It is time for Western countries to craft a coherent approach to non-criminal detention.
During the course of the intervention in Mali led by France and members of the Economic Community of West African States (ECOWAS), militants from the north will inevitably be captured. What will happen to those who are? Though this question may seem simple, it in fact highlights a set of important dilemmas that many Western states have adamantly sought to avoid for much of the past decade.
As I detailed earlier for The Atlantic, the U.S. and other Western countries have adopted what can be described as a position of denial toward noncriminal detention of violent non-state actors. Noncriminal detention is when individuals are detained not on the basis of having violated a state's criminal law, but rather because they are members of an opposing military force. Hence, detention is meant to incapacitate them while the conflict still rages.
This prevailing position of denial stems from the fact that the Guantánamo Bay detention facility has been so controversial that it is seen as toxic. Stretching back to the end of the Bush administration, the U.S. has made little effort to defend its noncriminal detention policies, and no other Western states have been eager to defend or codify this practice. Thus, although the U.S. is not going to close Gitmo anytime soon, the government has for years held that it won't be taking new detainees, and is phasing out noncriminal detention. Most European states have been quite critical of noncriminal detention, sometimes harshly, seemingly under the assumption that they will never be forced to do it themselves.
In his essential book on the topic, Detention and Denial , Benjamin Wittes of the Brookings Institution argued that this policy of avoidance has worked "passably" for the U.S. and its allies for the past several years. During this period, Wittes wrote, "new captures, at least of major terrorist figures, are being handled relatively smoothly through the American criminal justice apparatus or by letting other countries hold the keys to their cells." Yet he warned that this could change: There could come a time when enemy combatants are captured in such large numbers on the battlefield that the makeshift system of the past several years would no longer suffice to deal with them.
With the war on Mali, we have reached that point. Of course, given the U.S.'s relatively minimal involvement in the conflict, the onus is not on the United States to craft a way to deal with combatants captured on the Malian battlefield. This is not a bad thing: Many Americans feel, with some justification, that a number of objections to the U.S.'s noncriminal detention policies over the past decade have been driven more by resentment of American power than by principle. Having a power other than the U.S. seeking to detain combatants can help ensure that principles are at the forefront of any discussion, and emotions engendered by American involvement are marginalized.
A starting point for discussion about noncriminal detention in Mali is recognizing that, despite some of the overheated rhetoric of the past decade, the detention of enemy combatants is a traditional tool of warfare. The reason is exceedingly obvious: What will happen if militants are simply released following capture? Many would certainly return to the fight. For this reason, the Third Geneva Convention explicitly contemplates the detention of enemy combatants until "the cessation of active hostilities."
One legitimate reason that noncriminal detention has been controversial in the post-9/11 era is that new considerations arise in the context of violent non-state actors (VNSAs). VNSAs do not wear uniforms, and the duration of hostilities involving VNSAs is potentially much longer than state-to-state warfare would be. These are real issues to address in fashioning a regime of noncriminal detention for VNSAs. But Western countries' practice of avoiding this issue has resulted in widespread acceptance of the position that it is immoral for states like the U.S. and France to undertake preventive detention. This position not only unnecessarily constrains Western states, but is also quite likely worse for the detainees.
One option for avoiding preventive detention is, of course, detaining nobody. In fact, there have been a number of reported battlefield executions in Mali. France's L'Express reported on January 21 that in the town of Sevare, Malian soldiers summarily slit the throats of "suspects" in one district, while in another, these forces "threw the bodies of what they said were 'rebels' into a well as everyone looked on." Obviously, summary executions are neither more moral nor more humane than detaining captured fighters.
Because of the dominant perception that it is immoral for outside states to engage in noncriminal detention, the default for states like France and the U.S. becomes detention by local partners. Local detentions are likely to be less controversial--but we shouldn't confuse less controversy with actual nobility.
In fact, local detention is often demonstrably worse for the detainees themselves. This has been true in Somalia, and true also in Afghanistan, where the U.S. military recently "suspended the transfer of detainees to some Afghan prisons out of concern over continuing human rights abuses and torture." There is strong reason to believe that Malian-led detention would likewise be either poor or disastrous for those being held.
In addition to credible allegations of atrocities perpetrated by the Malian military early in the conflict, Malian forces seem to have engaged in ethnic targeting. In Sevare, youths told L'Express that "to be an Arab, Tuareg or to wear traditional dress, for someone who is not from Sevare, is enough to disappear." Human Rights Watch has said that in the town of Niono, Tuaregs and Arabs "were being especially targeted." Further, the U.S. State Department's latest country report on human rights practices for Mali has described prison conditions as "extremely poor," noting that they "did not meet international standards." Problems included overcrowding, insufficient food, and inadequate sanitation and medical facilities.
Put simply, noncriminal detention should be reintroduced to Western nations' arsenal for combating violent non-state actors. The conflict in Mali shows that, though the criminal justice system may be satisfactory for handling terrorists who are captured under normal conditions, situations will arise where the quantity of combatants captured necessitates a different approach. At some point we will need to formulate a principled method for dealing with the unique problems that arise pertaining to noncriminal detention where the war is not state-to-state, but rather consists of a state (or states) fighting non-state actors. Especially because America is not playing a lead role, Mali is a good place for this discussion to begin.