Armed Conflict With Al Qaida: A Response

by John Bellinger

Let me first say thanks to all that have taken the time to respond to my first posting. I had originally planned to wait until Friday to provide a comprehensive response to the various issues raised, but I have been so impressed by the quality of the dialogue so far that I’ve decided to post this interim response tonight. I apologize that I can’t provide responses in real time and that I can’t respond to all of the questions, but my government responsibilities prevent me from doing that. I should also note that I have addressed many of the points in my post from this morning on Common Article 3, or will address them in my next post tomorrow on unlawful enemy combatants. I will keep my responses here to those comments most directly responding to yesterday’s entry.

I’ll begin by thanking Charles Garraway and Eric Posner for taking the time to respond in depth to my comments. With regard to Charles’ comments, I appreciate that he agrees with us that it is possible to be at war with a non-state actor, that we can hold combatants in that war until the end of the conflict, and that at the least, we can agree that the conflict in Afghanistan, in which the vast majority of our detainees were picked up, continues.

Charles does seem to suggest that criminal law should be used to prosecute al Qaida operatives found outside Afghanistan (Marko also raised a similar point). As I have noted, we have used criminal law to prosecute some al Qaida operatives found in the United States, such as Zacharias Moussaoui, but I would ask you to consider—in addition to the legal arguments underpinning wartime detention—the practical difficulties of prosecuting an al Qaida member not found in the United States. To begin with, our criminal courts simply do not have extraterritorial jurisdiction over many of these individuals or many of their activities. Some of them had never set foot in the United States or planned specific criminal acts in violation of our federal criminal statutes. One thing that all of our countries have learned since September 11th is that we are facing a different kind of terrorism than we used to face, and we have to expand the reach of our criminal laws. There has been a flurry of activity in the United States and other countries to do just that. But the current effort to expand our criminal laws cannot be made retroactive. Therefore, in many cases there would have been no legal basis to try al Qaida operatives in our courts for violations of our domestic criminal laws. Moreover, in many instances the evidence against these operatives was obtained on the battlefield, even where the detainees themselves were captured elsewhere. Our federal courts require a chain of custody to be presented for all evidence introduced at trial, and this could pose a great deal of difficulty for our forces. Ultimately, we think we are not legally obligated to try al Qaida combatants under the laws of war, but have set up military commissions to prosecute those who have committed the most serious violations of the laws of war.

Eric Posner invites me to say what is as stake in the argument about the applicability of international law to the conflict with al Qaida. Fundamentally, what is at stake is the reputation of the United States as a nation that takes international law seriously and that does not bend the law to meet our immediate needs. It is true that when novel situations present themselves, governments have some flexibility in how they adapt traditional rules to new realities. But United States cannot regard international law as something to be completely redone whenever a new challenge presents itself, and must care about the implications down the road of the positions that it decides to defend today. A reputation for consistency and reasonableness in its approach to its international obligations is valuable to the United States. Without that, other countries will be less willing to cooperate with us and live up to their own international law commitments. Even though international law constraints are sometimes limited, they are nevertheless real and substantive and we cannot maintain that we are a nation that abides by law if we say we have the choice of disregarding international law. As lawyers, we must take into account not just the texts and decisions that make up the building blocks of international law, but also the quality and integrity of the arguments we make and the analogies we draw in framing our positions on international law. It is in the broader interests of the United States not to let these arguments become merely a matter of convenience.

Turning now to some of the other posts, “Non liquet” asks how we will know when the war with al Qaida is over. This is an important question. Of course, in any war, you don’t know how long the war is going to go on. There have been wars that have gone on for five years, ten years, thirty years, one hundred years. But the fact that a particular conflict with an enemy may go on indefinitely does not mean we should simply release all members of the enemy we are holding so long as that conflict is continuing. There is a reason that under customary principles of international law, you may hold the people until the end of a conflict, and that is to keep dangerous people off the battlefield.

Nevertheless, we recognize that the conflict with al Qaida is not a traditional conflict that will end with an armistice agreement on a battleship. We could reach the point where we have so decimated al Qaida that there may be so few operatives left that we don’t think they are actually engaged in a major war with us. But as a practical matter, with respect to the people we are holding in Guantánamo, we have added an annual administrative review process to determine whether an individual detainee continues to pose a threat to the United States or its allies. In a sense, we ask if the war is over with respect to that person. Even if al Qaida continues to be fighting us, if an individual can credibly say, “I want to stop fighting, I want to just go back and join my community,” and in fact the community will credibly commit, “We will take responsibility for this person, and make sure that he doesn’t go back to fighting,” then we will release people. We have released or agreed to release, subject to their countries taking them back, more than one hundred people pursuant to that process. Thus, the ARBs balance our authority to detain fighters so they do not come back to fight us again against our desire not to hold anyone any longer than necessary.

Marko asks how the United States interprets the Supreme Court’s decision in Hamdan. As I described in depth this morning, the Supreme Court has held that the armed conflict with al Qaida is not a conflict between states, and that the conflict is governed by Common Article 3 of the Geneva Conventions. As Marty Lederman accurately anticipated, the Administration reads the Hamdan decision to accept that the U.S. is in an armed conflict – and therefore that the laws of war are appropriate to apply – but that the armed conflict is not of an international character. If the Supreme Court had thought that we were in a state of armed conflict with al Qaida, it is hard to see how the Court could have applied the Geneva Conventions or Common Article 3 at all. Marko further suggests that if the Geneva Conventions don’t apply to an armed conflict, it cannot be considered one under international law. I agree with Marty Lederman’s on point critique of this argument.

Marko also argued that “the vast majority of legal scholars” believe that a state cannot be in an armed conflict with a non-state actor. While I recognize there is some disagreement among international lawyers on this point, there are certainly numerous lawyers and academics who believe that the better legal position is that a state of armed conflict may exist between a state and a non-state actor. As my previous entry describes, over a century of state practice supports the conclusion that a state may respond with military force in self defense to attacks by a non-state actor from outside the state’s territory, at least where the harboring state is unwilling or unable to take action to quell the attacks, and law of war treaties that govern the treatment of detainees in armed conflict, including Additional Protocol 1 of the Geneva Conventions, contemplate conflicts between state and non-state actors across national borders. I have already cited Thomas Franck’s article “Terrorism and the Right of Self-Defense, available here. I would also refer readers to Roy Schondorf’s excellent recent article analyzing the legal regime applicable to conflicts between states and non-state actors: “Extra-State Armed Conflicts: Is There A Need for A New Legal Regime?” available here.

But I take Marko’s larger point to be an expression of frustration with what he considers to be the inadequate protections provided enemy combatants by Common Article 3. But to be clear, this is a dispute on policy, not law. As I will explain in more depth tomorrow, there are good policy reasons why the United States is not treating the al Qaida detainees as POWs even though they are not legally entitled to that status. But it’s important to identify this as a policy, not legal, disagreement.

Katherine’s questions seem to go to the concern I mentioned in yesterday’s post, that to say that we are in an armed conflict with al Qaida is to give the United States a blank check to act as it pleases in combating the threat. To pick up on some of her particular points, however, one finds that in fact in war there are specific legal protections to address the concerns she raises. First, she suggests that because we are in an armed conflict the Convention Against Torture does not apply. While the law of armed conflict is the lex specialis governing the detainee operations in our conflict with al Qaida, torture is clearly and categorically prohibited under the law of armed conflict, as well as under the CAT. Obligations to prevent cruel, inhuman, or degrading treatment are similarly found in both bodies of law.

Second, she suggests that detainees in this war get inadequate review before being detained. Admittedly, identifying members of the Taliban and al Qaida is difficult, because—among other things—unlike in a traditional war, the Taliban and al Qaida do not wear uniforms and insignia. Nevertheless, our forces worked hard to detain only those individuals who were 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. To ensure that we are holding the right people, every detainee in Guantanamo has his case reviewed by a formal Combatant Status Review Tribunal, which determines whether a detainee is properly classified as an enemy combatant. The detainee has the assistance of a military officer, may present evidence, and may appeal the determination of the CSRT to our federal courts. Nearly 40 detainees have been released as a result of this process. It is simply not correct to say that detainees do not have meaningful review of their detention.

Finally, on Kashi’s comments about my discussion of the Caroline case—that case involved private persons on the American side of the US-Canadian border supporting insurrectionist efforts in Canada, then retreating back to sanctuaries on the American side of the border in upstate New York, where they were attacked by the British. The case involved two issues relevant here: first, whether acts by private actors (as opposed to acts by state militaries) could trigger a right of self-defense where the government of the host state was unable or unwilling to take action; and, second, whether the threat posed by those private actors satisfied the conditions of necessity, proportionality and immediacy so that the British action would be justified. But there was no question that the acts of private actors could trigger the right of self-defense where the host government was unable or unwilling to deal with the situation. Secretary Webster may not have accepted that the facts were right to legally justify the use of force in the Caroline case, but the British and Americans both accepted the underlying principle.

With respect to immediacy, or what is usually referred to as imminence, the longstanding US view has been that a state need not wait until it is actually attacked before using force in self-defense, and that view has been more strongly embraced than ever in recent years, including for example by the UN Secretary-General in his In Larger Freedom report in 2005. The US continues to accept the importance of the distinction between imminent and non-imminent threats, but—in the face of the threats now posed by terrorism and proliferation of weapons of mass destruction—the principles of self-defense must be understood and applied in the security environment in which the US and other states now find themselves. But it is also important to note that, insofar as the conflict with al-Qaida is concerned, imminence is not a “live” issue, as the United States has been subject to actual—as opposed to anticipated—attack.

I look forward to continuing this discussion over the rest of the week.

10 Responses

  1. Thank you very much for responding. Just to be clear, I utterly disagree with the contention that the Convention Against Torture does not apply to the war on terror. (I am especially concerned with Article 3′s prohibition on transferring people to countries where they are more likely than not to be tortured, which has been violated repeatedly with the practice of ‘rendition’. I assume you’ll go through the rigamarole about diplomatic assurances later in the week, so I’ll save comments until then.)

    I could go on forever on the inadequacies of the CSRTs and “battlefield determinations” in Afghanistan, but rather than do that I thought I’d quote another source:

    While the JAGs’ questions about the treatment of detainees went largely unheeded, he said, the C.I.A. was simultaneously raising similar concerns. In the summer of 2002, the agency had sent an Arabic-speaking analyst to Guantánamo to find out why more intelligence wasn’t being collected, and, after interviewing several dozen prisoners, he had come back with bad news: more than half the detainees, he believed, didn’t belong there. He wrote a devastating classified report, which reached General John Gordon, the deputy national-security adviser for combatting terrorism. In a series of meetings at the White House, Gordon, Bellinger, and other officials warned Addington and Gonzales that potentially innocent people had been locked up in Guantánamo and would be indefinitely. “This is a violation of basic notions of American fairness,” Gordon and Bellinger argued. “Isn’t that what we’re about as a country?” Addington’s response, sources familiar with the meetings said, was “These are ‘enemy combatants.’ Please use that term. They’ve all been through a screening process. We don’t have anything to talk about.”

    A former Administration official said of Addington’s response, “It seemed illogical. How could you deny the possibility that one or more people were locked up who shouldn’t be? There were old people, sick people—why do we want to keep them?” At the meeting, Gordon and Bellinger argued, “The American public understands that wars are confusing and exceptional things happen. But the American public will expect some due process.”

    I realize that you can’t comment on that report and I have no idea if you were a source for it. If it is accurate (and Jane Mayer’s reporting always seems to be), thank you.

    As for the CSRTs, read this and tell me that they are meaningful reviews. Between horror stories like that, and the sheer impossibility of disproving evidence you cannot see without the help of counsel, I don’t know how the 40 who were cleared managed it.

  2. Mr. Bellinger,

    What is the Administration’s position on the question of the proportionality as a matter of international law of the United States asserted response in self-defense over the past five plus years to the attack of 9/11 and other attacks attributed to Al Qaeda? Was the war in Iraq a proportional response and why? Were the secret prisons a proportional response and why? Were the extraordinary renditions to nations known by State to torture a proportional response and why? What are the legal limits on the United States or any states’ reaction to an attack by a non-state actor? Does anything go? Can we round up 100 civilians to 1 as the Germans did in reprisals in Northern Italy in response to the death of a German soldier by partisans during World War II as was alleged in the famous Priebke case in Italy? Or similar circumstances in towns in France? What is State’s legal advice?



  3. You indicate above that the United States is not obligated to try captured personnel for violations of the law of war, but that we have set up military commissions in part because “our criminal courts simply do not have extraterritorial jurisdiction over many of these individuals or many of their activities.” If these individuals did in fact violate the law of war, which is the predicate for a legitimate exercise of jurisdiction by a military commission of the type established by the President, then doesn’t the War Crimes Act establish the requisite “extraterritorial” jurisdiction for trial in Federal Court? I recognize that there may be other pragmatic arguments in favor of trial by military commission, but the jurisdictional predicate for use of the War Crimes Act or trial by military commission seems identical to me.

  4. Like Katherine, I am not convinced by Mr. Bellinger’s claim that CAT does not apply to armed conflict — a position, as I noted in an earlier critical post, that is fundamentally at odds with the text, object, and history of CAT and was specifically rejected (following Mr. Bellinger’s presentation to it) by the Committee Against Torture. If he could elaborate on his lex specialis argument, I would most appreciate it.

  5. “if an individual can credibly say, “I want to stop fighting, I want to just go back and join my community,” and in fact the community will credibly commit, “We will take responsibility for this person, and make sure that he doesn’t go back to fighting,” then we will release people”

    The problem with this is that people who have the misfortune of being born in the wrong country, and the misfortune of being detained by the U.S. by mistake, are pretty well screwed. Continued detention in Guantanamo seems to depend more on where you’re from than on any sane review of what threat you pose. There are cases–I linked to one above–where a person is still sitting in Guantanamo despite compelling evidence of their innocence because they are from a middle eastern country instead of a US ally in Western Europe:

    Abdul Rahim Ginco, of Syria (this is the link above)–captured in a Taliban prison where he had been detained since early 2000; tortured by Mohamed Atef and Sayf al Adel until he confessed to spying for the CIA and Mossad–still in Guantanamo.

    Arkan Ghafil al Karim of Iraq, captured with Ginco in 2000, also tortured, captured in same Taliban prison–still in Guantanamo. Though I suppose Iraq could be worse by now.

    The Taliban Minister who announced al Karim’s and Ginco’s arrest in 2000 was also in GTMO for a while, but he was released some time ago. It’s not what you did, it’s who you know.

    The 12 Uighurs who seem to be found to be enemy combatants based on the exact same evidence that led to 5 others Uighurs being exonerated–no one wants them except China, which wants to torture them. It was hard enough getting Albania to take the Uighurs we exonerated; these guys are truly screwed.

    Adel Hassan Hamad, Sudanese relief worker, whose attorneys have located multiple witnesses saying he was not an extremist let alone violent–enemy combatant, still in Guantanamo.

    Faiz Ullah, Afghan, accused of being a Taliban supporter even though he comes from an ethnic group the Taliban repeatedly massacred &credibly claims that they killed family members of his and burned his village–enemy combatant. Still at GTMO as far as I know (it’s hard to keep track since the Pentagon doesn’t disclose the name of the Afghans it releases.)

    Taliban conscripts who were kidnapped at gunpoint and forced to work as assistant cooks–enemy combatants. Some were released only a few months ago; some are probably still there (again, hard to track the Afghan detainees).

    6 Algerian citizens, residing in Bosnia, taken to Guantanamo moments after being acquitted by the Bosnian Supreme Court–in their case it sounds like the fact that they were acquitted is helping to keep them in prison. Since there’s a court order for their release in Bosnia, the U.S. is only willing to send them to Algeria.

    A comparison between the English citizens and the English residents is also instructive. El Banna and al Rawi look much more innocent than some of the British citizens who were released years ago.

    This is not even an exhaustive list of the cases I know about– and how many more don’t I know about?

    The administration seems to have set up a system where they completely stack the deck in the CSRTs so that as many people as possible are found to be “enemy combatants”, and then leave it to the ARBs to make the actual determination of whether they will still be held–I’ve read one case where the CSRT found someone an enemy combatant, but (this was underlined) recommended that an ARB be called as soon as possible so that he could be released. But if you’re from the wrong country, then your ARB is not plain not going to recommend release, and once you’ve been branded an enemy combatant you’re just going to sit there. And sit there, and sit there, and sit there, and sit there.

  6. Just a few clarifications:

    You quote me as saying that a “vast majority of legal scholars” believe that a state cannot be in an armed conflict with a non-state actor. What I actually said was that a state cannot be in an INTERNATIONAL armed conflict with a non-state actor, and that the only conflicts in which non-state actors can be parties are internal ones.

    There is indeed a vast majority on this issue. Not one government, besides that of the US, stated that it was ever involved in a international armed conflict with al Qaeda, not even the UK. The ICRC says explicitly that the “war on terror” is legally not a war:

    There is no more logic to automatic application of the laws of armed conflict to the “war on terror” than there is to the “war on drugs,” “war on poverty” or “war on cancer”. Thus, blanket criticism of the law of armed conflict for its failure to cover terrorism, per se, is akin to assailing the specialized law of corporations for its failure to address all business disputes.

    So there is indeed a vast majority – it was only your government which advocated this position, and its arguments were rejected by the Supreme Court in Hamdan.

    And, again, the Caroline case is not at all a good example in favor of your position. There was indeed an armed attack by a non-state actor during incident, but your forget that even ‘armed attack’ was not a legal concept at the material time – it was introduced by Article 51 of the UN Charter. What counted at the time of the Caroline was necessity, instant, overwhelming for engaging in self-defense. There was no ‘war’ legally speaking in that situation.

    What both your position and the Court’s opinion in Hamdan lack is a firm grounding in history and precedent. Before 1949, international law did not even regulate all conflicts between two sovereign states. The law of war only applied to ‘war’, which was a subjective concept, and a legal status. It affected numerous other issues, such as operation of treaties, diplomatic relations and so on. (see Christopher Greenwood, The Concept of War in Modern International Law, 36 ICLQ 283, 284 (1987)). The law of war did not apply even when two states were actually engaged in war de facto, but did not express the animus belligerendi, let alone to a conflict between a state and a non-state actor. During the Sino-Japanese war, or during the Caroline incident, or during the Irish rebellion against the British, the parties involved had no constraints put on them by the law of war, none, even though fighting was going on in reality.

    Only after 1949 do we have a paradigm shift from a subjective notion of ‘war’, to objective notions of international and non-international armed conflict, precisely because the subjective notion left so many gaps. Only then does the law of war apply to non-state actors, and even then only in internal conflicts. And, finally, there never were any armed conflicts which fell out of the material scope of the Geneva Conventions, even though there were instances in which the Conventions themselves could not apply, because not all parties to the conflict were parties to the Conventions.

    As a policy matter, I also fail to see the obvious, it would seem, as to why the ‘war on terror’ is even deserving of having the law of war applied to it, even if we could stretch the legal interpretations available to the point of bursting in order to allow this. The Cold War, for instance, was a war in a very real sense, actually the most momentous conflict in human history, with the very survival of civilization and humans as a species at stake. Yet, no lawyer that I know of argued that the Cold War was a war legally speaking, and that every Soviet spy captured was an ‘unlawful combatant’ in this war and so on. When the Cold War actually flared, an an armed conflict ensued, there was no problem in applying IHL to it. So it is with the war on terror – there is an armed conflict in Iraq, and in Aghanistan, and no armed conflict globally.

    I thank you also for providing a clear position of the administration regarding the Hamdan decision. I can only say that I wait with trepidation your government’s new submissions to the US courts, which will now argue that CA3 does not prohibit indefinite detention, and which will now (for a change) actually be right.

  7. I posted a comment to John Bellinger’s original post on the Conflict with Al Qaeda and to the comments by Marko and Marty Lederman almost at the same time as Mr Bellinger’s new post went up went. I hope that readers will permit me to repeat my comments which are below. I would very much welcome reactions especially to the interpretation offered by Mr Bellinger, Marko and Marty to the Hamdan case.


    Both Marko Milanovic and Marty Lederman suggest that the Supreme Court in Hamdan held (i) that the US is involved in a conflict with Al Qaeda which is distinct from that with the Taliban in Afghanistan and (ii) this conflict with Al Qaeda is a non-international armed conflict. However, neither of these issues were actually decided by Hamdan. The US govt did make these arguements, the Court held “We need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories [to the Geneva Conventions].” Thus the Courts application of Common Art. 3 was only on the basis that this provision would at least apply and not on the basis that it was necessarily the applicable provision. Thus, whether or not there is a distinct conflict with Al-Qaeda and what the nature of that conflict might be are still open for decision, even with the US.

    Although Marko might be right that it is difficult to find historical examples of armed conflicts between a State and a non-State group which take place outside of the territory of that State, it is difficult to understand why this would be impossible conceptually. Certainly, protracted armed violence (to use the terminology used by the ICTY in Tadic) might take place between a State and a non-State group that is outside that State with most of the fighting occuring outside that State. Of course, for the State to be permitted to use force outside its territory it would have to comply with the jus ad bellum. In other words it would need a basis in the law of self-defence. But as long as that is present why is this not an armed conflict with the non-State group which is independent of the armed conflict with the State on whose territory the violence occurs. To take a concrete example, would it be wrong to assert that there was a conflict between Israel and Hezbollah in the summer of 2006 which was independent of any involvement of Lebanon? I think not. If members of Hezbollah’s military wing were found in Israel in 2006 would Israel have been permitted to detain them (as IHL would permit) or would it have been obliged to release them if those particular people had commited no crime. To argue that there was no conflict with Hezbollah would be to say that Israel was obliged to release these fighters if they had committed no crime. Why would any State accept such a view?

    Although I accept that, in principle, there could be an armed conflict between the US and Al Qaeda, I am not sure that the conflict in Afghanistan was separate from that with the Taliban. It could be argued that the Al Qaeda was fighting alongside and with the Taliban in the context of the Afghanistan conflict and was therefore a militia belonging to a party to the Afghanistan conflict (in the words of Art. 4(A) 2 of GCIII). If this is factually correct then Al Qaeda members captured in Afghanistan were captured in an international armed conflict to which the entirety of the Geneva Conventions apply.

    If it is accepted that the US and Al Qaeda are involved in an armed conflict separate from that with the Taliban it need not be accepted that this is a non-international armed conflict. Such a conflict might still be international at least to the extent that it involves the use of force by the US outside the US. This is because any use of force by the US outside the US would raise jus ad bellum issues and it would be incongrous to argue that the jus ad bellum determines whether force can be used but the conflict is non-international. If one takes the Israel Hezbollah analogy once again, I wonder whether anyone would argue that the conflict between Israel and Hezbollah was non-international.

    Finally, I wonder whether it is possible to argue that a conflict between a State (the US or say Israel) and a non-State group (Al Qaeda or Hezbollah) which is fought primarily outside the territory of the State is governed by customary principles of IHL based on the GCs. In other words, even if it is argued that such a conflict is not textually governed by the GCs because one side is not a State, the conflict is still governed by the customary principles that apply to international armed conflicts.

  8. In response to Dapo Akande: For what it’s worth, I think it’s certainly possible that, insofar as we encounter Al Qaeda forces in Afghanistan, Article 2 rather than Article 3 would apply as to those persons. (I don’t know if that’s so — but others much more learned than I in these questions have made such arguments and they seem at least plausible to me.)

    But be careful what you wish for. Because, as I understand it, such combatants almost certainly would not qualify for POW or GCIV civilian protection, CA3 might provide greater treaty-based protection than if the U.S. were instead to conclude that Article 2 applies. (This puts to the side, of course, any protection under the customary laws of war.)

  9. Dapo,

    I think you may be right that the Supreme Court in Hamdan actually avoided the issue of classifying the conflict with al Qaeda. It certainly looks that way from the language you cite, and it is a plausible reading of the judgment.

    However, there are at least two more plausible readings of the judgment, and the one I find most textually plausible, even if legally wrong, is that the Court has ruled that the war with al Qaeda is a non-international armed conflict, since it applied CA 3 as treaty law, and CA 3 as treaty law is applicable only in non-international armed conflict. The greatest problem with the judgment is actually that it is totally unclear.

    As for your example of Hezbollah and Israel, I don’t think, de lege ferenda, that it is conceptually completely impossible for a state to be in an armed conflict with a non-state actor. Far from it. My problem is that as the law stands today, it is impossible for that to be an international armed conflict as these are strictly interstate ones, while non-international armed conflicts have always been regarded as synonymous for internal.

    The recent Hezbollah episode can certainly be regarded as an anomalous type of non-international armed conflict, as Hezbollah controled a defined territory, conducted military operations, and engaged in protracted armed violence (conditions that al Qaeda does not satisfy, btw). It can also, however, be considered as an international armed conflict, as Israel targeted many assets of the state of Lebanon, and as Hezbollah itself can be considered to be an agency or organ of Lebanon.

    Finally, I stress again that the jus ad bellum is irrelevant here. Armed conflict does not exist whenever there is an armed attack, and vice versa. Whether a conflict is international, non-international or is not at all an armed conflict in the sense of IHL does not in any way depend on the legality of a particular use of force. Also, whether a conflict is international or not does not depend on whether a particular use of force crosses an international border, but on the legal nature of the parties to the conflict – are they states or not.

  10. ARB practice diverges pretty significantly from ARB theory explained above. Rather than a rehash of allegations that were presented to a CSRT, if ‘dangerousness’ was the real goal, the ARB would be focused on how the prisoner acts now, and is likely to act in the future. Examination of any ARB charge sheet shows that the point is reinforcing and/or reviewing the conclusions of the CSRT, not actually assessing the prisoner’s likely conduct in the future.

    I’m not saying that the past is irrelevant — just that the current situation is so different from that when most prisoners [other than innocent bystanders] became involved in the conflict, that it cannot in any way be considered dispositive. That is, a Saudi who might have been considered ‘dangerous’ because of his willingness to engage on the government side in the Afghan civil war in the spring or summer of 2001 — a position not inconsistent with the position of his government — is not necessarily to be considered dangerous today. Saudis are not (sfaik) traveling to Waziristan to join up and fight, certainly not in the numbers and with the same Saudi support as before.

    In addition to the changed context on the ground, you have changes in the attitudes of prisoners. Jihad, at the low level end, is a younger man’s game. Many people grow out of it. Unfortunately, keeping the prisoners in a condition of uncertainty and despair serves better to retard this process* than to advance it. Coupled with DOD’s unwillingness (and inexperience) to engage in rehabilitation,** the ARB as a kind of parole hearing — if they even tried to go beyond the matter already presented to the CSRT — is something of a cruel joke.

    It’s true that a real ARB — a process to determine whether an individual was not merely wrongly held, but can be released at a fairly low level of risk (including released into foreign custody) — would be a great deal of work. It is, however, necessary to do this thing right. DOD is not doing so.

    * It’s unfair to judge prisoners solely or predominantly by their conduct within prison society: as Clavell’s King Rat illustrates very well, humans adapt to special situations, like incarceration of uncertain duration, in strange ways, that do not necessarily reflect how they would behave in a normal environment.

    ** For example, DOD refuses to allow prisoners to learn English, or to take correspondence courses. It severely restricts contact with families, which would surely be a great help. This process can perhaps be undertaken in foreign custody, where families are typically allowed to visit. This is all the more reason to repatriate, forthwith, any prisoner who does not object to repatriation.

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