Administrative Detention in Armed Conflict

Abstract

Treaties long have recognized that a state may detain without trial not only opposing armed forces, but also civilians and others who pose threats to its security. While the procedural rules for administrative detention in international armed conflict are reasonably robust, only a very limited set of treaty rules apply to administrative detention in noninternational armed conflicts. This article examines the treaty rules governing detention procedures in international and non-international conflicts. It then analyzes realworld examples of administrative detention by multi-national forces and individual states. The article concludes that states should, as a matter of policy, apply several key principles drawn from treaties governing international armed conflict to all administrative detentions. These rules impose a high standard for a state to initially detain a person, require the state to immediately review that detention, permit the detainee to appeal the detention decision, require the state to review the detention periodically, and obligate the state to release the detainee when the reasons for his detention have ceased. A state also should inform a detainee why it has detained him. The article argues that these core procedures, drawn from the Fourth Geneva Convention and Article 75 of Additional Protocol I, are battle-tested and that adopting such baseline rules as matter of clearlystated policy would: ensure that all states strike the proper balance between national security and personal liberty; let states avoid answering hard questions about the type of armed conflicts they are fighting; and might facilitate multi-national operations among allies with different detainee policies.