TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

General Laws Governing Detention Outside the CriminalJustice SystemDetentions have always been a function of war. But, power is not unconstrained—hence,two general categories of laws exist that generally governdetention outside the US criminal justice system: the Laws of Armed Conflictand, more controversially, human rights law.The Law of Armed ConflictThe laws of armed conflict are also known as ‘the laws of war’ or ‘internationalhumanitarian law.’ A body of international law composed of both treatiesand customary international law (the customary conduct of states), the lawsof armed conflict govern both international and intra-state armed conflict.Within this body of law, the Geneva Conventions play a particularly strongrole. 313 Specifically, the Third and Fourth Geneva Conventions govern the detentionof individuals during an international armed conflict.Under the Geneva Conventions, different categories of detainees are subject todifferent detention rules:Prisoners of War: Members of a belligerent state’s military and members of anarmed militia that fulfill certain specific requirements (such as wearing a fixed,distinctive emblem recognizable at a distance) may be detained until the endof hostilities as POWs. The rules governing the detention of POWs are quitestrict. POWs may be questioned but may not be tortured, abused, coerced orthreatened. They are only obligated to give their name, date of birth, rank,and serial number. 314 A “competent tribunal” must resolve cases where there isdoubt as to whether a person is subject to detention as a POW. 315Civilians: Under the Geneva Conventions, no aggressive action, including detention,can usually be taken against civilians unless they have taken direct partin hostilities. There is disagreement about what it means to take “direct part inhostilities,” but it is generally thought to mean that the civilian must take anaction directly causing harm to the soldiers or civilians of a foreign country. 316Civilians who do take direct part in hostilities may be detained. Additionally,Article 42 of the Fourth Geneva Convention allows for the internmentof civilians (even of civilians who take no part in hostilities) by an occupyingpower if “the security of the Detaining Power makes it absolutely necessary.” 317112 Trials by Fire: Counterterrorism and the Law

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