Towards a Quasi-Constitutional Law of Armed Conflict Detention
in Richard Albert & Joel Colon-Rios eds., Quasi-Constitutionality and Constitutional Statutes: Forms, Functions, and Applications (Routledge, 2018, Forthcoming)
29 Pages Posted: 18 Sep 2017
Date Written: September 14, 2017
The paper applies theories of quasi-constitutionality to international law and, more specifically, to the law governing detention in armed conflict. Considerable debate persists over the appropriate legal framework for detention in non-international armed conflict (NIAC). NIACs generally describe conflicts between a state (or multiple states) and non-state actors, as opposed to international armed conflicts, which involve conflicts between states. This debate is typically approached through a conflict-of-laws analysis that focuses on the relationship between international humanitarian law, which applies to situations of armed conflict, and international human rights law, which governs outside such situations. The paper offers a different perspective. It describes how efforts by some jurists, states, and civil society to articulate baseline requirements on such questions as the authority to detain, the permissible grounds for detention, and the necessary procedural safeguards bear quasi-constitutional features. While the emerging norms can be trumped or altered by the ordinary lawmaking process (treaties or the development of customary international law), they reflect an effort to entrench minimum safeguards in an area that implicates the fundamental right of personal liberty.
Keywords: Law of Armed Conflict, International Law, International Human Rights Law, International Humanitarian Law, National Security Law, Constitutional Law
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