individual case. Such measures are never to be taken on a collective basis."[5]

"The language of article 5 is very broad and its provisions may be applicable in a wide variety of situations. The concept of "activities prejudicial or hostile to the security of the State" is difficult to define. What appears to be included is, above all, espionage, sabotage and intelligence activities for the enemy forces or enemy nationals. The clause cannot simply refer to an individual's political attitude towards the State. However, no further guidance as to the kinds of action envisaged is given in the text of article 5."[6]

" [..] non-Serb males from Foča and its environs were imprisoned indiscriminately. The only personal characteristic which featured in the decision to detain these men was their non-Serb ethnicity, the overwhelming majority of those detained being Muslim. The evidence establishes that no consideration was given to age, state of health or civilian status."[7]

"[...] even taking into account the measure of discretion which should be afforded to the detaining power in assessing what may be detrimental to its own security, several of the detained civilians could not reasonably have been considered to pose any sufficiently serious danger as to warrant their detention. The Trial Chamber specifically accepted the evidence of a number of witnesses who had testified that they had not participated in any military activity or even been politically active, including a 42-year old mother of two children. It concluded that at least this category of people were detained in the camp although there existed no serious and legitimate reason to conclude that they seriously prejudiced the security of the detaining party, which indicated that the detention was a collective measure aimed at a specific group of persons, based mainly on their ethnic background."[8]

5.1.1. Evidence of confinement in other non-enclosed locations.

5.1.2. Evidence that confinement was unlawful.

5.2. Continued confinement of one or more persons.

"If the exceptional and severe decision to intern or to place a civilian in assigned residence is taken where it is not justified by absolute necessity for the security of the State, the court or administrative board must revoke it."[9]

"The reasonableness of this period is not a matter solely to be assessed by the detaining power. The Appeals Chamber recalls that Article 43 of Geneva Convention IV provides that the decision to take measures of detention against civilians must be "reconsidered as soon as possible by an appropriate court or administrative board." Read in this light, the reasonable time which is to be afforded to a detaining power to ascertain whether detained civilians pose a security risk must be the minimum time necessary to make enquiries to determine whether a view that they pose a security risk has any objective foundation such that it would found a "definite suspicion" of the nature referred to in Article 5 of Geneva Convention IV. Although the Trial Chamber made no express finding upon this issue, the Appeals Chamber is satisfied that the only reasonable finding upon the evidence is that the civilians detained in the Celebici camp had been detained for longer than such a minimum time."[10]

Prosecutor v. Jadranko Prlić, Case No. IT-04-74-T, Judgement (TC), 29 May 2013, paras. 133-139:

"133. The offence of unlawful confinement of civilians, to which Count 11 of the Indictment is directed, is prohibited under Article 2(g) of the Statute and is listed among the grave breaches in Article 147 of the Fourth Geneva Convention. Under certain conditions, the Fourth Geneva Convention permits only the imposition of “measures of control and security” on protected persons within the meaning of the Fourth Convention, such as internment or placement in assigned residence, as well as voluntary internment."

"134. The internment or placement in assigned residence of a protected person is permitted if the “security of the Detaining Power makes it absolutely necessary” or, in the case of an occupation for “imperative reasons of security”. The parties to a conflict possess broad discretion to determine which activities are harmful to the external or internal security of a State, and may resort to internment or placement in assigned residence if they have serious and legitimate reasons “to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security”. Subversive activity carried on inside the territory of a party to the conflict or acts that directly assist an enemy power may constitute threats to national security. On the other hand, the mere fact that a person is a national of or has taken sides with the enemy party cannot be considered threatening the security of the country in which he or she resides. Likewise, the fact that “a man is of military age should not necessarily be considered as justifying the application of these measures”."

"135. Internment and placement in assigned residence constitute measures taken on an exceptional basis, after detailed examination of each individual case and may not in any circumstance constitute a collective measure. Thus, the Detaining Power must, within a reasonable time, determine on a case-by-case basis whether a detained person constitutes a threat to the security of the State. Reasonable time has been defined by the Appeals Chamber as “the minimum time necessary to make enquiries to determine whether a view that they pose a security risk has any objective foundation such that it would found a “definite suspicion”."

"136. Moreover, the Detaining Power must respect certain procedural guarantees, or otherwise render the internment or placement in assigned residence unlawful, despite its being lawful at the outset. Thus, according to Article 78 of the Fourth Geneva Convention, decisions regarding internment or assigned residence must be made according to a regular procedure that must include a right of appeal, which shall be decided with the least possible delay, as well as a periodical review by a body competent over the decisions in question. Moreover, Article 43 of the Fourth Geneva Convention, which applies to the territory of the parties to the conflict as well as to occupied territory, provides that:

“Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Unless the protected persons concerned object, the Detaining Power shall, as rapidly as possible, give the Protecting Power the names of any protected persons who have been interned or subjected to assigned residence, or who have been released from internment or assigned residence. The decisions of the courts or boards mentioned in the first paragraph of the present Article shall also, subject to the same conditions, be notified as rapidly as possible to the Protecting Power.”"

"137. Moreover, the Fourth Geneva Convention provides provisions pertaining to the conditions of internment. Internees are to be accommodated separately from prisoners of war, in premises which are protected from dampness, and are adequately heated and lighted. They must be afforded sanitary conveniences that conform to the rules of hygiene, and must receive adequate daily food rations, and, if needed, sufficient clothing. Places of internment are to have an infirmary, where internees may have the medical attention they require. Internees shall enjoy complete latitude in the exercise of their religion."

"138. The internment of a protected person at his or her request is provided for under Article 42 of the Fourth Geneva Convention. Voluntary internment in the interest of the protected person is subject to three cumulative conditions: (1) it must be requested by the protected person, (2) the request must be made through the representatives of the Protecting Powers, and (3) it must be warranted by the situation of the interested party. When a request of this nature meets these three conditions, then the authorities of the State where he or she is living are obliged to give it favourable consideration."

"139. By way of conclusion, the detention or confinement of civilians is unlawful in the following cases:(i) when one or more civilians have been detained in contravention of Articles 42 or 78 of the Fourth Geneva Convention;

(ii) where there has not been compliance with the fundamental procedural safeguards conferred upon civilians detained under Articles 43 and 78 of the Fourth Geneva Convention, even if their detention was initially justified."