Abstract

http://ssrn.com/abstract=1734922
 
 

Citations (1)



 
 

Footnotes (234)



 


 



Detention Operations in Contemporary Conflicts: Four Challenges for The Geneva Conventions and Other Existing Law


Vijay M. Padmanabhan


Vanderbilt University - Law School

John Bellinger III


Arnold & Porter

December 15, 2010

Cardozo Legal Studies Research Paper No. 318

Abstract:     
Since the 9/11 attacks, States have been scrambling to find answers to difficult questions surrounding the detention of members of non-State groups. Four legal questions in particular have proven vexing to States: (1) who is subject to detention; (2) what process must the State provide to those detained; (3) when does the right of the State to detain terminate; and (4) what legal obligations do States have in connection with repatriating detainees at the end of the conflict?

Nearly nine years since 9/11 two factors have prevented development of the law on these questions. First, some States, international organizations, and NGOs continue to insist that existing law adequately answers these questions. Second, where there is agreement that new law is needed, disagreement about how to develop the law has limited progress.

This Article, by two former State Department lawyers, crystallizes the existing state of law to create the foundation for development of new law on these important questions. The first objective is to demonstrate that existing law inadequately answers the questions posed. The Article begins by demonstrating why the law of non-international armed conflict, the generally applicable legal regime for armed conflicts between States and non-State groups, does not provide clear answers to these questions. The Article then explains why other legal regimes — international humanitarian law for international armed conflict, municipal law and international human rights law — also fail to provide adequate answers at present.

The Article’s second objective is to identify areas of convergence on these four questions that may form the basis for future legal development. The resistance of many to admitting further legal development is necessary is the legitimate fear that States will abuse legal uncertainty to engage in policies inconsistent with the spirit of international law. Immediate work on development of new law may ameliorate these fears. While a new treaty regime may be the ideal vehicle for development of new law, the Article recognizes that agreement on a new treaty is unlikely, and proposes an agreement on common principles by like-minded States as an interim step.

Number of Pages in PDF File: 43

Keywords: Detention, ICJ, Detainees, National Security, Non-State Actors, Al Qaida, Geneva Conventions, Customary International Law, IHL, International Humanitarian Law, Hamdi

working papers series


Download This Paper

Date posted: January 7, 2011 ; Last revised: May 12, 2011

Suggested Citation

Padmanabhan, Vijay M. and Bellinger, John, Detention Operations in Contemporary Conflicts: Four Challenges for The Geneva Conventions and Other Existing Law (December 15, 2010). Cardozo Legal Studies Research Paper No. 318. Available at SSRN: http://ssrn.com/abstract=1734922 or http://dx.doi.org/10.2139/ssrn.1734922

Contact Information

Vijay M. Padmanabhan (Contact Author)
Vanderbilt University - Law School ( email )
131 21st Avenue South
Nashville, TN 37203-1181
United States
John Bellinger III
Arnold & Porter ( email )
555 Twelfth Street, NW
Washington, DC 20004-1206
United States
Feedback to SSRN


Paper statistics
Abstract Views: 778
Downloads: 205
Download Rank: 82,302
Citations:  1
Footnotes:  234

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo2 in 0.437 seconds