The complexity of detention in non-international armed conflicts - Interview with Gabor Rona

While detention in armed conflicts between states is regulated in detail under international humanitarian law, the situation in non-international armed conflicts is less clear. To help bring clarity to which rules apply, on 15 November, in the 20^th Online Learning Session on Humanitarian Law and Policy, Professor Gabor Rona from Cardozo Law School will present on the topic of detention in non-international armed conflicts.

Last week, we had the opportunity to ask him a few questions regarding the current relevance of this topic for humanitarian workers and why the situation in non-international armed conflicts is different from conflicts between states.

Why should humanitarian practitioners have an understanding of the legal frameworks that regulate detention in armed conflict?

Detention in armed conflict is governed by different rules of international law than those that apply in peacetime. Humanitarians interact with public authorities, with armed groups, with detained individuals and their families, and with the larger community affected by detention of individuals. In those interactions, humanitarians must be familiar with the applicable legal frameworks – international humanitarian law (IHL), international human rights law (IHRL), and domestic law – and their details in order to make practical decisions about how best to use their resources. Should the focus merely be on conditions of detention such as the requirement of humane treatment and maintenance of family ties, or should it also be on the legality of the detention itself - that is, the grounds and procedures for detention? Knowledge of applicable law is essential to making these decisions and to effectively use the law for humanitarian ends.

Why does the regulation of detention in non-international armed conflicts (NIACs) and “internationalized NIACs” become more complex?

In wars between states (international armed conflict, or IAC), relatively precise provisions of the Geneva Conventions establish grounds and procedures for detention and obligations of detaining authorities to provide humane treatment of detainees. However, in wars that involve states fighting non-state armed groups or non-state armed groups fighting each other (non-international armed conflict, or NIAC) the Geneva Conventions say little about required conditions of detention and even less about grounds and procedures for detention. This legal vacuum of IHL has created space for greater recourse to the rules of IHRL, which is more detailed on NIAC detention than is IHL. However, there is much room for disagreement about whether the IHL of NIAC authorizes detention and about whether and how IHRL applies to situations of armed conflict. In addition, where a NIAC is not purely internal (e.g., the U.S. fighting the Taliban or Al Qaeda in Afghanistan) there is dispute about whether a state's international human rights obligations apply at all to its conduct abroad.

Are there any recent developments that you think will have an impact on the regulation of detention?

This is a very fluid area in both fact and law. To the extent that the U.S.'s global counter-terrorism operations can be considered armed conflict (I refuse to dignify the term "war on terror"), criticism of overly-expansive targeted killing policy and practice creates pressure to detain rather than kill. Yet, the legal framework is uncertain for detention abroad that is outside the structure of criminal justice and its attendant rights of detained individuals to due process of law. In the meantime, tensions across the Atlantic continue to increase as European and international courts take an expansive view of the role of human rights law, while the U.S. remains consistently opposed to the application of human rights law either to NIAC detention, or for that matter, to any conduct of the U.S. beyond its own borders.

Could detention in NIACs be authorized through customary law? Are states interested in further developing IHL rules in NIACs, as it may reinforce the status of non-state armed groups? Learn more about this topic and get some answers to all these questions by joining Professor Gabor Rona on 15 November in the online session The legal dilemma of detention in non-international armed conflicts.

Interview by Liz Arnanz