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Case Western Intl. Law Journal: Detention Policy

Author: Ashley S. Deeks, International Affairs Fellow, 2007-2008


Ashley S. Deeks examines international law regarding administrative detention in non-international armed conflicts.

Excerpt: Treaties long have recognized that a state may detain without trial not only opposing armed forces, but also civilians and others who pose threats to its security. While the procedural rules for administrative detention in international armed conflict are reasonably robust, only a very limited set of treaty rules apply to administrative detention in noninternational armed conflicts.

This article examines the treaty rules governing detention procedures in international and non-international conflicts. It then analyzes realworld examples of administrative detention by multi-national forces and individual states. The article concludes that states should, as a matter of policy, apply several key principles drawn from treaties governing international armed conflict to all administrative detentions. These rules impose a high standard for a state to initially detain a person, require the state to immediately review that detention, permit the detainee to appeal the detention decision, require the state to review the detention periodically, and obligate the state to release the detainee when the reasons for his detention have ceased. A state also should inform a detainee why it has detained him.

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