The detention of civilians in armed conflict / Ryan Goodman
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Article
Title:
The detention of civilians in armed conflict
Author zone:
Ryan Goodman
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Languages:
English
Abstract:
The Bush administration’s detention policy concerning individuals involved in the armed conflict between the U.S. and Al Qaeda has been shrouded in confusion and controversy. The legality of detaining civilians who do not directly participate in hostilities, also known as ‘indirect participants’, has been particularly problematic. The author argues that the confusion is due to misconceptions regarding the application of IHL by both proponents and opponents of U.S. detention policy. The author analyzes the contemporary IHL regime, distinguishing four categories of actors and three coercive measures to restrain these actors. The author identifies three types of category mistakes made in the debate. First, the U.S. government conflates indirect participants with enemy combatants, though these are in fact two distinct categories of actors. Second, opponents of the policy fail to recognize that these two categories are both lawfully subject to detention under IHL. Third, both proponents and opponents of the policy conflate the power to detain with another type of coercive power—the power to prosecute. After examining the consequences of these category mistakes, the paper concludes by urging the Obama administration and American jurists to align U.S. policy and legal discourse with the international legal framework. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]
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