2016 Joint Series on International Law and Armed Conflict: Rachel VanLandingham on Procedural Guarantees in Detention


In the fifth installment of our Transatlantic Dialogue Series, Rachel VanLandingham discusses the procedural guarantees in detention. Professor VanLandingham, Lt. Col., USAF, (ret.), is an associate professor of law at Southwestern Law School in Los Angeles, California, and spent four years advising U.S. Central Command officials on detention policies in Iraq and Afghanistan. The views expressed in this article are the author's own and do not necessarily reflect those of the ICRC or the other blogs taking part in this series.

Here's a taste: 

During our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.

While detention is internationally recognized as “a necessary, lawful and legitimate”component of military operations, there remain serious legal gaps regarding how detention should be conducted in the most common type of war, those between states and non-state armed groups. While the Geneva Conventions provide robust, detailed rules regarding how and when to detain both civilians and combatants during international armed conflict (IAC), there is no equivalent for NIACs. It is in states’ best interest to remedy this gap, both to avoid repeating past gross abuses and pragmatically, because such procedures are directly linked to operational success.

The issues most relevant to procedural regulation of NIAC detention fall roughly into three categories: the legal authority to detain; standards of (reasons for) detention; and notification plus review mechanisms. First, legal authority to detain is required because depriving someone of their liberty, if not positively authorized by law, is criminal kidnapping. The source of such legal authority to detain in NIACs is controversial; it certainly seems implied by the law of armed conflict’s principles of military necessity and humanity—why would the law provide authority to kill and not detain? However, as demonstrated by the Serdar Mohammed case in the United Kingdom, one can reasonably argue that the law of armed conflict does not provide positive authority for NIAC detention and hence another source of law must be identified, such as a United Nations Security Council Resolution or domestic law. For example, detention by U.S. forces in Afghanistan is based on the 2001 Authorization to Use Military Force, as well as the above-mentioned customary law of armed conflict principles.

Read her full post over at Lawfare

Schedule of blog posts:

The joint blog series arising from the workshop follows on from our collaboration in hosting a similar series last year (see here, here and here). The Transatlantic Workshop is organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations (both directed by Dapo Akande), the Washington DC & London delegations of  International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by Bobby Chesney).

Click here for the 2015 Series.

Click here for the 2014 Series. 

For ICRC's Customary IHL Database on Deprivation of Liberty, click here