A US District Court has just released the first judicial opinion on the detention standard applicable to detainees in Guantanamo (formerly known as ‘enemy combatants’), subsequent to the filing of the Obama administration’s brief that we have previously extensively discussed. Judge Walton’s opinion shows a valiant effort to grapple with the applicable international humanitarian law. Regrettably, however, I don’t think that his reasoning is free of all legal difficulties.
Readers will recall that the issue presented to the Court is whether a statute passed by Congress after 9/11, the Authorization to Use Military Force (AUMF), authorizes the preventive detention of individuals in a (supposed) non-international armed conflict between the United States and Al-Qaeda. In that regard, the instant Court was bound by prior US Supreme Court decisions in Hamdi and Hamdan, where the Supreme Court respectively held that the AUMF authorization extended to detention under the applicable law of war, and that Al-Qaeda and the US are engaged in a non-international armed conflict. Both of these propositions are dubious, but still binding on lower courts.
As I explained in my previous post, part of the problem with the whole idea that there is a non-international armed conflict with Al-Qaeda is that IHL provides no standard or authority for detention in such conflicts. In international conflicts, IHL says that both combatants and civilians may be detained preventatively, and says when and how and with what process. In non-international conflicts, Common Article 3 sets forth guarantees of humane treatment, and that is that. Thus, in my view, it is impossible to construct a standard for detention that is formally based in the AUMF from some sort of broader IHL principles. An analogy with IHL applicable to international conflicts is inappropriate, since these conflicts have a fundamentally different premise, in that they are conflicts between two sovereigns. The authority for detention in NIACs can only exist in domestic law, not in IHL, and the text of the AUMF just does not say anything in regard of detention.
So, what did Judge Walton do? He first addressed the petitioners’ argument (basically the one that I’ve outline above) that the law applicable to NIACs provides no authority to detain, unlike with IACs (at 22 ff). In the Judge’s view, this is incorrect, since IHL in IACs also does not provide for a power to detain, and is equally silent as the IHL in NIACs. He distinguishes Art. 21 of the Third Geneva Convention, which provides that
The Detaining Power may subject prisoners of war to internment. It may impose on them the obligation of not leaving, beyond certain limits, the camp where they are interned, or if the said camp is fenced in, of not going outside its perimeter. Subject to the provisions of the present Convention relative to penal and disciplinary sanctions, prisoners of war may not be held in close confinement except where necessary to safeguard their health and then only during the continuation of the circumstances which make such confinement necessary.
In his view, this article provides only for internment, not for detention, and he cites in that regard the ICRC Commentary to this provision, which indeed says that
Prisoners of war are in the power of the State which has captured them. This power is based on force, and the first concern of the captor is to maintain it by resisting any escape or attempted escape by prisoners. The usual method used for this purpose, expressly authorized by this paragraph of the Convention, is internment. To intern a person is to put him in a certain area or place — in the case of prisoners of war, usually a camp — and to forbid him to leave its limits. The concept of internment should not be confused with that of detention. Internment involves the obligation not to leave the town, village, or piece of land, whether or not fenced in, on which the camp installations are situated, but it does not necessarily mean that a prisoner of war may be confined to a cell or a room. Such confinement may only be imposed in execution of penal or disciplinary sanctions, for which express provision is made in Section VI, Chapter III, below.
In Judge Walton’s view (at 27 ff), all IHL instruments presuppose that the individual concerned has already, as a matter of fact, been captured or detained, or ‘fallen into the hands of the enemy’. Much like John Dehn in his comments to my previous post, for Judge Walton this is a purely factual matter – IHL provides no legal authority to actually capture or detain, whether in an IAC or in a NIAC:
Thus, regarding the “authority” to detain individuals in an armed conflict, the laws of war are silent with respect to both international and non-international armed conflicts. Yet, these same laws require the state to detain rather than summarily execute fighters in such conflicts. The obvious implication, consistent with historical practice, is that these provisions, far from “authorizing” detention in one context but not another, act as restraints on the inherent authority of the state to exercise military force in whatever manner it deems appropriate.
The Court is therefore baffled by the assertion, repeated throughout Khan’s memorandum of law and at oral argument, that the President could take military action against an organization like al-Qaeda under the AUMF but could not detain anyone fighting on behalf of that organization as part of that military action. … As the foregoing analysis demonstrates, detention is an exercise of the state’s “right to use force,” and often a required one at that. And it is in this sense that detention is, as the plurality noted in Hamdi, “a fundamental incident of waging war.”
This discussion is to an extent persuasive, but it suffers from problems which are terminological as much as they are substantive. First, as to the distinction between internment and detention. When the ICRC Commentary to Art. 21 GC III distinguishes between the two, it does so on two grounds: (1) detention is a deprivation of liberty in close confinement, while internment restricts the internee to a larger area, such as a camp, and (2) detention is a disciplinary sanction, while internment is not. It is particularly the second of these criteria that is crucial.
But this ‘detention’, a disciplinary sanction, is not the one that Judge Walton has in mind. What he talks about is battlefield capture or detention, and in that regard it is true that IHL provides for no explicit authority to capture or detain combatants on the battlefield, in the same way as it does not provide a right, but merely says that it would not be unlawful, to kill combatants on the battlefield. When it comes to battlefield capture of combatants or fighters rendered hors de combat, the IHL applicable to IACs and NIACs is exactly the same.
Thus, internment is certainly distinguishable from detention as a disciplinary sanction, or battlefield capture or detention. But the issue in the case at hand is NEITHER of these two types of detention. The case deals precisely with the question what happens AFTER an individual is captured. And this detention, detention on purely preventative grounds, without a criminal charge, to prevent a combatant from rejoining the hostilities or remove a civilian who poses a security threat, while such hostilities last, is what IHL terms as ‘internment.’ Contrary to what Judge Walton might think, internment and preventive detention are synonymous, and as such used interchangeably both in treaties and in literature. Thus, for instance, the ICRC Commentary to Art. 75 AP I provides the following definitions:
3061 “Arrested”: this means the period that a person is in the hands of the police, preceding the trial stage which is dealt with in paragraph 4, or prior to internment.
3062 “Detained”: in general this expression refers to deprivation of liberty, usually suffered in prison or other penitentiary institutions; here the term refers to detention prior to sentence or prior to a decision on internment.
3063 “Interned”: this term generally means deprivation of liberty ordered by the executive authorities when no specific criminal charge is made against the individual concerned.
3064 These three expressions are actually closely related and each refers to a different way in which a person can be deprived of his liberty. In part this terminology can also be found in human rights instruments (Universal Declaration, Article 9; Covenant, Article 9). Internment is the only concept which seems reserved for time of armed conflict.
(see also, for example, the commentaries to Rules 99 and 128 of the ICRC Customary IHL Study; or this article by Jelena Pejic, an ICRC Legal Advisor).
So, to sum up, the ‘detention’ that is at issue in Guantanamo is not battlefield capture incident to the use of force, but a prolonged period of deprivation of liberty subsequent to capture without a criminal charge. This is internment, pure and simple. That Guantanamo is not a model POW camp and that the detainees are subject to more security constraints than POWs would be does not mean that their detention is not equivalent to internment. Authority for such preventative detention does exist in IHL for IACs, both in regard of combatants and in regard of civilians (Art. 21 GCIII, Arts. 41-43 GCIV), but it does not exist in NIACs. Thus, of the US were engaged in an international armed conflict, as it was for a time in Afghanistan and Iraq, such authority to detain would exist even if there was no AUMF. No AUMF would be necessary to provide it, and to render the detention non-arbitrary.
But Judge Walton disagreed. However, even accepting his conclusion that IHL is silent on who may be detained, how can IHL then be used to fashion a standard of detention by construing the AUMF, as the Obama administration proposed? It either says something or it does not.
For Judge Walton, since the AUMF authorized the use of force, it also must have authorized detention, and the only issue is what was the scope of that authority (at 34). For their part, the petitioners argued that it is only persons who directly participate in hostilities that could be properly detained. Judge Walton quite rightly rejected this argument, since that particular standard only determines when can a civilian be targeted, not who can be detained.
But he then commits the same fallacy, by focusing on the text of Common Article 3 and Additional Protocol II, which distinguish between the ‘armed forces’ of parties to a non-international armed conflict, including non-state actors, and civilians. In Judge Walton’s view, it is the (undoubtedly customary) principle of distinction, which applies in all armed conflicts, that has a bearing on what is the proper detention standard. As he puts it:
The Court therefore rejects the petitioners’ argument that the laws of war permit a state to detain only individuals who “directly participate” in hostilities in non-international armed conflicts. Common Article 3 is not a suicide pact; it does not provide a free pass for the members of an enemy’s armed forces to go to and fro as they please so long as, for example, shots are not fired, bombs are not exploded, and planes are not hijacked. Consistent with Common Article 3 and Additional Protocol II, the President may detain anyone who is a member of the “armed forces” of an organization that “he determines planned, authorized, committed, or aided” the 9/11 attacks, as well as any member of the “armed forces” of an organization harboring the members of such an organization.
This approach is, with respect, based on a manifest non-sequitur. Though IHL in NIACs distinguishes between fighters (in a factual sense, without combatant status) and civilians, this has absolutely no impact on detention. A civilian in an IAC, even a civilian who does not directly participate in hostilities, can in principle also be detained on preventative grounds ‘if the security of the Detaining Power makes it absolutely necessary’, per Art. 42 GCIV. As far as NIACs are concerned, it is not CA3, but international human rights law that can provide for the outer limits of detention. (Though, in more extreme cases, a regime of indefinite detention could also run afoul of CA3′s prohibition of inhuman treatment). It is simply preposterous to argue that, by adopting CA3, the states parties to the Geneva Convention intended to limit the scope persons whom they may detain in an internal conflict solely to the (in practice often indeterminate) category of members of the opposing armed forces. Certainly nothing in the text of CA3 says so. That issue was intentionally left to domestic regulation, as well as to the (vague) outer bounds imposed by human rights law. (Thus, for instance, during the conflict in Northern Ireland, the United Kingdom did not intern only people who were members of the armed forces of the IRA (though of course the whole policy of internment was misguided).
Finally, Judge Walton in essence substituted his own, CA3-derived standard for detention with the ‘substantial support’ standard proposed by the Obama administration. He concluded as follows:
At first blush, the refinements made by the government to its suggested standard for detention appear to be of a minimal if not ephemeral character. Replacing a standard that authorizes the detention of individuals who “support” an enemy organization with a standard that permits the detention of individuals who “substantially support” that enemy doubtless strikes the casual reader as a distinction of purely metaphysical difference, particularly when the government declines to provide any definition as to what the qualifier “substantial” means. Indeed, the Court shares the petitioners’ distaste for the government’s reliance on the term “support” at all, laden as it is with references to domestic criminal law rather than the laws of war that actually restrict the President’s discretion in this area. …
Nevertheless, the Court is convinced upon closer inspection that the government’s revised standard, as explained by the government in its memorandum of law announcing that standard and, most especially, during the oral argument held before this Court on March 23,2009, comports with the laws of war as the Court understands them. The Court will therefore adopt the government’s standard for detention as its own, subject to the interpretation of that standard provided by the Court above. However, the Court will strictly adhere to its interpretation of that standard in considering the specific cases before it, and therefore will not, in applying that standard on a case-by-case basis, deviate from the limiting principles articulated above. With that understanding, the Court concludes as a matter of law that, in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms “substantially supported” and “part of” are interpreted to encompass only individuals who were members of the enemy organization’s armed forces, as that term is intended under the laws of war, at the time of their capture.
In reality, the detention standard adopted (or, rather, made up) by Judge Walton is much stricter than the one initially proposed (i.e. equally made up) by the Obama administration in its brief. Though apparently it qualified that proposal during oral argument, there could be doubts that the Obama administration will find the new standard to its satisfaction. On the plus side, the new standard clearly eliminates people like financiers, clerics or cooks from the corpus of persons who may be detained. However, the question remains whether the proposed standard is workable when it comes to persons detained far from actual armed hostilities in Afghanistan or Iraq, but who may clearly pose a security threat to the US and the world at large. Were, say, Khalid Sheikh Mohammed and Abu Zubaydah really members of the ‘armed forces’ of Al-Qaeda? How does one tell whether someone is a member of the ‘armed forces’ of what is more of an umbrella organization or a transnational terrorist network than a hierarchically structured military organization? What about all those people detained in Pakistan, who may never have fired a shot in Afghanistan?
In conclusion, Judge Walton’s efforts, admirable though they are, are just a further demonstration of the inability of the ‘global armed conflict’ theory to deal with the issue of preventive detention of suspected terrorists. This is not what IHL was made for. By I this I don’t mean that IHL is obsolete, but that its use for these particular circumstances is entirely inappropriate. If preventive detention is to be used as a (limited) tool for fighting international terrorism, then it is for legislatures to devise proper standards and safeguards, within the bounds of human rights law.