In his post below, Marko takes the view that the Obama administration position on the authority to detain in Guantanamo in internally contradictory and based on a misinterpretation of international humanitarian law. While I agree with Marko that some of the analysis offered by the Obama administration in its recent brief is confused and confusing, I am of the view that the position taken by the current administration regarding the authority to detain is progressive.
As Marko and Deobrah Pearlstein at Opinio Juris have pointed out the substantive standard for detention adopted by the Obama Administration differs little from the standard adopted by the Bush administration. This notwithstanding, there are at least two points in the Obama Administration’s brief where the tone and use of international law is different from and better than the position taken by the previous administration. I leave aside the fact that this administration claims its authority to detain from the 2001 Authorisation for the Use of Military Force statute (AUMF) rather than from Presidential power.
The dropping of the term “enemy combatant”
The first things the Obama administration should be lauded for is that no longer uses the term enemy combatant with respect to the decision to detain. The Bush administration had tied the authority to detain persons at Guantanamo to the detainee being found to be an “enemy combatant” (see the July 2004 order establishing the Combatant Status Review Tribunal). However, IHL has never predicated detention power on whether the person is a combatant. IHL envisages and authorises the detention of enemy combatants (see the 1949 Geneva Convention (GC) III for POWs and 1949 GC IV authorising detention of civilians who are saboteurs or are otherwise unprivileged belligerents). However, IHL also envisages and authorises detention of a broader group of individuals than those who can be regarded as combatants. The Fourth Geneva Convention (GC IV) on the Protection of Civilians is quite clear on this as it allows belligerents to detain (intern) alien nationals “if the Security of the Detaining Power makes it absolutely necessary” (Art. 42) or for “imperative reasons of security” (Art. 78). The first provision relates to protected persons with the territory of the party to an armed conflict and the latter relates to situations of occupation. At this pointof the argument, it matters little whether these provisions apply on their own terms to Guantanamo. They are used here to support the claim that under IHL detention is not tied to enemy combatantcy. But if IHL allows detention of a broader group than enemy combatantcy, why is it a good thing that Obama administration no longer ties detention to whether a person is an enemy combatant?
IHL allows classification of individuals for at least three separate purposes: (i) targetting; (ii) detention; and (iii) prosecution. The term “enemy combatant” is relevant in the law of targetting and irrelevant in the law of detention. Combatants are lawful targets whereas civilians who do not take a direct part in hostilities are not. However, this classification is independent of whether a person can be detained or prosecuted. Dropping the enemy combatant term for the purposes of detention is a good thing because the definition of who an enemy combatant adopted by the Bush administration was extremely broad. Although international law would allow, in time of armed conflict, detention of supporters of an armed group if there are “imperative reasons of security” it is dangerous to label such people as combatants. Recall that under the Bush Administration’s Order “the term ‘enemy combatant’ shall mean an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners. This includes any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces.” Although the definition was stated to be “for the purposes of this order”, it is dangerous to mix the law of targetting with the law of detention. The risk of adopting a broad definition of combatants is that it is possible and perhaps even likely that the definition will flow back and be used in the law of targetting. Had the Bush administration policy continued, one can easily imagine a US official who is looking in the future for a definition of enemy combatant citing the definition contained in the 2004 order. We have seen this sort of slide in other cases where officials simply pick up a definition on the books and apply it in a different context (see the Torture Memos but also in other circumstances where officials are genuinely looking for guidance based on prior precdents). In this area, the definition could have been cited as a justification for widening the list of persons who are are lawful targets as a matter of IHL.
Under the 2004 order, persons who had “supported” Taliban or Al Qaida forces were regarded as enemy combatants even if they had not themselves committed any belligerent acts. This goes beyond IHL which defines combatants (in international armed conflicts) either as members of regular armed forces or members of irregular forces who meet certain criteria (see Art. 4 GCIII and Arts. 43 & 44 Additional Protocol I (1977) to the Geneva Conventions). Alternatively, IHL in non-international armed conflicts refers to fighters who would either be members of organized armed groups. In addition, in both international and non-international armed conflicts civilians who take a direct part in hostilities may also be regarded as “unlawful combatants/unprivileged belligerents”. So IHL defines combatantcy (privileged or unprivileged) either by reference to membership of organized armed group (and in the case of irregular groups, one would have to be a member of the fighting wing of that group) or by reference to taking a direct part in hostilities. On the other hand, the Bush administration’s definition would include persons who finance such group or otherwise support them. These persons are not “combatants” and are not lawful targets under IHL.
Seeking detention authority in the law relating to International Armed Conflicts
The second area where the Obama Administration is to be lauded is that it seeks to find authority to detain in international humanitarian law applicable to international armed conflicts (though via the AUMF). Marko criticises the administration’s brief on the ground that he says the new administration “claims that the US is engaged in a non-international armed conflict with Al-Qaeda and on the other hand tries to import rules governing international conflicts into precisely the one area where they cannot be imported.” The Bush administration had taken the view that (i) the US is involved in a conflict with Al Qaida which is separate and distinct from the armed conflict in Afghanistan; and (ii) this conflict is a non-international armed conflict. The new administration’s brief appears to continue point (i) above but it does not state explicitly that they regard the conflict with Al-Qaeda as a non-international armed conflict. The key paragraph is quoted by Marko,
The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.
A distinction is drawn between international armed conflicts between the armed forces of nation states and “the current, novel type of armed conflict against armed groups.” But this does not necessarily mean that the latter are to be regarded as non-international armed conflicts. The US Supreme Court did not decide in Hamdan v Rumsfeld that the conflict with Al-Qaida is non-international. That part of the decision is a mess and I concede that there are two ways of reading it. One is that the Court applied Common Article 3 (CA3) because it was saying the conflict was non-international law. The other (I think better view) is that the Court was simply saying that CA3 applied at a minimum to the conflict with Al-Qaeda. In that case the US govt had argued that the conflict with Al-Qaeda was not a conflict to which the full Geneva Conventions applied. The Court said:
We need not decide the merits of this argument becuse there is at least one provision of the Genneva Conventions that applies here even if the relevant conflict is not one between signatories. (emphasis added)
So the US government is free to take the position that any conflict with Al-Qaida is an international armed conflict. I am of the view that the it is possible for a State to be involved in a transnational conflict with a non-State group. State practice bears this out (Uganda and Rwanda in the DRC, Israel fighting Hezbollah in Lebanon, Turkey fighting the PKK in Iraq). I am doubtful that the US is currently involved in an “armed conflict” with Al-Qaida. But leaving that aside, it seems to me that as a matter of law and policy transnational conflicts with non-State groups ought to be (and have been) regarded as international armed conflicts in so far as it involves a use of force on the territory of a state without the consent of that State. First the legal argument, where force is used against the non-State group abroad (without the consent of the territorial state) this a use of force against the territorial integrity of another State which brings into play the jus ad bellum. It is no less an armed conflict between States because the other State does not fire back. Therefore Art. 2 of the GCs is applicable. As a matter of policy, the inhabitants of a foreign State should not be deprived of the protections of the rules of international armed conflicts relating to targetting and detention just because the military and political aims of the State using force are not directed against the government of the territory where force is being used but against a non-State group. States accept these rules so that their populations will be protected in cases of use of force by foreign powers and a transnational armed conflict with a non-State group is just that. The fact that the state using force is acting outside its territory means that it cannot cite the same sovereignty concerns that have stunted the application of non-international law.
It can be argued that the law in international armed conflicts does not expressly authorise detention of members of non-State groups (who do not meet the combatantcy requirements of IHL) and that the Obama administration is misguided if it thinks IHL can help in defining the detention authority. This is to miss the point though. The Obama administration is saying that we should look to analogous situations in IHL. But one can even go further to argue that the provision of GCIV dealing with aliens in the territory of a belligerent (Part III, Section II), including the provisions on internment do apply in principle to Guantanamo detentions because these detainees are detained in territory which is for all practical purposes US territory (see Knut Dormann’s excellent article). . Those provisions dealing with internment say that persons may be detained only if the security of the detaining state makes it absolutely necessary. Also, persons detained have a right to have the decision to detain reconsidered by an appropriate court or administrative board and have the right to tiwce yearly review of the detention. These are the principles that should always have governed the decision to detain. It is worth noting that these provisions may not apply because of the nationality of detainee. It is also worth noting that these provisions do not provide a justification for the initial act of capture abroad. Nonetheless, even if these principles do not apply as a matter of law, seeking to fill the gaps in the law by reference to these principles is sound policy. Unfortunately, the administration does not make reference to provisions of GCIV