Detention in International and Non-International Armed Conflict

by

Nicholas Tsagourias

• LAST REVIEWED: 30 March 2017
• LAST MODIFIED: 30 March 2017
• DOI: 10.1093/obo/9780199796953-0149

Introduction

International humanitarian law contains rules regulating detention during an armed conflict. They refer to the grounds for detention, the procedures governing detention, the conditions of detention, and the protections offered to those detained for security or law enforcement purposes. In an international armed conflict, detainees may be combatants who fall into the power of the adverse party or civilians of the adverse party. The former are granted prisoner-of-war status. In non-international armed conflicts, the legal regime on detention is less developed. The gaps in legal regulation became apparent after 2001 in the context of the fight against terrorism. Detention during armed conflict differs from peacetime detention, most notably, because it can be ordered by the executive as an administrative measure for reasons of security (security or administrative detention), while those suspected or convicted for a criminal offence related to the armed conflict may also be detained for law enforcement purposes (law enforcement detention). That notwithstanding, the prohibition of arbitrary detention is part of both international humanitarian and human rights law.

General Overviews

Many publications on international humanitarian law deal with detention and the applicable rules. Dinstein 2016 examines the rules applicable to prisoners of war and to unlawful combatants as does Crawford and Pert 2015, which also deals with detention in non-international armed conflicts. Henckaerts and Doswald-Beck 2005 focuses on the treatment of persons deprived of their liberty in an armed conflict from the customary international law perspective. Sivakumaran 2012 deals with detention in non-international armed conflict. D’Aspremont and Hemptinne 2012 provides an overview of the rules and protections applied to prisoners of war and to civilian detainees.

• Crawford, Emily, and Alison Pert. International Humanitarian Law. Cambridge, UK: Cambridge University Press, 2015.

  It examines the protections afforded to prisoners of war and the rules applicable to detained civilians in non-international armed conflict as well as the rules applicable to unlawful combatants.

• d’Aspremont, Jean, and Jérôme de Hemptinne. Droit International Humanitaire. Paris: Editions A. Pedone, 2012.

  A chapter is devoted to the protections afforded to prisoners of war and to civilian detainees in international and non-international armed conflict.

• Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict. 3d ed. Cambridge, UK: Cambridge University Press, 2016.

  DOI: 10.1017/CBO9781316389591

  A chapter in the book examines the rules that apply to prisoners of war and to the detention of “unlawful combatants.”

• Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Humanitarian Law. Vol. 1. Cambridge, UK: Cambridge University Press, 2005.

  This publication identifies the customary rules concerning the grounds for detention and the conditions of detention during international and non-international armed conflicts.

• Sivakumaran, Sandesh. The Law of Non-international Armed Conflict. Oxford: Oxford University Press, 2012.

  DOI: 10.1093/law/9780199239795.001.0001

  The book deals with detention in the section concerning the protection of civilians and those hors de combat in non-international armed conflicts.