US Detention of Taliban Fighters: Some Legal Considerations

AuthorStephane Ojeda
PositionLegal Adviser to the Operations at the Legal Division of the International Committee of the Red Cross (ICRC) in Geneva
Pages357-369
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US Detention of Taliban Fighters:
Some Legal Considerations
Stephane Ojeda*
During the last seven years detention activities by US forces involved in the
Afghanistan conflict 1have raised numerous questions from the perspec-
tive of international law, in particular international humanitarian law (IHL);2this
article addresses some of them. The focus will be on identifying the applicable law
throughout the various stages ofthe hostilities (Part I) and issues related to the depri-
vation of liberty of Taliban fighters that entails its practical application (Part II).3
No issues pertaining to ius ad bellumyi.e., related to the lawfulness of the use of
force, are discussed in this article. Given that there is often some confusion as to the
relationship between the ius ad bellum and IHL (ius in hello) ,it must be stressed
that IHL applies equally to all parties to an armed conflict, and that this is inde-
pendent ofwhether the use offorce has been lawful or not under the ius ad bellum.4
IHL only applies in situations ofarmed conflict. Treaty law has traditionally dis-
tinguished between international armed conflicts and non-international armed
conflicts, the former being regulated in far more detail than the latter as can be seen
in the core IHL treaties, the 1949 Geneva Conventions5and their two 1977 Addi-
tional Protocols.6The last years have, however, seen agrowing tendency to regulate
*Legal Adviser to the Operations at the Legal Division of the International Committee of the
Red Cross (ICRC) in Geneva. The article reflects the views of the author alone and not
necessarily those of the ICRC.

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