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Part IV Developing the Law, 7 Conclusion: Developing an Internment Regime for Non-International Armed Conflicts

From: Detention in Non-International Armed Conflict

Lawrence Hill-Cawthorne

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2022. All Rights Reserved.date: 26 September 2022

Habeas corpus — Detention — Derogations — Armed conflict, international — Armed conflict, non-international — Lex ferenda

This chapter makes proposals for developing the law on detention in non-international armed conflict, in a manner that builds upon rather than replaces the existing law. It is argued that this is more appropriate than simply eliminating the distinction between international and non-international conflicts in this area. The proposed internment regime analogizes to and builds on the rules applicable to civilian internment in international armed conflicts. The proposed regime would apply ‘through’ the existing human rights law obligations of states and non-state groups. Thus, for states parties to the key human rights treaties, derogation would be necessary to access certain elements of the proposed internment regime, such as non-judicial review. This ensures that a more permissive detention regime could only be used where it is strictly necessary to do so, rather than simply where the threshold for a non-international armed conflict is met.

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