Document Type

Article

Publication Date

2009

Center/Program

Roger Hertog Program on Law and National Security

Abstract

In reflecting on the arc of US and coalition detention operations in Afghanistan, three key issues related to the law of armed conflict 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. l 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 has continued. 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.

President Barack Obama's determination to close Guantanamo while expanding US military commitments in Afghanistan will draw new public attention to these questions. After briefly explaining the basis of US and coalition detention operations, this article addresses each of these issues in turn. Viewing them together, it concludes with some general observations about the convergence of law and strategy.

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