Roger Hertog Program on Law and National Security
Looking back on US and coalition detention operations in Afghanistan to date, three key issues stand out: one substantive, one procedural and one policy. The substantive matter - what are the minimum baseline treatment standards required as a matter of international law? - has clarified significantly during the course of operations there, largely as a result of the US Supreme Court’s holding in Hamdan v. Rumsfeld. The procedural matter - what adjudicative processes does international law require for determining who may be detained? - eludes consensus and has become more controversial the longer the Afghan conflict continues. And the policy matter - in waging counterinsurgency warfare, how do foreign military forces transition military detention operations to effective civilian institutions? - has emerged as a critical strategic priority for which the law of armed conflict provides little instructive guidance. After briefly outlining the basis of US and coalition detention operations, this article addresses each of these issues in turn. It concludes with some general observations about the convergence of law and strategy.
Matthew C. Waxman,
United States Detention Operations in Afghanistan and the Law of Armed Conflict,
Israel Yearbook on Human Rights, Vol. 39, 2009; Columbia Public Law Research Paper No. 09-202
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1578