War and Detention

4 Pages Posted: 3 Sep 2015

See all articles by Chris Jenks

Chris Jenks

Southern Methodist University - Dedman School of Law

Geoffrey S. Corn

South Texas College of Law

Date Written: September 1, 2015


War involves using military power to force an enemy into submission. It also almost always involves the capture and detention of enemy personnel. Indeed U.S. military forces have captured and detained thousands in armed conflicts in Afghanistan, Iraq and other locations of this borderless war with al-Qaida. While preventive detention of enemy captives for the duration of hostilities is unremarkable, rarely in modern history has this authority been used in relation to a conflict that seems to have no end, like the U.S. armed conflict with al-Qaida. This has strained the perception of legitimacy, and led many to condemn what they view as indefinite detention without trial or conviction. This essay provides a brief overview of the challenges stemming from detention of non-state actors during non-international armed conflict, including what law applies, the status of review of such detention and how detainees are to be treated. Ultimately U.S. detention policy reflects an attempt at balancing and minimizing risks, the risk that an enemy will be allowed to return to the fight and the possibility of unjustifiably detaining individuals who pose no genuine risk of doing so.

Keywords: Detention, armed conflict, non-international armed conflict, NIAC, prisoner of war, POW, international armed conflict, IAC, al-qaida, taliban, detention, detainee, treatment, status, review

Suggested Citation

Jenks, Chris and Corn, Geoffrey S., War and Detention (September 1, 2015). The American Legion, September 2015, SMU Dedman School of Law Legal Studies Research Paper No. 177, Available at SSRN: https://ssrn.com/abstract=2654928

Chris Jenks (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Geoffrey S. Corn

South Texas College of Law ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

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