Rationales for Detention: Security Threats and Intelligence Value
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Description
In the armed conflict with Al Qaeda inside and outside Afghanistan, the US government has had to grapple with difficult legal issues concerning who can be detained. In this brief essay, I discuss whether US practices have been consistent with the law of armed conflict (LOAC). Three specific issues are considered. The first is a threshold question: Does LOAC regulate who can be detained in a non-international armed conflict? After concluding that it does, I address two questions that implicate the substantive criteria for detention. First, is it lawful to detain civilians who have not directly participated in hostilities? Second, is it lawful to detain individuals for a long or indefinite period for the purpose of gathering intelligence? Since September 11, the US government has adjusted its detention practices to overcome various legal defects. These three issues remain among the fundamental challenges to the detention regime. It is not obvious that LOAC regulates the substantive grounds for detention in non-international armed conflict. Neither Common Article 3 nor Additional Protocol II explicitly addresses the subject. They contain no language expressly prohibiting arbitrary detention or unlawful confinement. Similarly, the Rome Statute for the International Criminal Court includes “unlawful confinement” in a list of war crimes in international armed conflict. 2 Unlawful confinement, however, is conspicuously absent from the Statute’s list of war crimes in non-international armed conflict. Additionally, a 2004 expert meeting—which included Louise Doswald-Beck, Knut Dörmann, Robert Goldman, Walter Kälin, Judge Theodore Meron, Sir Nigel Rodley and Jelena Pejić—concludes that LOAC does not contain rules precluding unlawful confinement in non-international armed conflicts: “Non-International Armed Conflicts The experts noted that there are no provisions requiring certain reasons for detention, nor any procedures to prevent unnecessary detention. It was further observed that there are no specific supervisory mechanisms other than the minimal requirement that the ICRC [International Committee of the Red Cross] be allowed to offer its services. It was stated, therefore, that only national law is relevant, as well as international human rights law.” Some legal advisers at the International Committee of the Red Cross (ICRC) have helped support this view. A presentation at the 2004 meeting by Dörmann, Deputy Head of the Legal Division of the ICRC, states: “International humanitarian law applicable to non-international armed conflicts contains no provisions requiring certain grounds for detention/internment nor are there any procedures defined to check the need for such detention.” An important article in the International Review of the Red Cross by Jelena Pejić, Legal Adviser in the ICRC Legal Division, is more equivocal. She states: “In non-international armed conflicts there is even less clarity as to how administrative detention is to be organized. Article 3 common to the Geneva Conventions, which is applicable as a minimum standard to all non-international armed conflicts, contains no provisions regulating internment, i.e. administrative detention for security reasons, apart from the requirement of humane treatment.” Pejić does not elaborate whether or to what extent the requirement of humane treatment might directly regulate the use of security rationales or other grounds for confinement. Many of these experts find some solace in the notion that gaps in LOAC are intolerable (else a legal black hole) and that those gaps would be filled by international human rights law. The 2004 expert meeting, in which Pejić, Dörmann and others participated, concludes: “The experts stated that as IHL does not provide procedural guarantees to persons detained during non-international armed conflict, human rights standards must always apply . . . . The general view was that instead of trying to amend humanitarian law to remedy its failings, the standards applicable to non-international armed conflict should be those of human rights law and subject to human rights remedies.” International human rights law, however, is not accorded the same legal (or symbolic) weight in US law and practice as the Geneva Conventions or customary international humanitarian law. Hence, the exclusion of LOAC from this domain would leave a substantial void in the definition and regulation of impermissible behavior.
Source Publication
The War in Afghanistan: A Legal Analysis
Source Editors/Authors
Michael N. Schmitt
Publication Date
2009
Recommended Citation
Goodman, Ryan, "Rationales for Detention: Security Threats and Intelligence Value" (2009). Faculty Chapters. 743.
https://gretchen.law.nyu.edu/fac-chapt/743
