Rationales for Detention: Security Threats and Intelligence Value

• Author: Ryan Goodman
• Position: Professor of Human Rights and Humanitarian Law, Harvard Law School
• Pages: 371-383

XIV

Rationales for Detention: Security Threats

and Intelligence Value

Ryan Goodman*

In the armed conflict with Al Qaeda inside and outside Afghanistan, 1the US

government has had to grapple with difficult legal issues concerning who can

be detained. In this brief essay, Idiscuss whether US practices have been consistent

with the law of armed conflict (LOAC). Three specific issues are considered. The

first is athreshold question: Does LOAC regulate who can be detained in anon-

international armed conflict? After concluding that it does, Iaddress two questions

that implicate the substantive criteria for detention. First, is it lawful to detain civil-

ians who have not directly participated in hostilities? Second, is it lawful to detain

individuals for along or indefinite period for the purpose of gathering intelligence?

Since September 11, the US government has adjusted its detention practices to

overcome various legal defects. These three issues remain among the fundamental

challenges to the detention regime.

It is not obvious that LOAC regulates the substantive grounds for detention in

non-international armed conflict. Neither Common Article 3nor Additional Pro-

tocol II explicitly addresses the subject. They contain no language expressly pro-

hibiting arbitrary detention or unlawful confinement. Similarly, the Rome Statute

for the International Criminal Court includes "unlawful confinement" in alist of

*Rita E. Hauser Professor of Human Rights and Humanitarian Law, Harvard Law School.