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."