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In Search of Legal Grounds to Detain for Armed Groups

In: Journal of International Humanitarian Legal Studies
Author:
Nelleke van Amstel nelleke.vanamstel@adh-geneve.ch

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Arbitrary deprivation of liberty is prohibited by international law; hence even during armed conflict internment of adversaries must have a legal basis in international humanitarian law or national law. The law of non-international armed conflict contains an inherent power to intern. Nevertheless, a further legal source is needed to ensure detention is not arbitrary, outlining grounds and procedure of detention. Such legal grounds do not exist for internment by organised armed groups. This article will outline the possible consequences for members of armed groups when interning without a further legal basis, thus in violation of the prohibition of arbitrary detention, and will subsequently suggest solutions to overcome the imbalance between obligations imposed upon and instruments granted to these actors.

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