Summer Must-Reads for those Keeping Up on Detainee Affairs

by Deborah Pearlstein

Nothing like the end of the semester as a cure for one’s reading pile. In addition to Marty Lederman’s post on the bin Laden targeting below (great to have him back in the blogosphere!), I’d recommend the following reports you might have missed.

First, back in April, around the time the Times published its account based on Wikileaks documents of the detainees who’ve passed through Guantanamo Bay, Princeton undergraduate and honors student Sam Dorison handed in his senior thesis. Why mention a student thesis here? It’s the best (and in key respects only) study that uses statistical methods to analyze who has been released from Gitmo since 2002 and why. He correlates a range of individual characteristics with length of detention and concludes, among other things, that a detainee’s citizenship is the most significant factor in determining his length of detention at Guantánamo Bay. For those who’ve been following this, that conclusion may well seem consistent with your general sense. But note the significance: (1) release from Gitmo is at best only very slightly correlated with the level of threat the government thought the detainee presents, and (2) citizenship matters not because we’ve necessarily released detainees to our allies but not our enemies, or to human rights-respecting countries but not human rights violators, but because it reflects the detainee’s home country’s ability to monitor him after release; a lower capacity to monitor translates to longer detention duration. Sam’s data are drawn principally from 516 CSRT reports and also take account (with a critical eye) of all the available studies already out there (some of which are of course better than others). For those keeping track at home, well worth a look.

Second is a new report by Human Rights First on U.S. detention operations in Afghanistan – the most thorough and up-to-date assessment on the topic I’ve seen by a long shot. Reflecting on the fact that the number of detainees in Afghanistan has nearly tripled since President Obama took office (now up to 1700, no doubt a reflection of the increased pace of U.S. operations in country), HRF writes up its observations based on the remarkable access they were granted by the U.S. military to observe a handful of detainee review board hearings, as well as an Afghan trial supported by the United States, late 2010-early 2011. HRF also interviewed former detainees, Afghan defense lawyers, prison officials, and U.S. military and State Department personnel. The upshot: while the Obama administration has made some noteworthy progress, there’s more work to be done. Bagram prisoners now have the right to appear before a board of military officers to dispute their detention as “enemy belligerents” fighting U.S. forces, they lack the legal representation the Gitmo detainees have enjoyed, and still lack the right to see the evidence against them. And while the Afghans have begun conducting some actual trials under U.S. auspices, those proceedings have a long way to go before they come close to meeting international standards of fair trial. Make of all this what you will – I actually take some comfort from the reality that HRF had the kind of access they did, and from at least the general trajectory of detention policy there – but I’m very glad HRF continues to hold the USG’s feet to the fire in Afghanistan. For now, one last suggestion that readers may be interested to note HRF’s application of legal framework here, which is to me a not entirely clear blend of IHL and human rights law. HRF (in my view correctly) describes the current conflict in Afghanistan as a NIAC, but then moves directly (past Common Article 3’s “regularly constituted courts,” APII, etc.) to int’l human rights law (ICCPR) for the relevant procedural standards. Especially given the United States’ long held (if, in my view, unfortunate) position that ICCPR doesn’t apply extraterritorially (which the report acknowledges), this seems a bit of a tough legal case to make. Beyond the trial situation (to which it seems CA3 would surely apply), as long as we’re choosing between legal regimes the United States officially rejects, why not pick APII, or API by analogy, as the more useful standard? Truly asking here.

Finally (for now, I’m still catching up), former State Department Legal Adviser John Bellinger and his former State Department colleague (and soon-to-be Vanderbilt Law professor) Vijay Padmanabhan have a new piece out in AJIL lamenting the ongoing gaps they describe in IHL as applied to non-international armed conflicts. I confess I’ve only skimmed it so far, but particularly in light of my questions about the law HRF is applying in evaluating U.S. operations in Afghanistan, I’m going to give this a careful look. For the time being, let me just quote from the article’s ambitious statement of mission.

[O]ur hope is that by identifying areas of agreement among states detaining nonstate fighters, and by suggesting additional considerations that should receive further thought, the international community will be better positioned to develop new law for guiding and constraining state action in future conflicts. While we recognize that a new international instrument, even if advisable, is unlikely to be achieved in the near future, an agreement on common principles by like-minded states would further the process of legal development—which is urgently needed in this area.

3 Responses

  1. Response…
    Be suspicious of former members of the Bush Administration claiming that there are gaps in the reach of law!

  2. Deborah,

    Grateful for your note on our Afghanistan report. You raise questions about our approach that we will certainly have to answer elsewhere, so I’d like to know your reaction to this:Common Article 3 is about sentences and execution, in other words, criminal trial, not administrative detention, so it is not really relevant to the Detainee Review Board process. It is relevant to the Afghan trials of armed conflict detainees, but that’s more properly addressed to the Afghan government, and our report focuses on U.S. detention policies and practices.
    Given that the lex specialis, IHL, lacks detail on due process requirements for non-criminal detention in Non-international armed conflict (like in Afghanistan), the lex generalis, HR law applies.The US denial of extraterritorial application of ICCPR is not a reason to shy away from asserting human rights law norms. The vast majority of international jurisprudence on the subject recognizes the complementary application of HR law and IHL in armed conflict situations, including extraterritorially where the State exercises effective control. Even if the ICCPR does not apply de jure, there are minimum standards of due process applicable as a matter of customary international human rights and humanitarian aw, and the broadly accepted ICCPR is as good a place as any to look for what those minimums might be.

    Gabor Rona
    International Legal Director

  3. Gabor:  I think this demonstrates why the formalist lex specialis model can’t be especially helpful here.  Roughly speaking (and this is obviously a simplification), at time A, the treaties and customary law of IACs develop to impose certain detailed limits on detention in armed conflict, mostly in GC III and GC IV.  The relevant states do not impose similar constraints on NIACs, because they wish to have more, not less, flexibility in such conflicts, including in their internal civil wars.  Therefore, the only constraints that remain are the minimalist rules of article 3 and whatever custom has developed for NIACs.

    At time B, the States agree to the ICCPR, which (arguably) imposes greater constraints on detention than does the LOAC for NIACs.  The U.S. claims that the ICCPR does not apply extraterritorially; but at least some of the principles of the ICCPR (arguably) develop into customary human rights law.

    Putting aside all of the abstract debates about the manner in which IHL and IHRL are complementary or exclusive, how they can and should be reconciled, etc., is it really plausible to believe that any states, let alone a consensus, have agreed to be subject to *greater* constraints in NIACs than in IACs when it comes to detention?  Isn’t APII proof that that’s not the case?  (Would that treaty be largely superfluous if your IHRL assumptions were correct?)

    I’m very dubious that any such argument would have much traction.  To my mind, then, the really important task is to do what Lieber attempted — namely, to identify which IAC rules have become (or ought to become) customary IHL in NIACs.  Or, better yet, to do what the executive and judicial branches have done under the AUMF, namely, to construe domestic statutory authority for the use of force in this NIAC not only to be limited by the modest constraints of NIAC IHL (e.g., CA3), but also to be informed by the detention rules and historic practices of IACs, such that (very roughy speaking) the executive is not authorized to do in this NIAC something that would in effect be prohibited or unprecedented in an analogous IAC (if there is such a thing).  This sort of statutory construction, and state practice, will, in turn, lead (as the Lieber Code was designed to do) to a development of customary IHL for NIACs that in many respects parallels the rules of the road for IACs.

    That strikes me as a more plausible and fruitful endeavor than trying to convince the states of the world that they’re already bound by customary IHRL, similar to the ICCPR, in NIACs.

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