Detention of Non-State Actors engaged in Hostilities: The Future Law explores legal dilemmas facing detention management during military missions overseas. Armed forces increasingly find themselves facing non-international armed conflict with non-state actors, such as insurgents, terrorists or other civilians, whom they might be permitted to kill or capture in some circumstances.
The book considers the legal powers of military forces to apprehend non-State actors and to hold them in ongoing detention or to transfer them to judicial authorities for prosecution. It deals with both theoretical approaches and practical case studies concerning management and treatment of detainees. It concludes by synthesizing the options and delivering a detailed set of guidelines that are proposed as emerging norms for the detention of non-state actors in an armed conflict.
Gregory Rose is Professor of Law at the University of Wollongong, Australia. He publishes widely on counterterrorism and on environment in international law and is author of Following the Proceeds of Environmental Crime: Forests Fish and Filthy Lucre (Routledge, 2014).
Bruce Oswald CSC Ph.D. (2010) is Director of the Asia Pacific Centre for Military Law at the University of Melbourne School of Law, where he is Associate Professor. He is co-author of Documents on the Law of UN Peace Operations (OUP, 2010). He publishes widely on matters concerning military operations law.
i Author Index
1. Introduction Gregory Rose and Bruce Oswald;
Perspectives 2. Convergence of Norms across the Spectrum of Armed Conflicts: International Humanitarian and Human Rights Law Emily Crawford;
3. The Limitations of Legal Reasoning: Negotiating the Relationships between International Humanitarian Law and Human Rights Law in Detention Situations Sarah McCosker;
4. The Convergence of Violence around a Norm: Direct Participation in Hostilities and Its Significance for Detention Standards in Non-International Armed Conflict Jody Prescott;
5. Reimagining the Wheel: Detention and Release of Non-State Actors under the Geneva Conventions Chris Jenks;
Case Studies 6. The Coalition Provisional Authority for Iraq 2004-2008: Transitioning From Administrative Internment to Criminal Justice Based Detention Operations Angeline Lewis;
7. Australian Detention Operations in Afghanistan: Practices and Challenges Paul Cronan;
8. Detention in British International Military Operations Linda Dann;
9. An Indian Perspective on Detention of Non-State Actors Engaged in Hostilities B.V. Kumar;
10. Preventive Detention for National Security Purposes: The Three Facets of the Israeli Experience Dvir Saar and Ben Wahlhaus;
11. U.S. Detention of Terrorists in the 21st Century Bill Lietzau;
12. NATO Responsibility for Detention Mark Dakers;
Formulating Guidance 13. Information and Notification concerning Detention in Non-International Armed Conflicts Bruce Oswald;
14. Copenhagen Process Principles and Guidelines for Detention - Legal and Political Challenges Thomas Winkler;
15. Detention in United Nations Peace Operations Katarina Grenfell;
Recommendations 16. Detention of Non-State Actors Engaged in Hostilities – Recommendations for Future Law Gregory Rose;
Appendices Geneva Conventions, Common Article 3;
Geneva Convention III, Article 4;
Geneva Convention IV, Articles 5, 42, 43;
Additional Protocol I – Article 75;
Additional Protocol II – Articles 4, 5;
ICRC – Resolution and Report on Strengthening Legal Protection for Victims of Armed Conflicts: Introduction by Monica Silverwood, ICRC;
All interested in the humanitarian law governing the detention by military forces of persons who are engaged in hostilities but who fall outside of the conventions on rights of POWs.