Article

Yes, we can : the authority to detain as customary international law

Robert E. Barnsby

• Military law review, Vol. 202, Winter 2009, p. 53-90

English

This article argues that, regardless of the type of conflict in which states are engaged, the authority to detain individuals rises to the level of Customary Internationa Law (CIL). It lays out a comprehensive test to determine whether the authority to detain rises to the level of CIL. This test includes not only the typical "state practice" and "opinio juris" prongs of CIL, but also lesser known - yet equally important - aspects of CIL, including "specially affected" states (describing states with more practice than others in a particular aspect of armed conflict) and "permissive rules" (describing state actions that are allowed, but not required, in armed conflict).

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• Military law review / The Judge Advocate General's School, U.S. Army
• Military law review [Vol. 202, Winter 2009] / The Judge Advocate General's School, U.S. Army