IHL and International Human Rights Law in Non-International Armed Conflict

by Deborah Pearlstein

In a post last week, I recommended Human Rights First’s new report on U.S. detention and trial operations in Afghanistan for its insights into the evolving situation there. I also raised a question about the legal framework the report used to analyze the sufficiency of detention procedures.

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.

Responses to that question produced an interesting exchange on and off-line between Gabor Rona and Marty Lederman. With the relevant permission for the off-line part, I excerpt their exchange here.

Responding to my question, Gabor Rona (HRF’s international legal director) wrote:

“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.”

Marty Lederman (recently of the U.S. Justice Department Office of Legal Counsel) replied:

“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…. 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 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 … to a development of customary IHL for NIACs that in many respects parallels the rules of the road for IACs.”

Gabor emailed to respond; here’s part of his reply:

“Marty, you’re absolutely right and I couldn’t disagree with you more. Let me explain…. [It is] not all that helpful to view distinctions between IAC and NIAC on the same scale (you do so when you imply that states want more, not less, flexibility to detain in NIAC than in IAC). In IAC, detention rules for combatants are founded on the reality that combatants, by virtue of their “combatant’s privilege,” may not be prosecuted for mere participation in hostilities and therefore, their detention must be founded on some procedural framework other than criminal. That’s why there needs to be a PoW detention regime, as found in GC III, and why the PoW detention regime qualitatively differs from, and is not easily comparable in degree to, detention in NIAC. Likewise, detention rules for enemy civilians in IAC, whether or not in situations of occupation, correctly presume that the party that seeks to detain is not the party whose domestic legal structure operates in the place of detention. That’s why there needs to be a civilian detention regime, as found in GC IV, and why that detention regime qualitatively differs from, and is not easily comparable in degree to, detention in NIAC. In short, the drafters of the IAC detention regimes correctly understood that domestic law can have no currency IAC, and conversely, that NIAC detention regimes are those of domestic, not international law. In other words, the reason the GCs do not regulate NIAC detention is not because states want greater flexibility in NIAC than in IAC, but rather, because respect for the prerogatives of national sovereignty compel the conclusion that international law is simply the wrong place to look for detention powers.… So if the IHL of IAC is not a useful point of departure, and since … domestic law is the key, then clearly, HRL, is an essential point of reference to establish minimum guarantees [as suggested by CA3 and the preamble to AP II mentioning the continued vitality of “human rights instruments”]…. I absolutely agree that from the US perspective, application of HR law to NIAC detention is going nowhere. But the US perspective is simply wrong, not to mention bad policy….”


7 Responses

  1. Response…
    1) there is no lex specialis exclusion of human rights law in terms of customary internaitonal law based on actual patterns of general practice and general patterns of opinio juris.  The Latinized phrase has different meanings for some writers and some dicta appears to favor one form of meaning, but it is not customary international law and there is absolutely no treaty-based exclusion of human rights law in the main human rights and law of war treaties merely because there is an international armed conflict.  For example, there is no such exclusion or limitation in the ICCPR and some of the rights and prohibitions therein are absolute even if other rights are derogable through proper application of art. 4.  There is no territorial, temporal, or armed conflict override of the “universal” duty under arts. 55(c) and 56 of the U.N. Charter, which will include customary human rights that are nonderogable and without express limitations.  see http://ssrn.com/abstract=1710744
    2) the Taliban still field military units in an international armed conflict within Afghanistan and parts of Pakistan against armed forces and direct miltary supporters from Afghanistan, the U.S., Australia, Canada, Denmark, Estonia, France, Germany, the Netherlands, Norway, the U.K., as well as NATO.  NIAC?  Of course not.

  2. I want to second Jordan (and Howard Gilbert’s) earlier posts on this NIAC for Afghanistan point.  I would be grateful if Deborah, Marty and Gabor would speak to why they think Afghanistan is an NIAC and whether they thought it was such from its inception or only after a certain point (and what was that point).  


  3. Response…
    And we all know that the Bush-era attempt to exclude application of the ICCPR outside U.S. territory was outrageous and, more importantly, in serious error.  H.R. Comm. Gen. Comm. No. 31 and so many other authoritative recognitions were and are known regarding the fact that any person in “effective control” of U.S. forces, CIA, etc. are covered.  The Obama Administration should correct the U.S. position on the ICCPR and comply with U.N. arts. 55(c) and 56 (with its art. 103 override of any nonconforming limitations that might actually exist).

  4. [I think I just submitted a comment, but it vanished without a trace.]

  5. [Trying again, with a different browser.]

    Is it not the case that:

    1. The armed conflict in Afghanistan is undoubtedly “internationalized” (to such an extent that any alleged “sovereignty” of Afghanistan, and its domestic law, as applicable to an asserted NIAC, is “sovereign” in name only).  See James G. Stewart, writing in June, 2003.

    2. Due to the facts on the ground, and the way that the 1949 Geneva Conventions are written, no one really knows (participants included), or can definitively state, absent a judicial ruling on this question, whether the conflict involving U.S. forces in Afghanistan and Pakistan is, formally under the law of armed conflict, “international” armed conflict, “non-international” armed conflict, or, to some degree and by confusing definition, both.


    3. Since norms of IAC conduct (default POW status, and Third Geneva Article 5 hearings before the stripping of that status, high among them) have been deliberately discarded by the chain of command of the U.S. Armed Forces (the overwhelmingly-superior military involved in this conflict) from almost day one of the conflict, a clear decision, by judicial ruling or otherwise, as to the precise nature of this armed conflict is, and has long been, crucial to the lawful conduct of the conflict, the humane treatment of captives accused of participating in it, and the proper application of pertinent law to participants in, and bystanders to, the conflict.  [A clear decision that appears to be nowhere in the offing, even after nine years of conflict, and a decision that American actors in this conflict have long had very strong incentives to prevent, for obvious reasons.]

    In the absence of the actual enforcement of international law, or an unlikely, honorable Congressional decision ordering the Commander-in-Chief to follow the higher, more-humane IAC road, so long as doubts about the ongoing conflict’s status persist, this debate seems unresolvable.  And, years ago now, James G. Stewart’s 2003 work clearly described and lamented, in this ‘nuclear age’-redesigned world of armed conflict, the reasons for such unresolvable arguments as those concerning the true status, under international law, of our ongoing 2001 AUMF-authorized armed conflict:

    This article revives the calls for a single law of armed conflict by illustrating the failure of the current regime to deal with conflicts that contain both international and non-international elements, namely internationalized armed conflicts.


    The proliferation of nuclear weaponry and its inhibiting impact on direct forms of aggression during the Cold War led to many less transparent internationalized armed conflicts, which although superficially internal were in fact “wars by proxy” taking place in the territory of a single State with the covert intervention of foreign governments.13


    Consequently, a strict reading of the Conventions and their Protocols would suggest that a range of very significant disparities between the two regimes [IAC & NIAC] exist. For example, common Article 3 covers only non-participants and persons who have laid down their arms, and does little to regulate combat or protect civilians against the effects of hostilities.36 Common Article 3 also fails to define elaborate rules of distinction between military and civilian targets37 and makes no mention of the principle of proportionality in target selection.38 [....]

    Most significant from a political perspective is the fact that there is no requirement in either common Article 3 or Additional Protocol II that affords combatants prisoner-of-war status in non-international armed conflicts, nor is there anything preventing parties from prosecuting enemy combatants in those circumstances for having taken up arms.43


    The more pertinent rationale for incorporating military intervention as a criterion for the internationalization of armed conflicts might be that for the purposes of the second paragraph of Article 2 common to the Geneva Conventions, such intervention qualifies as a partial occupation. That paragraph was “intended to fill the gap left by paragraph 1″102 by stipulating that the entire Conventions “shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”103 Even so, the application of the paragraph to foreign military intervention in civil conflicts poses several problems.


    Traditionally, the close of inter-State conflict requires the cessation of hostilities evidenced by armistice agreement and the subsequent establishment of peace, generally by the signing of a formal peace treaty.136 Because internationalized conflict is rarely initiated by declaration and frequently involves covert rather than direct hostilities, formal events such as armistice, conclusion of treaties and public withdrawal of forces are rare. As Detter observes, “there is no need to acknowledge the end of something which allegedly never existed.”137 Therefore, the refrain that international humanitarian law “extends beyond the cessation of hostilities until a general conclusion of peace”138 is often unhelpful in the context of internationalized armed conflicts since the latter is seldom formally achieved. Consequently, in many instances the close of internationalized military operations can only be determined by simple reference to the point at which actual hostilities cease on the ground.139


    For example, in applying the tests for internationalization to present day hostilities in Afghanistan, Cryer cites a range of factors which in his estimation render a finding that the Northern Alliance is under the overall control of the Coalition forces “not totally perverse,”143 but goes on to conclude on balance that such control does not exist, predominantly because “the Northern Alliance was acting directly contrary to the clearly expressed wishes of the Coalition when it actually took the Afghan capital Kabul, and entered the city itself.”144 The assumption is, therefore, that the group was under the overall control of the Coalition prior to its taking of Kabul but not afterwards.


    The unavoidable conclusion is that the ambiguities in determining the close of internationalized hostilities, coupled with the opposing views about the possibility of mixed armed conflicts, suggest the absence of any coherent basis for determining the temporal or territorial scope of humanitarian law in territories containing conflicts of both international and internal origin. Much of that failing again stems from the uncomfortable relationship between the standards applicable in international and non-international armed conflict.


    A particular sticking point in developing a single law of armed conflict is defining a generic definition of the term in light of the different levels of intensity that trigger international and non-international armed conflicts at present. Specifically, a single definition of armed conflict will need to ensure that States continue to enjoy an ability to deal with internal disturbances under domestic law but that international conflicts of low intensity remain subject to international humanitarian protection. One possible solution is to adapt the approach proposed by the Brazilian government’s experts in relation to the application of Additional Protocol II, which defined armed conflict as conflict between “organized armed forces or other organized armed groups under a responsible and identifiable authority, and clearly distinguished from the civilian population…”165


    This approach could also allow all combatants in armed conflicts to be entitled to prisoner-of-war status, while preserving the State’s ability to maintain law and order during internal disturbances and tensions such as riots or isolated and sporadic acts of violence. While it is essential not to be politically naïve with regard to the very real concerns that governments cite against extending prisoner-of-war status to internal conflict or according combatants in such conflicts immunity for taking up arms,172 there is very little other incentive for insurgent groups to comply with the laws of war if they are not able to claim those privileges.173


    The divergent standards applicable within the Geneva Conventions and their Additional Protocols have failed to adequately address the now prolific incidence of internationalized armed conflict.

  6. I would suggest that at the end, it maybe doesn’t matter that much to discuss the lex specialis issues, nor the type of armed conflict question. If we compare the ICCPR, the IAC and NIAC due process standards and their interpretation in customary international law, there seems to be considerable overlap. Jordan Paust rightly mentions the derogation regime of the ICCPR, which would be the only available reason why the treaty would not apply to individuals under the jurisdiction of the US. The US has not derogated from the ICCPR, which implies that the entire treaty remains applicable. But even if the US had derogated, the so called principle of consistency of article 4 has the effect to keep significant fair trial guarantees in place, quite irrespective of the type of situation and the status of the concerned individuals. (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1345809). Those standards that are common to all regimes must be provided in any event.

  7. Response…Thanks for the click-on to your article, which I will find useful with respect to a draft of mine on problems still inherent re: the Obama military commissions.
    I suspect that nonderogability is what pertains when human rights norms become customary international law.  Our Supreme Court has recognized in Hamdan that Geneva common article 3 incorporates customary human rights law by reference and that art. 14 of the ICCPR is such law and. moreover, that Geneva Protocol I art. 75 mirrors customary rights to due process as well.
    In any event, Geneva common art. 3 and Geneva Protocol I art. 75 are “nonderogable.”  Some of this is in my article in the Harv. J. that was quoted for other reasons by the Supreme Court in Hamdi =  http://ssrn.com/abstract=1487770

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