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Article Excerpt
[The taking and handling of civilian detainees during contemporary military operations is increasingly subjected to political, media and judicial scrutiny. This article argues that the most effective and efficient means of ensuring greater certainty, consistency and clarity in the identification and application of appropriate and relevant norms for dealing with detainees is to formalise those norms in a 'special legal regime'. It is only through increased formalisation and systematisation of legal principles, rules and standards that the appropriate balance will be achieved in determining the rights and obligations of both the civilian population and military forces. The author concludes by suggesting a number of principles that should form the basis of some fundamental norms required for this 'special legal regime '.]
CONTENTS I Introduction II The Military and Political Contexts of Detention A The Military Context B The Political Context III The Legal Framework A Case Study and Hypotheticals B Special Legal Regimes C Issues in Establishing a Special Legal Regime for Detention 1 Siting the Special Legal Regime 2 The Lodestar 3 Settling Norms 4 Institutional Responsibility 5 Binding Nature of the Regime 6 Fundamental Norms IV Conclusion
I INTRODUCTION
It is accepted that on most military operations military forces may be required to detain civilians (1) posing a threat to the security and safety of the force or the general population. However, the detention of civilians during military operations is increasingly subjected to political, media and judicial scrutiny. (2) Issues currently receiving attention include the law applicable to detention, the legal basis for taking detainees, the treatment of those detained, the transfer (3) and handover (4) of detainees, and the accountability of military personnel. (5) As a result of this scrutiny, there is a growing demand for greater certainty, consistency and clarity in the norms applicable to dealing with detainees, so that military operations can be conducted effectively and efficiently while dealing with the rights and obligations of civilians affected by the operation, as well as meeting the obligations of the military force conducting the operation.
In November 2007, for example, John Bellinger III, Legal Adviser for the US State Department, argued that the Geneva Conventions (6)--the law traditionally used by military forces to deal with detaining individuals during military operations--do not provide sufficient guidance to those countries dealing with detainees in the course of the 'War against Terror'. He stated that:
The United States is firmly committed to the law that applies. We're also committed to working with other countries around the world to develop new legal norms in cases where existing law does not give one the answers. But what we do think is problematic is to simply suggest that the Geneva Conventions provide all of the answers in fighting international terrorism, and that countries simply need to follow the Geneva Conventions and that is the end of the matter. (7)
This article does not argue that the relevant existing legal regimes should be abandoned. It does, however, seek to contribute to the search for greater certainty, consistency and clarity in the norms applicable to detention by arguing that they be formalised and systematised.
The article begins by examining some key military and political issues that arise when dealing with detainees. It then considers whether the legal regimes that currently regulate the taking and handling of detainees adequately manage the military and political imperatives and expectations that arise during contemporary military operations. The principles, rules and standards relating to detention are fragmented. There is no single legal regime that can be relied upon to apply to all situations of detention on military operations. The question then is whether greater certainty, consistency and clarity of norms relating to detention should be achieved simply by developing a better understanding of applicable legal regimes, or whether there is a need to formalise and systematise the norms relevant to the detention of civilians by developing a special legal regime.
This article argues that there does exist a need to formalise and systematise the norms for dealing with detained civilians. It proposes that this may be achieved by establishing a self-contained legal framework that codifies the interests, rights and obligations of various communities and entities involved in the detention of civilians during military operations.
While many of the issues discussed here are relevant to all forms of detention in the course of military operations, this article focuses on the detention of civilians. Consequently, while developing my arguments I am aware that, at its most basic and pragmatic level, any analysis or recommendation relating to the legal framework for detention must satisfy the needs of at least two stakeholders: military forces and civilians. One must avoid imposing what Adam Roberts refers to as 'legal encirclement'--military forces 'cannot be expected at all times and in all circumstances (especially those of combat) to observe what might be an unrealistically broad, and occasionally conflicting, array of ... legal obligations.' (8)
From the military perspective, it is fundamentally important that the legal framework is capable of being applied in the heat of battle. The military have a challenging job, and unnecessary complications are to be avoided. Any regime requiring legal training to interpret its provisions in the field will not lend itself to effective application. The civilian perspective must also be considered. Minimum rights must be protected, and regimes must be sufficiently simple to allow civilians to know and defend those rights. Both the military and civilians are likely to be concerned with having to interpret provisions that are ill-conceived, uncertain or overcomplicated.
The political aspect of detention is also very important. There is no single political approach to the issue, but incumbent governments are likely to have grave concerns as to the political and diplomatic consequences of military mistreatment of detainees. As such, their political perspective is likely to emphasise the importance of treating detainees humanely, with dignity and respect, and in accordance with international and national obligations. (9) These military, civilian and political perspectives underscore the increasing difficulty in justifying a case-by-case approach to dealing with detainees. In the context of taking and handling detainees, acts (and sometimes omissions) can have serious consequences on lives, military success and political agendas. These perspectives also emphasise the need to develop a legal framework for dealing with detainees that accords with accepted legal norms and which is certain, consistent and clear in its application. Such a framework is essential to ensuring that the responses of military personnel dealing with detainees are reasonable and necessary in the circumstances as assessed at the time.
II THE MILITARY AND POLITICAL CONTEXTS OF DETENTION
In order to better understand the legal issues that must be considered in developing a special detention regime, it is first necessary to outline some of the key military and political issues that arise when dealing with detainees. This Part begins by discussing some of the more important practical issues that arise for the military when planning and training for dealing with detainees, and also briefly discusses the particular challenges concerning the taking and handling of detainees when military forces are engaged in coalition operations. In relation to the political context of detention, this Part briefly discusses some of the political concerns surrounding military forces taking and handling detainees and how the law is used to manage such political concerns.
A The Military Context
In situations where military forces have planned for the detention of civilians, or have conducted or managed such detention, they have had to deal with a number of practical issues. These have included:
* determining the levels of force that are permissible when detaining individuals;
* responsibilities associated with questioning detainees;
* procedures for seeking authorisation to detain certain categories of individuals;
* security arrangements for transferring or handing over detainees;
* procedures for handing detainees to other internal or external authorities;
* the accountability of military personnel when dealing with detainees; and
* the role of local and international agencies. (10)
These issues arise in relation to military, political and legal aspects of detention, and it is these three aspects upon which the remainder of this article focuses.
Dealing with detainees requires considerable planning and training of military personnel to ensure that detention is conducted and managed in accordance with relevant legal norms and policies. The issues that need to be considered as part of the military planning process include:
* selection and development of appropriate detention facilities;
* provision of food that is appropriate to detainee needs;
* sanitation and medical requirements;
* access of international organisations to monitor the treatment of detainees;
* provision of legal advice to detainees;
* provision of ongoing religious support to detainees;
* family member access to the detainees;
* allocation of troops to the running of detention facilities; and
* compliance with the appropriate rules of engagement for apprehending and treating detainees.
The taking and handling of civilian detainees requires military personnel to be trained in matters such as permissible levels of force, the treatment of women and children, techniques for questioning and the administration of a detention facility, it also requires commanders to ensure that orders, rules of engagement and standard operating procedures are appropriate to the circumstances faced by their forces on the ground, that their subordinates comply with relevant reporting requirements, that the treatment of detainees is adequately monitored and that appropriate procedures and processes are maintained to ensure the safety of detainees.
A number of reports, both national and international, have identified the importance of these issues in relation to ensuring successful detainee operations. For example, in a series of reports describing the lessons learned by US military forces serving in areas of operation such as Somalia, Haiti, the Balkans and Kosovo, US Judge Advocates recorded the importance of, among other things, planning early for detention issues, anticipating the transfer of responsibility for detainees and detention facilities to the host nation, meeting requirements relating to keeping accurate records, providing legal assistance to detainees, developing standards for detention and protecting detainees' rights through review processes. (11) Australian and Canadian legal officers involved in military operations where their forces have had to deal with detainees have reported on similar issues. (12)
Failure to plan effectively for detention can have serious implications. In relation to detentions under Multinational Force authority in Iraq, the United Nations Secretary-General has reported that
mass arrests are carried out by Iraqi police and special forces, acting alone or in association with the Multinational Force, and often without attention to due process. Reports of ill-treatment of detainees and inadequate judicial procedures continue. (13)
The need for effective advance planning for detentions is amplified by the nature of modern military operations. An increasingly important component of military operations is interoperability. The military and social culture of coalition forces, their political concerns, their legal obligations and their capacity to undertake particular operations can impact on the way in which military forces deal with detainees. For example, some military forces might not have detention facilities in the area of operations and therefore have no choice but to rely upon a coalition partner to provide appropriate facilities. In such situations, arrangements will need to be made concerning (amongst other things) transfer processes and access to, as well as monitoring of, detainees. (14) A force might also be subject to legal and policy limitations regarding the parties to whom they can transfer detainees, or regarding specify detainees who cannot be transferred to another partner. (15)
B The Political Context
It is increasingly clear that detention is no longer just a military matter. In the last few years, detention has become a political issue which has been managed between nations, and across military and civilian spheres. Thus, the national governments of troop-contributing nations must now manage the political consequences of potential and actual litigation concerning the treatment of detainees, (16) the political consequences of negotiating agreements for the transfer of detainees, (17) and the political consequences of allegations that they were aware of a coalition partner's mistreatment of detainees. (18) In August 2005, for example, the Australian Senate through its Australian Foreign Affairs, Defence and Trade References Committee examined, amongst other things,
[w]hether any Australian personnel (including employees, contractors and consultants) were present, or had duties which included being present during any interrogations or interviews (however defined) of persons detained in relation to the war in Iraq. (19)
National political concerns influence the international dimensions of a military operation by affecting which nations serve in a particular area of operation, which operations may be conducted, to whom detainees may be transferred and the extent to which international institutions engage with detention issues. Host nation politics also need to be managed in, among other things, determining when detainees are released and contextualising the power structures within various law and order authorities. The military also has political expectations that need to be considered. At the tactical level, for example, political issues influence the levels of authorisation that are necessary before particular classes of detainees can be taken, specific reporting requirements required for any dealing with detainees, and limitations as to who may detain. These political pressures at the national and international levels have led to greater reliance on the application of law.
Today, the language of law is a key component in dealing with the political and military dimensions of conducting armed conflict across international, national and institutional boundaries. It has been argued, for example, that law is increasingly being used as a method of warfare to achieve military objectives. (20) Law is therefore seen as a 'strategic partner for the military when it structures logistics, command, and control, and smoothes the interface with all the institutions, public and private, that must be coordinated for military operations to succeed'. (21) Law plays an important role in creating and shaping obligations and perceptions across national and international spheres. Thus, in the context of detention, the combination of law and warfare ('lawfare') is a key element in both military and political debates concerning such issues as the justification for taking detainees; the treatment of detainees; the requirements to release, handover or transfer detainees; and the accountability and transparency that must exist when dealing with detainees.
One application of lawfare is to deal with obligations. Obligations created by international legal frameworks--jus cogens norms such as the prohibitions on torture, slavery and the slave trade, the prohibition of racial discrimination and apartheid, and the prohibition of hostilities directed at the civilian population (22)--create bold boundaries within which military forces are required to work. For instance, when planning for, managing and conducting contemporary military operations, states that are signatories to the Rome Statute of the International Criminal Court ('Rome Statute') (23) must establish firm boundaries within which their troops must operate. Commanders and politicians are increasingly aware of the reach of both international and domestic criminal law. In the context of dealing with detainees, the comments of the Canadian Minister of National Defence are also likely to be echoed by government officials around the world:
Our government is committed to the goal of ensuring that each ... detainee is treated in accordance with international law....
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