The Danish Ministry of Foreign Affairs, The Copenhagen Guidelines and Principles on the Handling of Detainees in International Military Operations, October 2012

The Copenhagen Principles62 were initiated by the Danish Ministry of Foreign Affairs in 2007 and concluded on 19 October 2012 when sixteen states ‘welcomed’ the Copenhagen Process Principles and Guidelines.¹⁶³ The ICRC was invited to participate as an observer. The Copenhagen Guidelines apply to international military operations in the context of non-international armed conflict, and peace operations.6⁴

The purpose of the Copenhagen Guidelines is not to create new legal obligations or authorizations under international law, but to develop principles to guide the implementation of the existing obligations with respect to detention in international military operations.65

Nonetheless, in 2013, shortly after the adoption of the Copenhagen Guidelines, the UK Ministry of Defence claimed, in a case before the UK High Court ofJustice, that the Guidelines could be seen as evidence of CIHL. The case concerned the UK military’s detention of an Afghan detainee in Afghanistan in 2010. However, this was rejected by the Court:

The MOD’s contention that a legal power to detain exists as a matter of customary IHL is primarily based on a set of principles and guidelines developed in the Copenhagen Process on the Handling of Detainees in International Military Operations ... The MOD [cannot] rely on the Copenhagen Process Principles as evidence of customary international law. I note in any event that the Copenhagen Process Principles again do not themselves purport to provide a legal basis for detention. Principle 4 merely requires that detention must be justified on the basis of ‘applicable international law.’⁶⁶

There are no references to human rights standards in the Copenhagen Guidelines, either in the introductory remarks or in the sixteen principles contained in the Guidelines.

The delegation of Sweden stated during the final meeting in October 2012 in Copenhagen that the Swedish interpretation of the reference to international law in principle I66⁷ is that this also includes human rights law, and that Sweden would have preferred if this had been stated explicitly in principle 16.6® Likewise, the Russian Federation indicated at the final meeting in Copenhagen that the ‘Copenhagen Process could contribute more to the safeguarding of the humane treatment of detainees by placing greater emphasis on their inherent rights which derive from the international human rights law and the international humanitarian law’/⁹