One of the most significant activities for parties involved in armed conflict, according to Deeks (2009), is administrative detention (p. 403). In this regard, a state detains an opponent’s armed forces during the armed conflict. When this type of armed conflict detention arises, international treaties come into play to govern the rules of warfare. Treaties allow a state to detain without trial both armed combatants as well as civilians who present danger to its security. While these treaties, such as the Geneva Convention, provide robust provisions for international armed conflict detentions, they have very few on non-international conflict.
Ambiguity in International Law
International law’s gaps when it comes to the treatment of unlawful combatants, that is, those not in an international armed conflict may present serious implications for U.S. policy and procedure. One example of this ambiguity is about the length of detentions. Deeks (2009) observes that international law, notably the Third Geneva Convention, ambiguously permits a state to detain belligerents until hostilities cease (p. 410). This ambiguity has some implications for U.S. policies and procedures. First, it allows the government to detain enemy combatants without trial. In this regard, the American government may choose to detain such enemy combatants longer than necessary because the law is not clear on it. Second, detainees may end up being held indefinitely because no law states that they should be released as long as hostilities continue.
Another example of a gap in international law is with regards to the legal standards of internment. According to Wilke (2007), the Fourth Geneva Convention states that internment should only be used only in exceptional circumstances (p. 351). However, it does not define what exceptional circumstances are in this situation. The effect of this gap is that states may use their laws and procedures to determine when to use internment. In this sense, the U.S. may have the right to consider finding and interpreting international law. The U.S. can develop its standard for determining internment. Second, the ambiguity concerning internment means that it would be tough to determine whether states are taking great care to ensure that it is only those who meet the high standard are the ones detained.
Treaties such as the Geneva Convention have very firm provisions when it comes to international armed conflict. However, with regards to non-international armed conflict, the rules of international law are not exhaustive. Casey and Rivkin (2006) note that even those provisions of treaty law that seek to govern non-international armed conflict are not clear enough and much is left to interpretation by individual states (p. 6). The unclear provisions on the length of detention as well as the legal standard for internment give the U.S. authorities some discretion such that they can develop their standards for internment and detain armed forces indefinitely.
Casey, L. A., & Rivkin, D. B. (2006). International law and the nation-state at the
U.N.: A guide for U.S. policymakers. Retrieved from http://www.heritage.org/Research/Reports/2006/08/International-Law-and-the-Nation-State-at-the-UN-A-Guide-for-US-Policymakers.
Deeks, A. S. (2009). Administrative detention in armed conflict. Case Western
Reserve Journal of International Law, 40(3), p. 403–410.
Wilke, C. (2007). The war v. justice: Terrorism cases, enemy combatants, and
political justice in U.S. courts. In Mahan, S. & Griset, P.L., Terrorism in Perspective. (p. 351).
“I enjoyed reading your post and learning from your perspective. You noted, “Treaties allow a state to detain without trial both armed combatants as well as civilians who present danger to its security.” Immediately after 9/11 the Bush Administration passed the US Patriot Act which gave an extension of authority to the Department of Justice (DOJ) and Immigration and Naturalization Service (INS) to assist with the detention of terrorist (Mahan & Griset, 2009). This legislation failed to give guidelines regarding the treatment, detention and judicial rights, etc. of this class of individuals. Mahan & Griset expressed due to the events of 9/11 political leaders supported the new law but scholars have expressed concern about the amount of authority allotted to government officials. For example, the new law permitted the unlawful detention of terrorist, human and civil rights violations (Mahan & Griset, 2009). The authors postulated many argued this class of citizens-terrorist should not be allotted legal rights under the law due to their transgressions. Although treaties allow detain it does not grant governance of duty for the ill-treatment, inhumane treatment and even death of terrorist. Even if is in the name of national security.”
Mahan, S. & Griset, P.L., (2013) Terrorism in Perspective (3rd ed.). (pp. 342-363)
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