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 real-world 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 clearly-stated 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.
When a state is engaged in an armed conflict, one of the most important activities that the state may undertake is detention. The most familiar type of detention during armed conflict is the detention by one state of its opponent's armed forces: when possible, a state's armed forces will detain their opponents on the battlefield so as to prevent those fighters from continuing to take up arms. When this kind of detention occurs during armed conflicts between states, the 1949 Geneva Convention (III) Relative to the Treatment of Prisoners of War (Third Geneva Convention) generally provides the rules for such detentions. (1)
However, there are a number of other situations in which states engaged in armed conflict may detain persons without necessarily bringing criminal charges against them. (2) This article refers to this type of detention as "administrative detention." First, in international armed conflict, a state may detain certain civilians who appear to pose a security threat to that state. The 1949 Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention) expressly contemplates that states will undertake such detentions of civilians. Second, in non-international armed conflict, the state may detain individuals engaged in hostile acts against it, such as armed rebels and individuals that the state deems a serious threat to security. (3) Third, individuals detained as belligerents in international armed conflict--but who are not entitled to prisoner of war status--may face detention without criminal charge until the end of hostilities. (4)
A limited set of treaty rules prescribes the procedures a state must follow in determining when, how, and for how long it may administratively detain individuals during armed conflict. While the procedural rules for administrative detention contained in the Fourth Geneva Convention--which apply to "protected persons" in international armed conflict--are reasonably robust, only a very limited set of treaty rules applies to administrative detention in non-international armed conflicts. (5) Rather, detention in non-international armed conflict is governed almost exclusively by a state's domestic law. (6) Given the dearth of rules in non-international armed conflict, a lawyer for the International Committee of the Red Cross (ICRC) has proposed a set of procedural principles that states should apply to all cases of administrative detention, whether that detention occurs during armed conflict (either international or non-international) or outside of armed conflict entirely. (7)
The ICRC paper, which contains some fifteen recommended principles and safeguards, is relatively ambitious in the rules it would have states apply to administrative detention, especially when that detention occurs during an armed conflict. For example, the paper urges that administrative detainees be provided with legal representation, and that detainees and their legal representatives be able to attend review proceedings in person. (8) While this might be desirable, states that detain thousands of individuals at a time on a battlefield would find these requirements very difficult to meet.
This article concludes that the core procedures contained in the Fourth Geneva Convention are battle-tested and serve as an excellent basis for administrative detention during all types of armed conflict. These procedures impose a high standard for a state to initially detain, require the state to immediately review that detention, permit the detainee to appeal the initial 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. Coupled with a requirement to inform a detainee of the reasons for his detention, this collection of procedures would offer a strong and operationally-sustainable standard for administrative detention. Adopting such baseline rules (as matter of clearly-stated policy, if not legal obligation) would ensure that all states strike the proper balance between national security and personal liberty, would let states avoid answering hard questions about the type of armed conflicts they are fighting, and might sons," but that category encompasses virtually all civilians in a state's hands during international armed conflict or occupation, either in occupied territory or the territory of a party to the conflict. Id. at art. 4. facilitate multi-national operations among allies with different detainee policies.
Part II of this article describes the treaty rules that govern administrative detention during armed conflict. Part III explores real world examples of administrative detention during armed conflict both by international forces and by individual states, without assessing whether any particular practices have become customary international law. Part IV explains why the core principles of the Fourth Geneva Convention are an appropriate source of rules for administrative detention in all types of armed conflict, and raises certain questions that require further exploration.
TREATY RULES GOVERNING ADMINISTRATIVE DETENTION
International Armed Conflict
The most robust set of treaty rules governing administrative detention is found in treaties that apply to international armed conflict. The Fourth Geneva Convention and the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Additional Protocol I) establish rules for administrative detention in international armed conflict for the parties to those treaties. (9) Various articles in the Fourth Geneva Convention establish the standards for administratively detaining and releasing an individual; a requirement for review of and appeal from the initial detention decision; and a mandated periodic reconsideration of the state's decision to detain. Slightly different rules appear in Articles 42 and 43 of the Fourth Convention, which govern detention in the territory of a party to the conflict, and in Article 78, which governs detention in occupied territory. Article 75 of Additional Protocol I adds a requirement that a state advise the detained individual of the reasons for his detention.
Fourth Geneva Convention
a. Standard for detention
The Fourth Geneva Convention establishes a high standard for detaining a civilian, whether in occupied territory or in the territory of a party to the conflict. For aliens in the territory of a party to the conflict, a civilian can be interned or placed in assigned residence "only if the security of the Detaining Power makes it absolutely necessary." (10) Pictet's Commentary (Commentary) to Article 42 explains that states parties serve as the arbiters of the type of activity that constitutes a security threat, but the Commentary also offers several examples that would meet that standard. The Commentary states:
It did not seem possible to define the expression "security of the State" in a more concrete fashion. It is thus left very largely to Governments to decide the measure of activity prejudicial to the internal or external security of the State which justifies internment or assigned residence. Subversive activity carried on inside the territory of a Party to the conflict or actions which are of direct assistance to an enemy Power both threaten the security of the country; a belligerent may intern people or place them in assigned residence if it has serious and legitimate reason to think that they are members of organizations whose object is to cause disturbances, or that they may seriously prejudice its security by other means, such as sabotage or espionage.... (11) The rule is slightly different for occupying powers in occupied territory. In that case, "if the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment." (12) The Commentary to Article 78 explains that this article sets a higher standard than Article 43 for a state to detain a person: "In occupied territories the internment of protected persons...