IHL Does Authorize Detention in NIAC: A Rejoinder to Rogier Bartels

We are grateful to Rogier Bartels for his thoughtful comments on our recent post and article in which we argue that IHL authorizes State parties to a NIAC to detain suspected insurgents. In this rejoinder, we briefly respond to Rogier’s main criticisms of our argument.

Equal protection versus equal status

The crux of Rogier’s criticism flows from his understanding of what the principle of equal application requires. For Rogier—as well as for Leggatt J in Serdar Mohammed and Dapo Akande and Lawrence Hill-Cawthorne (see here and here) —‘a principle of IHL has to apply equally to all sides; otherwise it cannot be a principle’. All parties to a NIAC, both States and non-state actors, must have exactly the same rights (including authorities) and obligations under IHL. Thus, our position that IHL authorizes States (but not organized armed groups) to detain produces unacceptably ‘asymmetrical rules’.

As we explain in our article, this ‘symmetry’ objection stretches the principle of equal application beyond its breaking point:

If the principle [of equal application] demands that all belligerents must enjoy the same status and rights and CA3 does not confer the full panoply of belligerent status and rights on non-State actors, then the only logical conclusion is that the parties to the Geneva Conventions and AP II gave up their status and rights as States and assumed the same status and rights as non-State actors. This not only contradicts commonsense, but also the plain language of CA3, which declares that it does not affect the legal status of the parties, State and non-State alike, to the conflict. In fact, CA3 thereby conserves any pre-existing inequality between the belligerent status and rights of State and non-State parties to a NIAC.

The principle of equal application requires that the protections and obligations under IHL apply to all parties to an IAC or NIAC whatever the lawfulness of resort to force under the jus ad bellum. Entitlement to protection is not dependent on how the conflict began or the relative justice of the causes involved. Similarly, the scope of IHL obligations should not be linked to organizational capacities or military rationales. However, none of this alters the fact that there is an undeniable asymmetry in the status of parties to a NIAC. One is a State and the other is not. The fact that an internal situation rises to the level of a NIAC does not transform the State party into a non-State actor or vice versa. As René Provost notes in his comments on the debate between Marco Sassòli and Yuval Shany referred to by Rogier:

Equality as it emerges from the ways in which it is invoked in discussions of the laws of war evokes an idea of equality as necessarily grounded in sameness. …[H]owever much we might push to make non-state armed groups like states, having courts with due process and so on, in the end they are not states at all. (here, at 439–440)

Our position preserves equality of protection while recognizing inequality of legal status and authorities under IHL. This balance neither delegitimizes IHL nor reduces the incentive (on either side) to comply with obligations. Rogier’s charge that this approach is unfit to bear the name ‘IHL’ is informed by his own view that IHL rules applicable in NIAC are purely protective.

Regulation v. authorization

Rogier also objects that we ‘fail to acknowledge’ the distinction between regulation and authorization and fail ‘to appreciate the realism that underlies IHL’. However, our position is not based on the assumption that IHL must authorize status-based operations (targeting and detention) simply because it regulates warfare. It is, of course, entirely possible for international law to regulate a matter without authorizing it. This is why, as Rogier notes, we ground our position in the ‘rationale and principles of IHL’.

Similarly, we do not deny that IHL is pragmatic or realistic in its outlook. Neither, however, is IHL entirely agnostic when it comes to the legality and legitimacy of using lethal force against insurgents. Rogier’s eloquent historical narrative of the development of the law of NIAC is, of course, broadly correct. However, his view that the law contains ‘only protective rules’ rests on an incomplete account. First, contrary to Rogier’s suggestion, Article 4 AP II was not simply transplanted from Article 75 AP I, but was based directly on Common Article 3 of the Geneva Conventions of 1949 and the relevant provisions of the International Covenant on Civil and Political Rights  (see Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Vol VIII, 324). More importantly, the reference in Article 4 AP II to ‘[a]ll persons who do not take a direct part or who have ceased to take part in hostilities’ was understood to extend to an adversary hors de combat (Official Records, Vol VIII, 335). This is an important point. It illustrates not only how insurgent fighters were considered as ‘combatants’ throughout the negotiations, but also that their treatment follows the same logic as the treatment of combatants in an IAC (status-based targeting subject to the exception applicable to those hors de combat).

Second, whatever the early origins of the law of NIAC, things have moved on. There has been greater convergence between the laws of IAC and NIAC, including in particular the rules on targeting. Moreover, it is now necessary to accommodate the parallel application of IHL and IHRL as separate regimes without rendering either redundant. Rogier’s position would require that primacy always be accorded to the more restrictive rules of IHRL, at least under the ECHR (and in the absence of derogations or Court-made ‘accommodation’). As a result, when it comes to status-based operations, IHL would be deprived of any meaningful effect. Our point in all of this is that the existence of authorization to detain is implied and demanded by the logic of IHL in NIACs.

Transplanting the law of IAC?

Rogier objects that reliance on the permissive aspect of the principle of military necessity would involve transplanting ‘wholesale’ the law of IAC into NIAC. Our argument does not depend on making a new conceptual leap. States have already recognized the legitimacy of using lethal force against ‘combatants’, based on their status as fighters and by extending the rules on targeting to NIACs. (We suggested that the ECtHR recognized this practice in Korbely. Yes, the reasoning of the Hungarian courts in that case was less than convincing, but the ECtHR made its own findings. While the ECtHR did not distinguish between a civilian participating directly in hostilities and a person in continuous combat function, the key point is that it based its analysis on the distinction between combatant and non-combatant status under IHL). Second, however, it does not follow that military necessity in NIAC is as broad as in IAC. The ‘complete submission of the enemy’ may not necessarily mean the same thing in each context.  However, this does not undermine our argument that the principle of military necessity applies in NIAC.

Capture, release and kill?

In our article, we criticize Leggatt J’s reasoning and put forward a positive case for a legal basis for States to detain insurgents in NIAC. Some of Rogier’s objections to our position are based on a conflation between these separate arguments. For example, we argued that Leggatt J’s finding that fighters may be targeted or detained only if they represent an ‘imminent threat’ would lead to an absurd circle of capture, release and immediate re-capture or targeting. Our point is that such an absurd circle does not reflect the logic of IHL in NIAC (nor is it compatible with the letter of the law, as Rogier helpfully points out).