Is There a Way Out of the Non-International Armed Conflict Detention Dilemma?

Abstract

International humanitarian law (IHL) does not prohibit detention without charge or trial. So-called security detention is a well-established feature of war. On this point, there is no argument. Geneva Convention treaty provisions for international armed conflicts (IACs), or wars between States, explicitly recognize such detention authority. Geneva Convention provisions for non-international armed conflicts (NIACs), or wars involving non-State armed groups, however, are silent on the matter of detention powers and therein lies a world of uncertainty. The best means of resolving that uncertainty is through the promulgation of detention authority under domestic law that conforms to applicable IHL and international human rights law.

Keywords: IHL, armed conflict, detention, human rights law, Geneva Conventions, Additional Protocols