Article

Taking no prisoners : the need for an additional protocol governing detention in non-international armed conflicts

Brittany R. Warren

• Military law review, Vol. 225, issue 1, 2017, p. 157-215

English

La proposition de texte pour un Protocole addionnel IV est publiée en annexe.

The current misunderstanding of a State's authority to conduct security detentions in non-international armed conflicts (NIACs) has left the state of the law fractured and unclear. This dissonance will severly hamper the United States' ability to conduct detention operations with coalition partners. In order to address the lack of clarity, the international community should clarify international humanitarian law (IHL) through an Additional Protocol to the Geneva Conventions. This new protocol would recognize States' inherent authority to conduct security detentions in NIACs. The article proceeds with a discussion of legal frameworks that apply during NIACs under both IHL and international human rights law (IHRL) and an analysis of the current debate over the authority to detain in NIACs. It concludes that IHL does, in fact, reflect an authority to detain that displaces the application of IHRL, relying on both a structural analysis of the two bodies of law and pre-Geneva understanding of State authorities during armed conflict. The article then discusses the provisions an Additional Protocol IV to the Geneva Conventions governing security detentions in NIACs should contain. The most important provisions for this treaty are procedures for legal detention reviews, as well as procedures for the transfer of detained persons to sovereign authorities. The article considers several counterarguments to a treaty-based solution to the problem of security detentions in NIAC and concludes with a proposed text for a new additional protocol.

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• Military law review / The Judge Advocate General's School, U.S. Army
• Military law review [Vol. 225, issue 1, 2017] / The Judge Advocate General's School, U.S. Army