Detention Under the Law of Armed Conflict
in Rain Liivoja & Tim McCormack, eds., ROUTLEDGE HANDBOOK OF THE LAW OF ARMED CONFLICT, London: Routledge, 2016.
16 Pages Posted: 5 Jan 2018
Date Written: 2016
Despite recent hard-earned experience during international and non-international armed conflicts in places like Afghanistan and Iraq, and in peacekeeping missions around the world, the international community continues to struggle practically and conceptually with detention of belligerents. The struggle includes questions ranging from when individuals may be detained and for how long, to determining the applicable legal regime. While this myriad of issues is vexing, they are neither as new, nor the applicable law as lacking, as has been argued.
This chapter takes a pragmatic approach to detention and suggests that the 1949 Geneva Conventions and the 1977 Additional Protocols, outmoded and seemingly inapplicable though they may be in some respects, offer the most thorough, humane, realistic and readily available option for determining how to treat and when to release non-state actors detained during a non-international armed conflict. This chapter proposes to cut the legal Gordian Knot of detention with a policy sword, intermingling types and applications of the law of armed conflict and conflating treatment standards from Geneva Convention III with the civilian internment and release provisions of Geneva Convention IV.
Keywords: Detention, international armed conflict, IAC, non-international armed conflict, NIAC, Geneva Convention, additional protocol, policy, prisoner of war, POW, civilian, intern, law of armed conflict, LOAC, international humanitarian law, IHL
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