Article

A needle in a haystack ? : locating the legal basis for detention in non-international armed conflict

by Kubo Macák

• Israel yearbook on human rights, Vol. 45, 2015, p. 87-106

English

Macák examines whether there is a legal basis for detention in the law of non-international armed conflicts (NIACs) despite there not being an express authorization to detain in the treaty law applicable in NIACs. Drawing on provisions regulating detention in international armed conflicts (IACs), Macák considers whether the legal basis for detention in NIACs can be inferred from the power to detain in IACs or, alternatively, from the putative power to kill in NIACs. He answers this in the negative, as both sources allow for significant gaps in the regulation of detention in NIACs. He argues that the legal basis for detention in NIACs is implicit in international humanitarian law (IHL) because: (1) this follows the understandings and expectations of the drafters of Additional Protocol II, revealed through the travaux préparatoires; (2) post-WWII practice and some modern-day pronouncements support an inherent legal basis for detention in customary IHL and; (3) the law of NIACs is more effective when it is interpreted as containing a legal power to detain, considering the challenges posed by modern conflicts. Macák argues that while a multilateral treaty could ultimately rectify the issue of detention in NIACs, looking to existing IHL immediately solves the issue. [Summary by students at the University of Toronto, Faculty of Law (IHRP)]

• Israel yearbook on human rights / publ. under the auspices of the Faculty of Law, Tel Aviv University
• Israel yearbook on human rights [Vol. 45, 2015] / publ. under the auspices of the Faculty of Law, Tel Aviv University