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.