Guest Post: The Courts’ Misunderstanding of IHL is Deeper than You Think – A Response to Kevin Jon Heller

[Eric C. Sigmund is a legal advisor for the international humanitarian law program at the American Red Cross.  He is a 2012 graduate of Syracuse University College of Law and the Maxwell School of Citizenship and Public Affairs at Syracuse University.  All opinions expressed in this article are solely those of the author and should not be attributed to the American Red Cross.]

Recently, Kevin Jon Heller published a short piece on Opinion Juris entitled Why Can’t US Courts Understand IHL?  The piece, which addresses Al Warafi v. Obama, suggests that the United States District Court for the District of Columbia, as well as the D.C. Circuit Court of Appeals misunderstood and misapplied international humanitarian law as it denied Al Warafi’s habeas petition.  Heller, who seems both exasperated by the misapplication of the law but also sobered by the inevitability of this fact, posits that the Courts ignore clear language governing whether Al Warafi’s was required to carry or wear official identification demonstrating that he was protected as “medical personnel exclusively engaged in the search for, or the collection, or treatment of the wounded or sick, or in the prevention of disease…” as provided in Article 24 of the First Geneva Convention of 1949 (GC I).  While noteworthy, it is Michael Schmitt’s short comment to the post which raises a bigger question about the misapplication of the law and suggests that the Courts weren’t looking in the right place to begin with.

A more comprehensive description of the facts of the case can be found elsewhere but I’ll recap a few to provide context.  Mukhtar Yahia Naji Al Warafi was detained shortly after the invasion of Afghanistan by U.S. and Coalition forces in October 2001.  The U.S. government claimed that Al Warafi was a member of the Taliban who served on the frontlines against the Northern Alliance.  Al Warafi denied this claim, contending that he only provided medical assistance to wounded fighters.  Citing Article 24 and other supporting articles of GC I, petitioner Al Warafi argued that his prolonged detention was unlawful since he was exclusively engaged in the provision of medical care at the time of the invasion and therefore should have been repatriated upon capture.

At first glance, Al Warafi’s reliance on Article 24 seems misplaced as this provision is only applicable in situations of international armed conflict.  Common Article 2, which governs the application of the Geneva Conventions of 1949, states that the treaties are applicable to conflicts between High Contracting Parties or to situations of occupation.  While Afghanistan was a High Contracting Party to the Conventions at the time of the US invasion, the Taliban had not been recognized as the legitimate governing authority of the country.  As a result, the coalition invasion of Afghanistan did not amount to an international armed conflict since force was being directed against a non-state actor even though al-Qaeda and the Taliban were located in a foreign territory and the Taliban exerted control over much of the country.  Accordingly, the status and protections afforded to members of a nation’s armed forces during international armed conflict were not available to members of the Taliban regime.

Assuming for the sake of argument that the legitimacy of the Taliban’s rule was in question, Article 13 of GC I may come into play.  Specifically, Article 13(3) establishes protective status for “[m]embers of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.” This article mirrors the language in Article 4 of the Third Geneva Convention of 1949 (GC III) which is an authoritative list of persons who receive combatant immunity and/or prisoner of war status once captured.

While an analysis of this rule would not be used as a basis to classify the conflict, the Commentary to this provision reveals that the framers of the Conventions declined to extend combatant status to groups like the Taliban.  The Conference of Government Experts sought to limit the scope of this clause to prevent “any abusive interpretation which might have led to the formation of armed bands such as the “Great Companies””. The Commentary further notes that the “provision must be interpreted, in the first place, in the light of the actual case which motivated its drafting — that of the forces of General de Gaulle which were under the authority of the French National Liberation Committee”.  It concludes that only those forces which resemble the armed forces of a state Party to the conflict, which are recognized by third party states, and which assume obligations of the government subject to the Conventions may gain belligerent rights and protections afforded to members of the national armed forces.  None of these conditions were met by the Taliban.

The appeal of Al Warafi’s argument is easy to see.  Those who fall into one of the categories enumerated in Article 24 are provided a unique status of “retained personnel”.  Upon capture, such persons should be repatriated unless they are needed to provide medical care to prisoners of war and only for such time as their services are necessary.   With regards to those falling within the purview of Article 24 “repatriation is the rule; retention the exception [p.53]”.

Unfortunately for Al Warafi, the Commentary to Article 24, as well as Army Regulation 190-8 §3-15, specifies that only medical personnel of the armed forces of a nation are entitled to this protection.  Therefore, while the lack of proper identification is not dispositive as to whether Al Warafi was exclusively engaged in the provision of medical aid, the issue becomes moot as the Taliban lacked the proper authority to issue the credentials necessary for Al Warafi to obtain protection under Article 24. 

Moreover, the Supreme Court had previously decided in Hamdan v. Rumsfeld that the United States was engaged in a non-international armed conflict with al-Qaeda and the Taliban, governed primarily by common Article 3 of the Geneva Conventions.  Common Article 3 itself includes no mention of “medical personnel exclusively engaged” in providing aid.  Moreover, since combatant status does not exist in non-international armed conflicts, belligerents who are not members of the armed forces of a state party to the conflict engage in hostilities unlawfully.  The law draws a “clear distinction between direct participation in hostilities and participation in the war effort [p.140-41]” with the latter participation not violative of IHL.  The 2009 Military Commissions Act §948a(7)(A) establishes that those who “[have] engaged in hostilities against the United States or its coalition partners” are unprivileged enemy belligerents who may be directly targeted during military operations, or detained and prosecuted for the criminal violations they commit. Whether Al Warafi’s detention was lawful thus rests primarily on whether he directly participated in hostilities.

Two competing interpretations of the concept of direct participation in hostilities – one espoused by the United States and the other by the International Committee of the Red Cross (ICRC) – have dominated legal discussions on the topic.   In its Interpretative Guidance on the Notion of Direct Participation in Hostilities, the ICRC contests that a civilian directly participates in hostilities when their actions: 1) meet a threshold of harm; 2) directly cause the resulting harm; and 3) are done with the intent to cause that harm. While there are many nuances to this rule, it would be unlikely for Al Warafi to have been found to be engaged in hostilities under this formulation.

The District Court focused extensively on the fact that Al Warafi spent two weeks near the Khoja Khar frontline where he was believed to have received weapons training.  The Court uses this fact, in part, to find that Al Warafi was not “exclusively engaged” in medical work to reject his Article 24 argument.  This finding would likely have been different under a direct participation analysis as not being exclusively engaged in medical duties would be insufficient to prove Al Warafi’s direct participation, nor would receiving weapons training alone satisfy the factors listed above.

The result may also be the same under United States’ approach.  Rejecting the ICRC’s test, the U.S. has embraced a more flexible case-by-case approach [p.142-43] focused on the hostile actions and hostile intent of the person in question. Notwithstanding his presence in Taliban controlled territory or receiving weapons training, the Court concedes that “petitioner likely did not engage in combat in Afghanistan [p.15]”.  Moreover, the Court and respondents also concede that Al Warafi had served the overwhelming majority of his time in Afghanistan providing medical care in various facilities throughout the country.   While Al Warafi’s actions may have contributed to the general war effort, they would not be sufficient to constitute direct participation in hostilities.

Within the context of non-international armed conflict, it seems plausible that Al Warafi could refute his detention under international humanitarian law.  Although the Court had correctly ruled that Article 24 did not apply, it did so on misguided grounds.   In Al Warafi’s case, Article 24 was inapplicable because the conflict was not of a nature to trigger its application, nor was the petitioner a proper subject of this provision.  Although Justice Brown identifies common Article 3 at the appropriate framework for considering the legality of Al Warafi’s detention in his concurring opinion for the Court of Appeals, this late game articulation of the proper scope of laws did little to rectify the Courts’ previous errors.  Heller is right to critique the Courts’ improper reading of Article 24, but this turns out to be paltry compared to the systemic misapplication of the IHL by the Courts in this case.