How to Patch a Gap? The Legal Regime of Internment in Armed Conflict in Eastern Ukraine: Domestic Approach

Abstract

International Humanitarian Law (IHL) offers various instruments enabling parties involved in armed conflicts to maintain order in occupied territories, with one of the most significant being internment. While this practice is well-regulated and explicitly authorised in international armed conflicts (IAC), the authorisation of internment in non-international armed conflicts (NIAC) presents legal challenges.

The NIAC in Eastern Ukraine exemplifies how Ukraine attempted to address a gap in IHL regulations by turning to domestic law. However, the normative framework applicable to NIAC, which includes IHL, International Human Rights Law (IHRL), and domestic law, raises questions regarding their intersection. This article illustrates how the preventive detention implemented by Ukraine was designed to function as a distant ‘relative’ of traditional internment under IHL. It also examines how Ukrainian authorities sought to align their IHRL obligations with the context of the NIAC in Eastern Ukraine by amending national legislation.

The article concludes that domestic law serves as the main source for justifying internment in NIAC, given the scope of state jurisdiction. Neither IHL nor IHRL can be utilised to provide a legal ground to intern individuals in NIAC. Domestic law, being a ground for internment in NIAC, even under derogations, shall comply with the standards established by IHRL.