The Obama Administration’s Interpretation of the Authority to Detain at Guantanamo: Some Areas of Progress

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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

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    Andreas Paulus says

    March 19, 2009

    Dapo,
    With great respect, I think you fall behind the discussion on Marko's previous post on the matter. In the end, almost everybody involved agreed that the Memo had (and only could have) found the authority to detain IN DOMESTIC LAW, only that it interpreted domestic law, namely the AUMF, in accordance with the law of inter-national (sic!) armed conflict (disregarding its scope). Now you seem to submit that ihl is perfectly applicable depending on the jus ad bellum question of whether or not the territorial State has consented to the use of force against a non-State armed group or not. This is not what the Geneva Conventions say. Rather, common Article 2 § 2 (§ 1 would not be applicable in the absence of a inter-State conflict) is only applicable in situations of occupation when these do not meet resistance. There is an obvious gap here.
    The problem is that both the Bush and the Obama administration would assert to have a power to detain regardless of a situation of occupation (you strike without staying). To such an on-off-measure, ihl does not apply. At least this is the point Marko and I were making.
    In addition, you also seem to entertain the notion that there is something like (illegal) belligerency or combatancy in non-international armed conflict. However, this is not so. It simply does not protect civilians taking part in hostilities, and leaves the question of combatancy/belligerency to domestic law or jus ad bellum (cf. Art. 1 § 4 AP I).
    I am happy with many things the Obama administration is doing, but, I am afraid, the abuse of ihl for finding a power to detain is not among them. Only domestic law, not international law, can provide such authority.
    Best wishes, Andreas

    Dapo Akande says

    March 19, 2009

    Andreas,

    To take your penultimate point first. I do not say there is anything like combatancy in non-international armed conflicts. I agree that international law has nothing to say on the legality of taking up arms in a non-international armed conflict. However, I do not agree that what we are faced with is a non-international armed conflict (see below).

    Also, I do not dispute at the new administration's brief finds the authority to detain in the AUMF statute. However, the administration is not relying solely on domestic law but is it is claiming that domestic law confers authority to detain in circumstances where international law confers authority to detain. The brief (p. 1)says that "the detention authority conferred by the AUMF is necessarily informed by principles of the laws of war." There is an argument to be made that reference to the laws of war is reference to a US common law laws of war. However, the administration does not argue based solely on US law nor does the brief suggest that laws of war refers to domestic US law. The brief (p. 1) says that: "The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law." This is clear reference to international law. The brief seems to me to be clear in asserting that international law confers authority to detain though the brief is unclear on which precise aspects of international law confer that authority in this particular circumstance and reasons by analogy from the situation regarding inter-State conflicts. Further evidence of reference to international law authority to detain is to be found in pp. 5-6 "Indeed, long-standing U.S. jurisprudence, as well as law-of-war principles, recognize that members of enemy forces can be detained . . ." (citing US cases as well as Art. 4 GC III). Note that this sentence says US jurisprudence AS WELL AS law of war principles and not US jurisprudence including law of war principles.

    I do take the position that Common Art. 2, para. 1 is applicable whenever there is a use of force by a State on the territory of another State without its consent. Even if that use of force is directed against a non-State actor. When a State uses force on the territory of another State without its consent, it is a use of force directed against the territorial integrity (and even the political independence) of that other State. This should automatically be regarded as an armed conflict between those States and is an international armed conflict. We know that the fact that the other State does not respond to a use of force does not make it any less an armed conflict between those States. Also, there is nothing in IHL that says that the political motivation behind the use of force affects the existence of an armed conflict or the application of IHL. At a minimum, the attacking State must be bound by the rules regarding targetting in international armed conflicts independently of what the attacked State does. The attacking state cannot say we are attacking rebels in State B and we consider this to be non-international therefore we ignore the extensive rules regarding targetting in international armed conflicts (which may not be fully replicated in the law of non-international armed conflicts). Once you concede that those rules apply then you also accept that there is an international armed conflict.

    I accept that even if one agrees that there is an international armed conflict between the attacking state and the State on whose territory the attack takes place, the application of the rules relating to detention is problematic. The detainees in a conflict where the fighting is solely between a State and a non-State group probably won't fit into GCIII (unless they fight for a State). GCIV may well apply but that would only be in cases where the nationality conditions in it are met. Most of the detainees in Guantanamo would probably be excluded from the strict application of GCIV as they would be nationals of neutral States. However, this is where I think the administration's point about reasoning by analogy comes into play. I don't consider it an abuse of international law to say there is a gap in international law here and we should resolve the question in line with analogous situations. That is an attempt to make the law clearer not to misuse it.

    John C. Dehn says

    March 19, 2009

    Dapo,

    An interesting take on the brief. My earlier responses to Marko only served to emphasize that the brief writers are missing a fuller view of U.S. law on the subject, apparently including its constitutional component. To emphasize the point, I provide the following excerpt from an 1850 Supreme Court decision:

    "[a] war, therefore, declared by Congress, can never be presumed to be waged for the purpose of conquest or the acquisition of territory; nor does the law declaring the war imply an authority to the President to enlarge the limits of the United States by subjugating the enemy's country. The United States, it is true, may extend its boundaries by conquest or treaty, and may demand the cession of territory as the condition of peace, in order to indemnify its citizens for the injuries they have suffered, or to reimburse the government for the expenses of the war. But this can be done only by the treaty-making power or the legislative authority, and is not a part of the power conferred upon the President by the declaration of war. His duty and his power are purely military. As commander-in-chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutions and laws beyond the limits before assigned to them by the legislative power."

    This quote recognizes two things. First, that implied powers are broad and include all military measures necessary to defeat and subdue the enemy designated by Congress (scary in light of the scope of the AUMF passed after 9-11). Second, that implied powers cannot include those constitutionally dedicated to another branch of the U.S. government.

    In other words, there are both unquantifiable implied powers and discoverable implied limits on those powers. In other cases, the court is clear that international law forms a part of those implied limits. Thus, to say that IHL informs the BREADTH of implied powers is accurate but slightly misunderstands their nature. Their substance is not "informed by" IHL, their limits are. Their substance is informed by the need to successfully prosecute a war by employing the military forces and capabilities at the Commander in Chief's disposal. They are, however, limited by any clearly applicable conventional or customary IHL, and - to the extent not controlling - by their underlying general principles. That is where I hope the administration is heading in its understanding of the Commander in Chief powers.

    Regarding the first paragraph of your response to Andreas, I am curious whether you think that current attempts to draw fine distinctions between the status of fighters in the IHL of international and non-international armed conflict are that helpful. In a draft article, I note that the concept of a "combatant adversary" in non-international armed conflict is mentioned in the ICC Statute re: the crime of treachery (Art. 8(2)(e)(ix)). The modern trend in IHL scholarship attempting to confine the use of the term "combatant" to only those acting on behalf of a sovereign or other entity with international legal personality appears to be (1) ahistorical, and (2) inconsistent with the fundamental understandings, concepts and principles of armed conflict.

    It seems to me that if we fail to recognize that there are individuals on both sides of a non-international armed conflict that may be engaged/targeted based on their status rather than their conduct, we are fundamentally adopting a law enforcement/self-defense model for non-international armed conflict. While this might be perceived as preferable from the perspective of fundamental human rights , I am uncertain whether it fits within the fabric of IHL. Implicit in the recognition of any "ARMED CONFLICT" not of an international character are the fundamental aspects of what makes something an armed conflict in the first place, rather than law enforcement on steroids.

    I think the above discussion is why the administration feels the need to reach to the IHL of international armed conflict to inform the substance of implied powers. Your disavowal of the notion that IHL provides any law on the subject of fighters in non-international armed conflict is understandable. I am just wondering what underlies it and how strong it is when you think of your above arguments with these thoughts in mind.

    Dapo Akande says

    March 19, 2009

    John,

    Thanks for your commments. Let me respond to your question about the distinction between the status of fighters in international and non-international armed conflicts. Here, I agree with Marko. In international armed conflicts IHL provides for a category of combatants and says that these combatants have a right to participate in an armed conflict and may not be prosecuted merely for taking part in hostilities. This is the combatants privilege or combatants immunity. It is implicitly in GC IIIand more explicit in Art. 43(2) of Add. Protocol I. This immunity is also a rule of customary international law.

    In non-international armed conflicts, IHL does not give those who fight on the side of the non-State actor the right to take part in hostilities. This for the reasons that Marko points out in his post. Thus, States are entitled to criminalise the act of taking part in hostilities, killing, destruction of property, etc even if there has been no violation of IHL. But it is domestic law that does the job of criminalising. All international law does is to leave it free to domestic law to take whatever position it wishes.

    So we have a fundamental distinction here between international and non-international armed conflicts. BUT this is not to say that the IHL applicable in non-international armed conflicts has nothing to say about the status of fighters. It does IHL in non-international armed conflicts still makes a distinction between fighters and civilians as this is important for the purposes of the law of targetting. Civilians may be targetted but fighters may not. So we need to know who the fighters are. Add. Protocol II famously uses the term civilians but fails to define it or to tell who is not a civilian and therefore open to targetting. But customary international law does define who a fighter is. They are members of organized armed groups.

    So we can look at three aspects of IHL that touch on the status of people:

    - targetting :
    IHL in both international and non-international armed conflicts makes determinations about the status of fighters

    - detention:
    IHL in international armed conflicts classifies individuals and says who can or cannot be detained,, and speaks to the conditions of detention. IHL in non-international armed conflict only speaks to the conditions of detention. It doesn't say anything about who can be detained

    - prosecution
    IHL in international armed conflicts says "lawful combatants" may not be prosecuted merely for taking part in the armed conflict. IHL in non-international armed conflict provides no immunity to anyone for prosecutions under domestic law. All that Add. Protocol II does is to encourage amnesties.

    I don't think that this is in any way inconsistent with the fabric of IHL. However, there is some truth to your point that the law of non-international armed conflicts is a bit like law enforcement. This is precisely the point, international law in that internal situation leaves states able to enforce their laws (eg laws regarding treason).

    Andreas Paulus says

    March 19, 2009

    Dapo,
    Thanks for your careful response. Just to clarify a point: Of course the rules on the conduct of hostilities do apply during an anti-terror raid over borders. But a power to detain is not contained in ihl. I continue to believe the best - and most appropriate - interpretation of the Obama administration filing is a domestic authority tempered by applicable ihl. This would indeed put the Obama administration on a much more sure footing than its predecessor.
    Best, Andreas

    John C. Dehn says

    March 19, 2009

    Dapo,

    My recent article in the JICJ discusses the distinctions you mention in relation to the Military Commissions Act and the history of punishing law of war violations in the U.S. I understand them well.

    The point I made to Marko, and will now make to you, is that the IHL of international armed conflict DOES NOT expressly or affirmatively authorize detention or targeting of combatants.

    As to detention, it (GPW "who have fallen into the power of an enemy" and AP I ""who falls into the power of an adverse party") governs status of combatants (prisoner of war or not), conditions of detention, punishment and ancillary matters when detention occurs. The power to detain combatants (as opposed to civilians) comes only from the concept of military necessity. Nowhere does IHL governing international armed conflict affirmatively authorize the detention of combatants.

    Likewise, targeting of combatants falls only within the broad scope of attacks on a military objective in Arts. 48-49, & 57 of AP I. One can argue whether those provisions expressly authorize attacks or delimit their scope. I believe the language favors the latter. It does not expressly or affirmatively authorize attacks, it only defines them, recognizes that they are a fundamental aspect of armed conflict and places limits on them when they are used (for example, that they be directed only to military objectives).

    This returns to the administration's brief. The powers to attack and detain an enemy are only implicit (or perhaps better stated as recognized as fact) in the IHL of international armed conflict. I submit that they are therefore also implicit in IHL's recognition of anything titled non-international ARMED CONFLICT. Nevertheless, it is certainly recognized for both types of conflicts in U.S. domestic law, under both its common law of war and constitutional law.

    Current IHL scholarship seems to be obscuring the point that fighters in NIAC may be targeted and detained as fighters. That they have no combatant immunity provided by IHL is a given, unless the domestic law governing NIAC provides it either explicitly or implicitly (as happened during the U.S. Civil War). This is fully consistent with the Grotian tradition of "mixed" wars, public on one side, private on the other.

    It appears to me that lawyers raised in the civil law tradition are, quite naturally, searching for positive domestic law on a point for which IHL does not even have positive law. Whether that positive law is required in NIAC is therefore dependent on the requirements of the domestic constitution and legal system of a nation engaged in it.

    The real problem here, as I see it, is that if we don't maintain theoretical consistency in the fundamental nature of what is an armed conflict, we threaten the entire body of law governing NIAC (regarding which Tadic and the Rome Statue took a large leap forward). It will become subsumed and replaced with human rights law. I am not sure if that is a step forward when nations are confronted with existential threats from non-state actors, either internally or transnationally.

    Marko Milanovic says

    March 19, 2009

    Dapo,

    Great post, just a few comments on the classification of the purported armed conflict with Al-Qaeda.

    First, on the Hamdan decision. I agree that your reading of Hamdan as not necessarily saying that the conflict with Al-Qaeda is non-international in character is a possible one, and that as matter of IHL it is the better one. But textually, just on the face of what the judgment says, the more plausible reading is that the Court thought that the conflict was non-international, because its parties were not states:

    "The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations."

    Hamdan, slip op. at 67.

    Second, it is true that the Obama administration brief does not say what the administration's reading of Hamdan is. But it also doesn't say that it backtracks from the interpretation of the decision by the Bush administration, that the conflict was a non-international, CA3 one.

    Third, as for your argument on the possibility of an international armed conflict existing between a state and a non-state actor. It is certainly true that such a possibility is theoretically there, for instance through recognition of belligerency, or Art. 1(4) of AP I. But your more general argument is somewhat more problematic, even though for the most part I could actually agree with it.

    Let's consider the Israel/Hezbollah conflict. You say that this conflict can be qualified as an international one, because Lebanon has not consented to the Israeli invasion of its territory. I fully agree. But this would then have been an international armed conflict between Israel and Lebanon, i.e. between two states, NOT an int armed conflict between Israel and Hezbollah. In this conflict, Hezbollah fighters were for the most part civilians taking a direct part in hostilities, but the conflict was nonetheless an inter-state one, even if the official Lebanese side was mostly passive.

    This type of conflict cannot exist between the US and Al-Qaeda, with the exception of the initial invasion of Afghanistan. The US government is arguing that it is engaged in an armed conflict with Al-Qaeda AS SUCH, and EVERYWHERE, all over the world. There is, today at least, no state which is engaged in an international armed conflict with the US, in which Al-Qaeda might be a participant, as Hezbollah was in the example above.

    Thus, in short, I don't see how it could be argued that an international armed conflict could exist between a state and a non-state actor as such, with the caveats given above. Unlike non-international conflicts, international armed conflicts presume an equality of status. In other words, if accepted that Al-Qaeda can be a party to such a conflict, if its fighters started wearing uniforms etc starting tomorrow, they would be entitled to the privilege of belligerency, POW status and so on. To me that is conceptually impossible, as well as practically unlikely.

    Dapo Akande says

    March 19, 2009

    John,

    You are of course right that there is no provision in GCIII or API that explicitly says "parties have the right to detain combatants". I agree that IHL relating to detention of combatants (i.e the law regarding POWs) starts from the factual premise that these people have been captured. However, it doesn't just recognise that fact it must be regarded as providing affirmative authority to detain, i.e to continue to keep, by regulating not merely how they are detained but for how long they can be detained. All of this detailed regulation only makes sense against a background of a rule that gives permission to detain. That is a rule of customary international law as affirmed by the practice of States. The same is true for the targetting of combatants. The starting point is an affirmative permission to attack combatants.

    I don't agree that military necessity is the basis for either the permission to detain or to attack. It is not the case that it is always necessary as a military matter either to detain enemy combatants or to attack them. To suggest that military necessity is the basis of the rule is to say that attacks against combatants are not always permitted but only where military necessity permits (some people take this view) but I think State practice is against that view.

    Your point could be interpreted as saying that there is a customary rule which allows detention in non-international armed conflicts. You base this on some sort of basic unity of the concept of armed conflict and what is permitted in an armed conflict. However, the notion of a basic unity of the concept has been categorically and repeatedly rejected by States. They have done so despite suggestions that the there should be such unity. Both at the time of the drafting of the GCs and the AP, there were suggestions of unifying the law regarding international and non-international armed conflicts. These proposals were rejected leaving us with the division that we currently have. The drafting of the Rome Statute again reveals that states do not accept that there should be any consistency or unity in the notion of an armed conflict. They again chose to make careful distinctions between international and non-international armed conflicts (even overruling some of the specific points made in Tadic). So one cannot then argue that because something is permitted in one type of armed conflict, it is implicitly permitted in the other. States have chosen to leave the law of non-international conflict as differently regulated.

    One can take the ICRC Customary International Law study /Tadic approach that customary international humanitarian law blurs the division but one area where states have clearly not accepted a blurring of the division is with regard to issues of detention and prosecution.

    John C. Dehn says

    March 19, 2009

    Dapo,

    Thanks so much for the thoughtful response. Your point on the issue of military necessity is well taken. I think the essentiality of an act, such as detention, to the defeat of the enemy is so far subject to the discretion of a party to the armed conflict as to be a virtually empty standard.

    I agree that states have rejected a perfect unity between laws governing IAC and NIAC. I don't really think that is true as a matter of targeting or detention of the adversary as a matter of customary IHL. I believe they all do it with the understanding that they have the legal authority to do so. They refuse to recognize its legitimacy if engaged in by a non-state actors (except in a very limited way in AP I). This is not surprising.

    You argue that detention in IAC is affirmatively supported by customary IHL. I fail to see how state practice does not support it in the IHL governing NIAC as a matter of CIL (otherwise why regulate it in CA3 and AP II). If it is not, all detention in NIAC is basically prohibited hostage-taking. If it is supported in NIAC as a matter of CIL, it is of course subject to applicable domestic, conventional or customary IHL limits. But these limits always apply in both international and non-international armed conflict.

    Maybe we are really in the land of Lotus. If IHL permits it, it is not prohibited. The authority to do anything at all - attack, defend, observe, etc. - must therefore be based in domestic law, rather than affirmatively supported by IHL.

    Dapo Akande says

    March 19, 2009

    Marko,

    I think that the Supreme Court in Hamdan didn't quite know what it was doing or what to do as regards the classification of the conflict. You are right that they refer to the specific wording of CA3 ["conflict not of an international character"], interpret it and say that it applies. This suggests that they took the view the conflict with Al-Qaeda is non-international. On the other hand, they begin their analysis of the question by saying explicitly they are not deciding that there is even a conflict with Al-Qaeda which is separate and distinct from that with the Taliban and and by saying that CA3 AT LEAST applies. They also finish their analysis by citing with approval dicta of the ICJ in Nicaragua and ICTY in Tadic that CA3 applies as a minimum yardstick in all armed conflicts (ftnote 65).

    On the general point about transnational conflicts between States and non-state actor my point is not so much that a conflict between the State and the group as such could be an international armed conflict. Rather I was pointing out that in so far as the conflict is on the territory of another State and without its consent, then both parties are involved an international conflict. That conflict is part of and linked to the conflict between the two States because, at least in so far as targetting goes, you cannot separate the two. Any attack by the State involved in fighting has to meet the rules of an international armed conflict because otherwise it would be violating its obligations to the State on whose territory the conflict is being waged.

    My point above is supported by the Armed Activities case (DRC v. Uganda). In that case the ICJ applied the rules regarding international armed conflict to the actions of Uganda in the DRC. I don't think any fighting took place between the Ugandan Armed forces and the Congolese Army. Sure, there was a situation of occupation in Ituri but Uganda was found to violate IHL even in places outside Ituri and the ICJ did not condition its findings of violations on the establishment of an occupation. Uganda was in the DRC to fight non-state groups. It also engaged in fighting with Rwanda in and around Kisangani (which is not in the Ituri region). The ICJ found that Uganda had violated its IHL obligations to the DRC (not to Rwanda) with respect to fighting against Rwandan forces on DRC territory. Thus, the Court was accepting that there was an armed conflict between Uganda and the DRC even though the DRC was not involved in the fight. The same would be true even if the fighting in Kisangani had involved Uganda and a non-State group and killed the same people and caused the same destruction.

    So the point is that fighting between a State and a transnational group outside the territory of that State and without the consent of the territorial State is part of an international armed conflict. Perhaps I shouldn't go so far as to say that the conflict between the State and the group is an international armed conflict. I certainly do not accept that the conflict with the group as such and everywhere is an international armed conflict. The overall "conflict" with the group may well not be a single armed conflict for IHL purposes and may have to be territorially divided so that the fighting in some States is governed by the law relating to non-international armed conflicts. For example any fighting within the State concerned must be regarded as a non-international conflict.

    This is messy but I think that's where we are. I also think it is important not to accept the view that conflicts between a State and a non-State group are as such non-international armed conflicts. The repercussions for the law relating to targetting and the conduct of hostilities would be unfortunate. To accept such a view would also be to deprive States (like the DRC or Lebanon or Iraq) of rights which they have and to free other states (like Uganda or Israel or Turkey) of their obligations. There is a tendency to view these matters through the lens of the so called war on terror. However, these are issues that are of great relevance to many conflicts around the world.

    In conclusion, I readily admit that even if part of the US conflicts with Al-Qaeda (that part which took place in Afghanistan as part of the conflict with the Taleban) was governed by the rules relating to international armed conflict, that does not provide all the answers regarding detention of Al-Qaeda members.

    Tamás Hoffmann says

    March 20, 2009

    Dapo,

    I have doubts that the classification of transnational conflicts is as clear-cut as you suggest.

    I second Andreas that the condition of consent brings dangerously close ius ad bellum and ius in bello. The modern regulation of IHL is based on the factual existence of armed conflict, which leads to the conclusion that an international armed conflict is indeed armed hostilities between nations.

    It's been some time that I last read the Congo vs. Uganda decision but I think that it was based on the fact that Uganda breached its primary duty as an occupying power to ensure order. However, it explicitly denied the existence of a state of occupation when it found that Ugandan armed forces had not exercised effective authority over Congolese territory, which implies that there could be situations when foreign troops station on the territory of another state without the latter's consent - an apparent violation of GA Res. 3314 - but there is still no international armed conflict in the absence of actual hostilities and occupation.

    Moreover, even if there is indeed an international armed conflict between the foreign and the host state, that does not necessarily mean that the hostilities between the foreign state forces and the non-state actor(s) take place in the framework of that conflict.
    Both the Nicaragua case and the ICTY jurisprudence accepted that armed conflicts can take place parallelly, even in the same geographical location. Consequently, one could very well conclude that in such a situation there is an international armed conflict between the two respective states and a non-international armed conflict between the foreign state and the non-state actor.

    This solution seems more realistic to me than simply envisaging the entire situation as a single international armed conflict. For instance, during transnational conflicts aimed exclusively against non-state actors states routinely deny that they are engaged in an international armed conflict, even though the host state usually protests the violation of its sovereignty. (I have written an article on this question, hopefully it will be published soon in the 2007 Hague Academy Research Centre's volume.)

    Dapo Akande says

    March 20, 2009

    Dear Tamás,

    Thank you for your comments.

    I agree with the general principle that the jus ad bellum and the jus in bello ought to be kept separate. However, jus ad bellum principles can and must inform whether or there is an international armed conflict under the jus in bello. Where there is a use of force by one State on the territory of another State, it is the jus ad bellum that tells us whether that use of force is against the other state and thus a conflict between the two. So if there is no consent to the use of force, then the use of force is against the other State. If so, there is a conflict between the two. It makes no sense to say State A has used force against State B (and thus incurs international responsibility to State B) but there is no armed conflict with State B. However, you don't seem to disagree me on this point.

    Where we do disagree is whether in the context of the international armed conflict between the two States, the fighting with a non-State group is part of that conflict and also governed by the rules concerning international armed conflict. You say we have 2 conflicts: one international between the two states and the other non-international between the State and the non-State actor. I think this is the ICRC position too. This reliance on the notion of mixed conflicts is problematic for the following reasons.

    (a) Both the ICJ in Nicaragua and the ICTY in Tadic were not dealing with the type of conflict we are dealing with here. The non-international conflict they were dealing with was between a State and a non-State actor taking place on the territory of that first State. Although the State in question (Nicaragua or Bosnia) was also involved in an overlapping conflict with a foreign State (the US or the FRY) there is a very important difference. To accept the involvement of the foreign State as transforming the conflict with the non-State actor is to provide an incentive all domestic rebels to seek foreign intervention. It would transform an internal matter, where States wish to have (and arguably the law provides) more limited regulation, to one where more extensive regulation applies. States are not prepared to accepted this, otherwise all efforts to keep the regulation of non-international armed conflicts distinct goes out the window. The ICJ and ICTY decisions simply reflect this.

    b) In the case of conflicts with non-State groups on the territory of another State, there is little reason to have the more limited regulation. This is not an internal matter. The autonomy reasons for having more limited regulation of non-international armed conflicts do not apply. Importantly, the State on whose territory the conflict is being fought has interests at stake. As I pointed out earlier, the rules relating to the conduct of hostilities are the main area where the interests of the "host State" (the State where the conflict takes place) are most at play. IHL applicable in international armed conflict provides detailed rules in this area. Rules which do not apply as a matter of treaty law in non-international armed conflicts (for example the prohibition of targetting civilian objects or the rule preventing starvation as a means of warfare). Where hostilies are conducted against a non-State actor on territory of another State (and without its consent) these are also uses of force against the host State (and therefore part of the conflict with that State). It is impossible to separate the two things. The very conduct of hostilities against the non-State actor is also conduct of hostilities against the host State. So the attacking State is bound by the rules regarding international armed conflicts even if the object of its attacks are persons associated with the non-State group. The principle of equality would suggest that the non-State group is also bound by the same rules when acting in the territory of the host state.

    - In the Armed Activities case, the ICJ said there is only occupation when the foreign territory is under the effective authority of the occupier. But the absence of occupation does not mean the absence of any obligations, only the absence of obligations under the law of occupation. The Court expressly applied IHL to situations outside the occupations scenario, eg in Kisangani.