Goodman: The Detention of Civilians in Armed Conflict

Ryan Goodman (Harvard Univ. - Law) has posted The Detention of Civilians in Armed Conflict (American Journal of International Law, forthcoming). Here's an excerpt from the introduction:

This essay is intended to shed greater light on the IHL regime that constitutes the legal background against which U.S. detention policies have been enacted and debated. Such an endeavor has special importance given the review of these issues by the Obama administration and by Congress, and the Supreme Court’s decision to grant certiorari in Al-Marri v. Pucciarelli. The central question is whether IHL prohibits the preventive detention of civilians who pose a security threat on account of their direct or indirect participation in hostilities. It bears noting, however, that the authority to detain does not depend only on the substantive criteria for detention. As Derek Jinks and I have argued elsewhere, IHL conditions the authority to detain on compliance with procedural guarantees and humane treatment of detainees. For example, a party to a conflict that is unable or unwilling to respect the strictures of common Article 3 of the Geneva Conventions for the Protection of Victims of War with regard to conditions of confinement has no authority to detain. This essay pursues a separate question, however, by focusing on the scope of authority to detain particular groups of individuals. I argue that a careful analysis of the IHL regime should distinguish four classes of individuals (across a spectrum from combatants to “innocent civilians”) and three coercive measures to restrain those actors (targeting, detaining, and prosecuting). Mapping these distinct actors and coercive measures, as well as their interconnections, helps to identify and correct existing category mistakes. Failure to do so—to appreciate and repair these persistent errors—threatens both humanitarian values and security interests in present and future conflicts.