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Prisoners Dilemma: Ascertaining and Augmenting the Multinational NIAC Detention Regime

Prisoners Dilemma: Ascertaining and Augmenting the Multinational NIAC Detention Regime While International Humanitarian Law (IHL) contains a comprehensive framework of rules and procedural protections for detainees in international armed conflicts (IACS), there is a conspicuous absence of such rules and protections for detainees in the case of non-international armed conflicts (NIACS). In fact, as the recent Serdar Mohammad v. Ministry of Defence case pointed out, the rules pertaining to NIACS make no mention of detention authority at all, leading some scholars to conclude that International Human Rights Law (IHRL), and not IHL, governs NIAC detention.Contrarily, this paper contends that not only does IHL govern (as well as grant authority for) NIAC detentions, the regime’s shortcomings regarding procedural safe-guards and treatment standards may be remedied through the application of the Copenhagen Process Principles – as evolutive interpretation or interpretation based on subsequent agreement – to Common Art. 3 of the Geneva Conventions. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Max Planck Yearbook of United Nations Law Online Brill

Prisoners Dilemma: Ascertaining and Augmenting the Multinational NIAC Detention Regime

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Publisher
Brill
Copyright
Copyright © Koninklijke Brill NV, Leiden, The Netherlands
eISSN
1875-7413
DOI
10.1163/13894633_02001014
Publisher site
See Article on Publisher Site

Abstract

While International Humanitarian Law (IHL) contains a comprehensive framework of rules and procedural protections for detainees in international armed conflicts (IACS), there is a conspicuous absence of such rules and protections for detainees in the case of non-international armed conflicts (NIACS). In fact, as the recent Serdar Mohammad v. Ministry of Defence case pointed out, the rules pertaining to NIACS make no mention of detention authority at all, leading some scholars to conclude that International Human Rights Law (IHRL), and not IHL, governs NIAC detention.Contrarily, this paper contends that not only does IHL govern (as well as grant authority for) NIAC detentions, the regime’s shortcomings regarding procedural safe-guards and treatment standards may be remedied through the application of the Copenhagen Process Principles – as evolutive interpretation or interpretation based on subsequent agreement – to Common Art. 3 of the Geneva Conventions.

Journal

Max Planck Yearbook of United Nations Law OnlineBrill

Published: Aug 29, 2017

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