The Detention of Civilians in Armed Conflict

Abstract

In the armed conflict between the United States and Al Qaeda, the legality of the government's detention scheme has been mired in confusion. The lack of clarity is especially acute with respect to the substantive criteria for defining who may be detained. A crucial determinant of the lawfulness of the scheme is whether international humanitarianlaw (IHL) permits the preventive detention of civilians, or particular groups of civilians. In addressing that issue, leading lawmakers, litigators, and adjudicators have misconstrued or misappropriated aspects of the IHL regime. Indeed, the confusion surrounding the current and future direction of U.S.detention policy stems in significant part from those misconceptions or misuses of the law.