Relationship between LOAC and IHRL

Judicial Review for POWs During Armed Conflict?

By Robert Chesney
Wednesday, May 6, 2015, 6:58 PM

Interested in the ongoing debate over the relationship between LOAC and Human Rights Law in general, or the intersection of those bodies of law in relation to non-criminal detention in particular? You won't want to miss this.

In 2012, the UN Human Rights Council asked the UN Working Group on Arbitrary Detention to produce a document spelling out just what it means to say there is a prohibition on arbitrary detention--including in the context of armed conflict. The Working Group has now promulgated its conclusions, in the form of a document that almost certainly will be cited with gusto by those challenging detention systems such as the United States operated in Afghanistan and Iraq in the post-9/11 period. Highlights include a bold claim that non-military judicial review may be required even in connection with ordinary POWs (and certainly so with respect to persons held for the duration of hostilities as the functional equivalent of combatants but without POW status).

All the relevant documents, and a handy overview, are provided in this very useful post from Marko Milanovic.