Need for guidelines on detention of “enemy combatants”

Samuel Issacharoff, Professor of Constitutional Law at NYU School of Law, has an article on Los Angeles Times (“Iraq and Afghanistan: Who Is and Enemy Combatant?”) discussing the need for the US to develop guidelines on how to handle prisoners in Iraq and Afghanistan.

Isacharoff argues that the concept of “detention until the end of hostilities” cannot be used in the context of unconventional armed conflicts, such as those the US is facing in Iraq and Afghanistan. Rather, the author suggests a twofold approach in this regard:

Under these circumstances, we must fashion procedures to do two things: There must be a legal mechanism to determine the propriety of detention based on a correct identification of an individual’s status as a combatant. And there must be a new process to determine the need for continued detention, reflecting both the fact that it is intolerable to hold individuals forever and that it is equally irresponsible simply to release individuals to resume terrorist activities.

Isacharoff notes that that both the actions are hard to pursue, due to the lack of adequate legal mechanisms. He mentions, however, the creation of Detainee Review Boards as a first attempt to assess the status of an individual as a combatant.

What remains problematic is the lack of an appropriate mechanism to periodically assess the dangerousness of the combatant detained. Isacharoff recalls that International Humanitarian Law prescribes detention of combatants as a lawful mean to degrade the fighting capacity of the enemy military force; by merely being part of the enemy forces, a combatant does not commit a criminal offense, thus cannot be tried. For this reason, demands to try detainees in Afghanistan and Iraq through civilian criminal process should be discarded. In the view of the author,

The initial impulse to reduce this to a question of individual criminal culpability — either under American or Afghan law — fails to address the fact that detention is about status as a combatant.

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