Chapter

Reimagining the wheel : detention and release of non-state actors under the Geneva Conventions

Chris Jenks

Detention of non-state actors engaged in hostilities : the future law

Leiden ; Boston : Brill Nijhoff, 2016

p. 93-116

English

Bibliographie : p. 113-116

After more than a decade of sustained armed conflict, the international community continues to struggle with the issues posed by non-State actors participating in hostilities. This chapter focuses on detention of non-State actors during armed conflict. It argues that even though the 1949 Geneva Conventions and their 1977 Additional Protocols are outmoded and seemingly inapplicable in some respect, they nevertheless offer the most thorough, humane, realistic and readily available option for determining how to treat – and when to release – non-State actors detained during armed conflict. It first acknowledges some of the main challenges to the application of the law governing international armed conflict (IAC) to situations of non-international armed conflict (NIAC). Then, it argues that there are considerable advantages of tethering a detention regime to the world’s most ratified treaties which form the basis of how militaries around the world train to conduct detention operations. From there, the chapter briefly discusses salient aspects of the detention regimes both for prisoners of war and civilian security threats and concludes that applying IAC rules to NIAC, and conflating status-based detention from Geneva Convention III with conduct-based detention review from Geneva Convention IV would provide more clarity and transparency and possibly even ever-elusive legitimacy.

• Detention of non-state actors engaged in hostilities : the future law / ed. by Gregory Rose, Bruce Oswald