The Law of Armed Conflict and Detention Operations in Afghanistan

• Author: Matthew C. Waxman
• Position: Associate Professor of Law, Columbia Law School; Adjunct Senior Fellow, Council on Foreign Relations; Member, Hoover Institution Task Force on National Security and Law
• Pages: 343-356

XII

The Law ofArmed Conflict and Detention

Operations in Afghanistan

Matthew C. Waxman*

Inreflecting on the arc of US and coalition detention operations in Afghanistan,

three key issues related to the law of armed conflict stand out: one substantive,

one procedural and one policy. The substantive matter—what are the minimum

baseline treatment standards required as amatter of international law?—has clari-

fied significantly during the course of operations there, largely as aresult of the US

Supreme Court's holding in Hamdan v. Rumsfeld} The procedural matter—what

adjudicative processes does international law require for determining who maybe

detained?—eludes consensus and has become more controversial the longer the

Afghan conflict has continued. And the policy matter—in waging counterinsur-

gency warfare, how do foreign military forces transition military detention opera-

tions to effective civilian institutions?—has emerged as acritical strategic priority

for which the law of armed conflict provides little instructive guidance.

President Barack Obama's determination to close Guantanamo while expand-

ing US military commitments in Afghanistan will draw new public attention to

these questions. After briefly explaining the basis ofUS and coalition detention op-

erations, this article addresses each of these issues in turn. Viewing them together,

*Associate Professor of Law, Columbia Law School; Adjunct Senior Fellow, Council on Foreign

Relations; Member, Hoover Institution Task Force on National Security and Law.