Detention in non-international armed conflict

305 Pages·2016·2.62 MB·English

by  Hill-Cawthorne

OXFORD MONOGRAPHS IN INTERNATIONAL
HUMANITARIAN AND CRIMINAL LAW
General Editors
PAOLA GAETA
Director of the Geneva Academy of International Humanitarian Law and Human Rights
SALVATORE ZAPPALÀ
Professor of International Law, University of Catania
Detention in Non- International
Armed Conflict
OXFORD MONOGRAPHS IN INTERNATIONAL
HUMANITARIAN AND CRIMINAL LAW
The aim of this series is to publish original and innovative books on funda-
mental, topical, or cutting- edge issues in international humanitarian law and
international criminal justice. The primary purpose of the series is to publish
books which, in addition to critically surveying existing law, also suggest
new avenues for improving the law.
Special attention will be given to works by young scholars.
Detention in
Non- International
Armed Conflict
LAWRENCE HILL-C AWTHORNE
1
1
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
© Lawrence Hill- Cawthorne 2016
The moral rights of the author have been asserted
First Edition published in 2016
Impression: 1
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British Library Cataloguing in Publication Data
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Library of Congress Control Number: 2015956634
ISBN 978–0 –1 9–8 74992–9
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Links to third party websites are provided by Oxford in good faith and
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contained in any third party website referenced in this work.
Series Editors’ Preface
This book, Detention in Non- International Armed Conflict by Lawrence Hill-
Cawthorne, is the second step in 2016 of the ‘cultural project’ that is the estab-
lishment of the Series of Oxford Monographs in International Humanitarian and
Criminal Law. The main goal of the series is to broaden and deepen the analysis
in these two areas of law through the publication of thought provoking publi-
cations. Even in an area of law as well researched and studied as international
humanitarian law (IHL), it is nevertheless necessary to continually confront new
challenges linked to the changing realities of armed conflicts, with a particu-
lar focus on the renewed relevance of this body of law in a world increasingly
torn apart by armed violence (with issues revolving around asymmetric warfare,
drone wars, detentions, and so forth). On the other hand, as far as international
criminal law is concerned, there is a need for further studies in an area of law
which has boomed after the establishment of the UN ad hoc tribunals in the
1990s and the International Criminal Court (ICC) in 1998; this has become a
“new” area of law which has now entered a stage of maturity that requires schol-
ars today, more than ever, to follow the operation of international institutions
with a critical eye.
The main idea underlying this series has always been to support publica-
tions from younger scholars that address topical issues in a critical and origi-
nal manner.
Detention in Non- International Armed Conflict is paradigmatic in this respect.
It is an excellent book that tackles a topical issue. We agreed with enthusiasm to
publish it in this series because it is a solid and in- depth analysis of a topic of great
relevance in current international affairs, which poses unresolved challenges; and
it is the result of the research work of a promising scholar, which makes it even
more coherent with the overall project of the series.
The author offers his approach in a constructive manner based on solid legal
work. We are sure it will contribute to the debate in this area. The book empha-
sizes the status of traditional international law in assessing detention in the course
of armed conflict, pointing out the traditional differences between the law of
international and non- international armed conflict. It tackles the gaps in regula-
tion and analyzes the problems in the light of recent practice, including notably
the conflicts in Iraq and Afghanistan, as well as those in Colombia, Sri Lanka,
and Nepal.
The book examines the procedural guarantees for detainees in armed conflicts,
examining both IHL and international human rights law, in search of a construc-
tive way to analyze the relationship between the two bodies of law. It is confirmed
that certain (minimal) guarantees must be applied in any case, confirming that
vi Series Editors’ Preface
detention in non- international armed conflict is not unregulated by international
law. The book is additionally to be praised for offering concrete ideas on how to
develop the law in this area, an aspect that we found particularly in the spirit of
the initiator of this series.
The editors
Paola Gaeta and Salvatore Zappala
Acknowledgements
As is so often the case, this book began life as a doctoral thesis, which was submit-
ted to the Law Faculty at the University of Oxford in February 2014. The process
of writing a doctorate is a journey marked with hugely diverging emotions, rang-
ing from great satisfaction and enjoyment to extraordinary stress and anxiety.
The final thesis is, in a way, just a small part of this process, a roadmap of one’s
personal and academic development. Support is essential if one is to get through
this process. I was extremely fortunate during my DPhil to have as my supervisor
and mentor Professor Dapo Akande, who provided excellent support and advice,
reading not only lengthy, and no doubt often rambling, early drafts of chapters
of the thesis, but also drafts of articles and conference abstracts. It was Dapo who
first introduced me to the topic of this book, and it is through discussing these
issues with him that the ideas found here developed. It is only really now, when
I appreciate the great pressures on an academic’s time, that I realize just how gen-
erous Dapo was in giving his, and for that I am truly grateful.
I was also very fortunate to have Professors Guy Goodwin- Gill and Sandesh
Sivakumaran as my DPhil examiners. The viva, though tough and challenging,
was a considerably rewarding experience as a result of their deep engagement with
the thesis. Their questions and comments forced me to build upon the thesis for
the book and have, as a result, strengthened it.
The journey of writing a doctoral thesis can, if one is not careful, quite easily
become an isolating and lonely experience. I have a lot of people to thank, for
ensuring that this was not the case for me. First are my closest friends from home,
David, Matthew, and Ric, who throughout my life have provided the kind of
nourishment of the soul that only close friends can. Next are the friends I made in
Oxford. Particular mention should be made of Eirik Bjorge, Seth Estrin, Monic
Gupta, Kubo Mačák, Greg Messenger, Martins Paparinskis, and Ruvi Ziegler.
Moreover, the Oxford public international law community provided a wonderful
setting for research students. Weekly research seminars led by Professors Vaughan
Lowe and Guy Goodwin- Gill offered a great place not just for intellectual devel-
opment but also for meeting other research students who would quickly become
close friends. Vaughan and Sally Lowe added to this with their great BBQs for
students and staff in public international law. It is these things that made this
journey so fulfilling and enjoyable. Finally, at Merton College, Professor Jennifer
Payne and Mindy Chen- Wishart offered extraordinary support and guidance
throughout my postgraduate studies, and I am extremely grateful to them.
I had the enormous privilege of funding throughout the DPhil from the Arts
and Humanities Research Council (AHRC). Needless to say, it simply would not
have been possible to work on this project for four years without this generous sup-
port. The AHRC also kindly granted me further funding to take up a four- month
viii Acknowledgements
fellowship at the Kluge Center in the Library of Congress, Washington, DC,
where I was able to build upon my research and discuss the project with policy-
makers. It was in Washington that I met a number of fellow researchers that have
become close friends of mine, in particular Patrick Andelic, Kevin Crosby, Pete
Mills, Iain Rowley, and Peter West- Oram.
Of course, the final product of the research that is captured in these pages is a
result of the brilliant support I have had from OUP, and I must especially thank
Emma Endean and Merel Alstein for their help and guidance along the way. The
reviewers of my original manuscript must also be thanked for their thoughtful
and constructive comments.
The final words of thanks must, of course, go to my family, for it is they that
have throughout my life offered me comfort and unwavering support. My parents,
Tina and Tony, and my step- parents, Peter and Sue, have always encouraged me
to find my own path in life and pursue it without fear, whilst always remembering
to value the truly important things. I must not fail to mention my grandparents,
June, David, Bill, Daphne, and James, and my two brothers, Josh and Grant, for
each has helped and influenced me in significant ways. Teresa, for proof- reading
the entirety of my doctoral thesis, and Averil, for being such a welcoming and
kind host when I was in India writing part of the thesis, have also helped me
more than they could imagine in completing this research. Finally, I must thank
my wife and best friend, Anne- Marie. If completing a doctoral thesis is challeng-
ing, being the person on whom you rely when doing so is far more challenging.
Writing a doctoral thesis is about as far from a 9 to 5 job as one can get, and the
book then extended this for a further nine months. Yet at every point along the
way, Anne- Marie has supported me without reservation and, just as importantly,
kept me grounded and reminded me that there is far more to life than work alone.
It is to her, and my whole family, that this book is dedicated.
Table of Contents
Tables of Cases  xv
Tables of Legislation  xxiii
Introduction  1
PART I. CONTEXT
1. The Distinction between International and Non- International
Armed Conflicts  11
PART II. INTERNATIONAL
HUMANITARIAN LAW
2. Internment in International Armed Conflict under IHL  33
3. Internment in Non- International Armed Conflict under IHL  66
PART III. INTERNATIONAL
HUMAN RIGHTS LAW
4. Detention under IHRL 111
5. Detention and the Relationship between IHL and IHRL  144
6. The Practical Application of IHRL to Detention
in Non- International Armed Conflict  192
PART IV. DEVELOPING THE LAW
7. Conclusion: Developing an Internment Regime
for Non- International Armed Conflicts  225
Select Bibliography 245
Index 269