Detention of Civilians on Military Operations: Reasons for and Challenges to Developing a Special Law of Detention

By Oswald, Bruce | Melbourne University Law Review, August 2008 | Go to article overview

Detention of Civilians on Military Operations: Reasons for and Challenges to Developing a Special Law of Detention


Oswald, Bruce, Melbourne University Law Review


[The taking and handling of civilian detainees during contemporary military operations is increasingly subjected to political, media and judicial scrutiny. This article argues that the most effective and efficient means of ensuring greater certainty, consistency and clarity in the identification and application of appropriate and relevant norms for dealing with detainees is to formalise those norms in a 'special legal regime'. It is only through increased formalisation and systematisation of legal principles, rules and standards that the appropriate balance will be achieved in determining the rights and obligations of both the civilian population and military forces. The author concludes by suggesting a number of principles that should form the basis of some fundamental norms required for this 'special legal regime '.]

 
CONTENTS 
 
  I Introduction 
 II The Military and Political Contexts of Detention 
    A The Military Context 
    B The Political Context 
III The Legal Framework 
    A Case Study and Hypotheticals 
    B Special Legal Regimes 
    C Issues in Establishing a Special Legal Regime for Detention 
      1 Siting the Special Legal Regime 
      2 The Lodestar 
      3 Settling Norms 
      4 Institutional Responsibility 
      5 Binding Nature of the Regime 
      6 Fundamental Norms 
 IV Conclusion 

I INTRODUCTION

It is accepted that on most military operations military forces may be required to detain civilians (1) posing a threat to the security and safety of the force or the general population. However, the detention of civilians during military operations is increasingly subjected to political, media and judicial scrutiny. (2) Issues currently receiving attention include the law applicable to detention, the legal basis for taking detainees, the treatment of those detained, the transfer (3) and handover (4) of detainees, and the accountability of military personnel. (5) As a result of this scrutiny, there is a growing demand for greater certainty, consistency and clarity in the norms applicable to dealing with detainees, so that military operations can be conducted effectively and efficiently while dealing with the rights and obligations of civilians affected by the operation, as well as meeting the obligations of the military force conducting the operation.

In November 2007, for example, John Bellinger III, Legal Adviser for the US State Department, argued that the Geneva Conventions (6)--the law traditionally used by military forces to deal with detaining individuals during military operations--do not provide sufficient guidance to those countries dealing with detainees in the course of the 'War against Terror'. He stated that:

 
   The United States is firmly committed to the law that applies. 
   We're also committed to working with other countries around the 
   world to develop new legal norms in cases where existing law does 
   not give one the answers. But what we do think is problematic is to 
   simply suggest that the Geneva Conventions provide all of the 
   answers in fighting international terrorism, and that countries 
   simply need to follow the Geneva Conventions and that is the end of 
   the matter. (7) 

This article does not argue that the relevant existing legal regimes should be abandoned. It does, however, seek to contribute to the search for greater certainty, consistency and clarity in the norms applicable to detention by arguing that they be formalised and systematised.

The article begins by examining some key military and political issues that arise when dealing with detainees. It then considers whether the legal regimes that currently regulate the taking and handling of detainees adequately manage the military and political imperatives and expectations that arise during contemporary military operations. The principles, rules and standards relating to detention are fragmented.

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Detention of Civilians on Military Operations: Reasons for and Challenges to Developing a Special Law of Detention
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