Bellinger & Padmanabhan: Four Challenges to the Geneva Conventions and Other Existing Law Posed by Detention Operations in Contemporary Conflicts

John Bellinger III (Arnold & Porter) & Vijay M. Padmanabhan (Yeshiva Univ. - Cardozo School of Law) have posted Four Challenges to the Geneva Conventions and Other Existing Law Posed by Detention Operations in Contemporary Conflicts. Here's the abstract:

Since the 9/11 attacks, States have been scrambling to find legal answers to difficult questions surrounding the detention of members of non-State groups. Four questions in particular have proven vexing to States: (1) who is subject to detention; (2) what process must the State provide to those detained; (3) when does the right of the State to detain terminate; and (4) what legal obligations do States have in connection with repatriating detainees at the end of the conflict?

Nearly nine years since 9/11 two factors have prevented development of the law on these questions. First, some States, international organizations, and NGOs continue to insist that existing law adequately answers these questions, hampering efforts to develop new law. Second, where there is agreement that new law is needed, disagreements about how to fill the gaps has limited progress.

This Article crystallizes the existing state of law to create the foundation for development of new law to fill existing gaps. The first objective is to demonstrate that existing law inadequately answers the questions posed. The Article begins by demonstrating why the law of non-international armed conflict, the generally applicable legal regime for armed conflicts between States and non-State groups, does not provide clear answers to these questions, creating a legal gap. The Article then explains why other legal regimes - international humanitarian law for international armed conflict, municipal law and international human rights law - also fail to fill these gaps at present.

The Article’s second objective is to identify areas of convergence on these four questions that may form the basis for future legal development. The resistance of many to the identification of gaps in the law is the legitimate fear that States will abuse these gaps to engage in policies inconsistent with the spirit of international law. Immediate work on development of new law may ameliorate these fears. The Article also suggests additional considerations that we believe should influence future lawmaking. While a new treaty regime may be the ideal vehicle for development of new law, the Article recognizes that agreement on a new treaty is unlikely, and proposes an agreement on common principles by like-minded States as an interim step.