Detention of non-state actors engaged in hostilities: the future law - summary report

Law Defence Australia

This paper presents the results of a conference and workshop on legal aspects of the power to detain, processes for transferring a detainee to either another armed force or the local law enforcement authorities, and the legal regimes applicable to this category of noninternational armed conflict.

On 15 and 16 December 2011 a conference and workshop were held at the Institute for Transnational and Maritime Security in the Faculty of Law at the University of Wollongong. The conference and workshop were funded by the Australian Civil–Military Centre under a research grant to the university, and the aim was to explore emerging law relating to the detention of non-state actors engaged in hostilities.

Existing international laws relating to non-international armed conflict are uncertain and ambiguous when it comes to political violence that occurs across borders and involves nonstate actors as principals—for example, violence between local militias and international forces. The lack of clearly applicable and adequate established treaty law means it us up to cooperating members of the international community to set standards on matters such as the transfer of detainees to each other or to local authorities. Multiple initiatives are currently generated in an ad hoc way, resulting in a plethora of legal standards.

On 15 December, the conference day, the subject was approached from the conceptual perspective, dealing with the identification of legal dilemmas and questions of legal interpretation and analysing threshold questions. The workshop, held the following day, was a closed event during which discussion focused on national practices and practical matters associated with the development of consensus to underpin new international standards.

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