Rights statement: http://journals.cambridge.org/action/displayJournal?jid=ILQ The final, definitive version of this article has been published in the Journal, International Law Quarterly, 61 (3), pp 697-711 2012, © 2012 Cambridge University Press.
Final published version, 562 KB, PDF document
Research output: Contribution to Journal/Magazine › Journal article › peer-review
Research output: Contribution to Journal/Magazine › Journal article › peer-review
}
TY - JOUR
T1 - Is there a Right to Detain Civilians by Foreign Armed Forces During a Non-International Armed Conflict?
AU - Rowe, Peter
N1 - http://journals.cambridge.org/action/displayJournal?jid=ILQ The final, definitive version of this article has been published in the Journal, International Law Quarterly, 61 (3), pp 697-711 2012, © 2012 Cambridge University Press.
PY - 2012/7/3
Y1 - 2012/7/3
N2 - This article considers whether there is any lawful authority for foreign armed forces assisting a territorial State during a non-international armed conflict to arrest and detain civilians. Taking the backdrop of Iraq and Afghanistan it considers relevant UN Security Council resolutions including Resolution 1546 (2004) relating to Iraq which authorized the multi-national force (MNF) ‘to take all necessary measures’ and provided for the internment, for imperative reasons of security, of civilians. In respect of Afghanistan, a number of resolutions authorized the International Assistance Stabilisation Force (ISAF) to ‘take all necessary measures’. It challenges the notion that the positive rights under international humanitarian law applicable to an international armed conflict apply, mutatis mutandis, to a non-international armed conflict, where national law (including human rights law having extraterritorial effect) is of primary (although not of exclusive) significance. It also considers which body of national law, that of the sending or that of the receiving State, applies to determine the lawfulness of detention of foreign civilians. The article recognizes that the arrest and detention of civilians may be necessary during a non-international armed conflict but concludes that the lawful justification for doing so needs to be clearly established.
AB - This article considers whether there is any lawful authority for foreign armed forces assisting a territorial State during a non-international armed conflict to arrest and detain civilians. Taking the backdrop of Iraq and Afghanistan it considers relevant UN Security Council resolutions including Resolution 1546 (2004) relating to Iraq which authorized the multi-national force (MNF) ‘to take all necessary measures’ and provided for the internment, for imperative reasons of security, of civilians. In respect of Afghanistan, a number of resolutions authorized the International Assistance Stabilisation Force (ISAF) to ‘take all necessary measures’. It challenges the notion that the positive rights under international humanitarian law applicable to an international armed conflict apply, mutatis mutandis, to a non-international armed conflict, where national law (including human rights law having extraterritorial effect) is of primary (although not of exclusive) significance. It also considers which body of national law, that of the sending or that of the receiving State, applies to determine the lawfulness of detention of foreign civilians. The article recognizes that the arrest and detention of civilians may be necessary during a non-international armed conflict but concludes that the lawful justification for doing so needs to be clearly established.
U2 - 10.1017/S0020589312000292
DO - 10.1017/S0020589312000292
M3 - Journal article
VL - 61
SP - 697
EP - 711
JO - International and Comparative Law Quarterly
JF - International and Comparative Law Quarterly
SN - 1471-6895
IS - 3
ER -