A Needle in a Haystack? Locating the Legal Basis for Detention in Non-International Armed Conflict

Abstract

The article examines the problem of the absence of an express legal basis to detain in the law of non-international armed conflict. It considers the attempts to locate the legal basis by way of logical inference either from a putative power to kill in non-international armed conflicts or from the power to detain in international armed conflicts. It also considers teleological and practical arguments posed against the existence of a legal power to detain. It then argues that the preferred interpretation is to view the legal basis to detain as inherent in the law of non-international armed conflict. The existence of an implicit legal basis is consistent with the understandings and expectations of the drafters of Additional Protocol I, as evidenced by a close examination of the travaux préparatoires. Moreover, the post-World War II practice and some modern-day pronouncements corroborate the existence of an inherent legal basis in customary IHL. Finally, in light of the challenges posed by modern conflicts marked by the asymmetry of the parties and by the extraterritoriality of the hostilities, the law of NIAC is far more effective if it is interpreted to contain a legal power to detain than if it is not.