A Square Peg in a Round Hole: Stretching Law of War Detention Too Far
26 Pages Posted: 26 Mar 2011
Date Written: March 26, 2011
This article focuses specifically on the appropriateness of indefinite detention under the laws of war that the Obama Administration is establishing for certain detainees currently at Guantanamo, and possibly others in the future. In particular, this article argues that the indefinite detention regime ongoing and proposed for the future diverges in critical ways from traditional law of war detention.
Although additional process is a positive step, process alone cannot answer deeper questions about the lawfulness of an indefinite detention regime in general or the lawfulness of such detention for particular individuals. One important foundational question, therefore, is whether characterizing the detention of these forty-eight individuals – and likely others in the future – as “under the laws of war” is truly an accurate label. The law of war does indeed provide for detention without charge of both prisoners of war and civilians in certain circumstances; the question here is whether the indefinite detention currently at issue can truly be called “law of war” detention or whether it is a perversion of that concept, the proverbial square peg in a round hole.
This article highlights three problems with the current and proposed indefinite detention of terrorist suspects, problems that expose how this system stretches the traditional notion of law of war detention beyond its limits – problems of definition, problems of purpose and problems of posture. Problems of definition involve the geography of the battlefield and the temporal parameters of a conflict with terrorist groups. Problems of purpose occur because the nature of the current indefinite detention regime suggests that the detention is punitive in nature, even if not formally so, whereas law of war detention is traditionally protective in purpose and scope. Problems of posture exist because the indefinite detention regime is a system created in a reactive posture, one designed to meet a desired result rather than one developed proactively within an existing legal framework. While there is no doubt that new conflicts pose new questions and challenges, the failure to engage in foundational discussions about the nature of U.S. counter-terrorism goals and legal parameters has meant that the U.S. is continually operating from a reactive posture rather than on the basis of established criteria, standards and guidelines for future engagements. The end result: indefinite detention cannot rightly be termed “law of war detention” or detention “under the laws of war” without unduly stretching the fabric of traditional law of war detention too far.
Keywords: detention, law of war, law of armed conflict, indefinite detention, Geneva Conventions, prisoners of war, detainee, Guantanamo
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