In May 2016, the ICRC’s Washington delegation, Harvard Law School’s PILAC, and the Naval War College’s Stockton Center held their inaugural joint International Humanitarian Law (IHL) workshop on a pressing issue: the future of US detention in armed conflict. About 30 experts, including practitioners and academics from the US and abroad, gathered for two days to discuss, debate and explore the legal intricacies surrounding the detention of foreign nationals during an armed conflict.
The workshop ran chronologically through issues that a state conducting extraterritorial detention might face, starting with where the authority to detain comes from (including under IHL, IHRL and domestic law), and moving to issues about the procedural guarantees that someone being detained may have, but also including debated around when detention actually begins, how someone can challenge their detention and at what time. The discussion moved into treatment and interrogation during detention, and then hotly debated issues around transfers and prosecutions, with particularly rich discussion about how other countries have handled prosecutions of non-state armed actors during non-international armed conflicts in their own territory.
The second day focused on two disparate issues: the future of detention at Guantanamo Bay, and the legality and ability of non-state armed groups to conduct detention operations. There were three possibilities for the future of detention at Guantanamo Bay that were laid out, and discussion around the feasibility of each one.
The report serves to capture, without attribution, these debates, which are legal issues facing the United States and other nations today. The answers are not clear, and there are many opinions on a variety of issues that are of concern to all those involved in armed conflict.