Guest Post: IHL Doesn’t Regulate NIAC Internment–A Drafting History Perspective

by Jonathan Horowitz

[Jonathan Horowitz is writing in his personal capacity. He is a Legal Officer at the Open Society Justice Initiative’s National Security and Counterterrorism Program.]

Ryan Goodman argues in a thoughtful new post at Just Security that IHL regulations pertaining to internment in international armed conflict (IAC) should apply to internment in non-international armed conflict (NIAC).

This is a hotly debated issue.

In this post, I look back on the drafting history of Additional Protocol II which, in my view, reveals that 1) IHL was not crafted to provide regulations (neither the grounds nor procedures) for NIAC internment and 2) IHL does not have a structure that permits its IAC internment regulations to apply to NIAC.

That’s not to say States can’t intern; it’s to say that when they do, the sources of internment regulations are found not in IHL but primarily in domestic law and international human rights law.

Lack of internment regulations in the IHL of NIAC is supported by the fact that Common Article 3 and Additional Protocol II, the two main sources of treaty law regulating NIAC, provide no such rules. This absence is both indisputable and in contrast to the Third and Fourth Geneva Conventions, which are replete with regulations on IAC internment. Protocol I also contains internment regulations.

The absence of internment procedures in Additional Protocol II is also in contrast to numerous penal prosecution procedures found in Article 6 of Additional Protocol II and, to a lesser degree, Common Article 3. For these reasons, it’s clear that while the drafters of Protocol II explicitly recognized that parties to a NIAC are permitted to intern, the drafters also chose not to put in place internment regulations.

But why was this the case, and what does it tell us about IHL?

IHL’s relatively sparse rules for NIAC reflect States not wanting to provide legitimacy and legal status to non-state armed groups. This history heavily influenced U.K. High Court Justice Leggatt’s conclusion in ongoing litigation that IHL does not provide an implied power to detain in NIAC. He concluded, in part, that States did not wish to provide detention authority because, if they did, that authority would equally have to apply to rebel armed groups, which would in turn grant them unwelcomed legitimacy and force States into accepting that such groups have a right to “exercise a function which is a core aspect of state sovereignty.” (para. 245.)

While I agree that States did not intend for IHL to grant non-state armed groups an authority to detain, I’d like to dive a bit deeper into a related, but slightly different and broader issue: the impact that sovereignty had on States not wanting IHL to infringe upon their domestic law.

Romania’s delegate to the drafting process of the two Additional Protocols made a general remark that was illustrative of other State interventions, stating “The automatic application to internal conflicts of regulations applicable in international conflicts might have negative results and entail violation of international law and national sovereignty. Any future international regulations relating to non-international armed conflicts must be based on recognition of, and respect for, the sovereign rights of each State within its boundaries.” (p. 103.) Yugoslavia’s delegate similarly remarked, “When preparing the final version of draft Protocol II, account must be taken of the general principles of international law including those of non-interference in the domestic affairs of States and respect of the sovereignty and territorial integrity of States.” (p.105.)

I noted, these were general remarks, not aimed directly at the issue of NIAC internment. Nonetheless, the remarks demonstrated that States sought to protect their sovereignty and their inherent right to manage their citizens as they chose; and this implicitly included applying their domestic laws as they deemed appropriate.  India, for example, made the concise point that proposed rules on penal prosecutions in Protocol II “would be in conflict with his country’s national laws and…would constitute interference in the sovereign right of States.” (p. 359.) Pakistan’s delegate made a similar point. (p. 360.)

These and other interventions demonstrate that the limited number of provisions in IHL that apply to NIAC reflects not only States’ concerns over non-State actor legitimacy, but also a tension between State sovereignty and domestic law on the one hand and, on the other hand, the creation of new international rules for regulating how States fight their domestic armed conflicts.  That States refused to grant Prisoner of War status to captured rebels reflects both issues: States didn’t want to confer legitimacy on the rebels, which would also have prevented the States from applying their punitive domestic law as they saw fit. (p. 358.)

What can be gleaned from above is that while there are stark differences and a severe unevenness in the IHL of NIAC and IAC, the conclusion to draw is not necessarily that what is different can, or even should, be made the same. Rather, the differences in the IHL of NIAC and the IHL of IAC reflect that while there were some domestic laws that States were willing to allow IHL to interfere with, there were other domestic laws that States wanted to retain as exclusively theirs.

Italy’s delegate to the drafting session of the Additional Protocols seemed to have recognized this nuance when he commented on the humanitarian provisions pertaining to people deprived of liberty under the draft Additional Protocol II. While stating that “Any automatic parallelism between the two Protocols was without doubt undesirable,” he conceded, “the plight of persons deprived of their freedom was equally demanding from the humanitarian standpoint. Consequently some parallelism was justified.” (p. 346.)

This dynamic interplay between which domestic laws the drafters intentionally insisted on protecting from international law and which ones they were willing to leave unguarded, was also well-captured in Sweden’s remarks on the death penalty (p. 142): “It should not be impossible to suspend the application of internal penal provisions relating to rebellion during civil wars. Imprisonment should replace the death penalty.”

Of course, Sweden didn’t get its wish, but that didn’t negate the underlying implication of Sweden’s remarks: domestic law operates until IHL demands or allows it to do otherwise. India’s failed attempt (p. 359) to insert language ensuring that provisions on penal prosecutions would not prejudice “the right of a State to apply its national laws,” similarly demonstrated how States sought to make choices between which laws they did and didn’t want IHL to interfere with. Indonesia made a similar proposal, but it too failed. (p. 100.)

These and other examples in the drafting record demonstrate that States collectively made deliberate choices over what parts of domestic law they wished to hand over to IHL, and internment regulations were not one of them.

Due to the fact the States have routinely, inconsistently, and purposefully shaped how international law influenced their domestic law, I’m also not convinced by Ryan’s attempt to demonstrate how the IHL of IAC establishes “an outer boundary of permissive action,” when he asks rhetorically, “what victim of armed conflict would prefer Common Article 3 and Additional Protocol II rather than the full protections of the Geneva Conventions and Additional Protocol I?”

If I’m a detainee living in an IHL vacuum, where there was no other law but IHL, I would obviously choose the latter. But this isn’t an either/or situation. The drafting history demonstrates that detention doesn’t exist in a legal vacuum (or at least it shouldn’t). NIAC detention exists in the context of both applicable domestic and international human rights law, and when those laws (and in particular IHRL) are respected in NIAC, States should generally be bound to internment regulations that are stronger than the full protections of the Geneva Conventions and Additional Protocol I.

Mr. Justice Leggatt, recognizing this interplay of laws, wrote, “it is unnecessary to rely on international law in such conflicts [NIACs], as states can rely on their domestic law to arrest and detain members of organised armed groups who engage in armed conflict within their territory.” (para. 230.) In other words, it is the result of the co-existence of the different legal regimes, and not IHL in and of itself, that prohibits arbitrary detention in NIAC. (For more on this point, see Kevin Jon Heller’s pieces here and here, and Gabor Rona’s new article.)

So, why is it that States permitted IHL to encroach on their domestic laws pertaining to, say, penal prosecution but not on internment? This is a huge question that I will only briefly, and admittedly insufficiently, touch on.

International consensus in domestic law appears to be one important answer. The drafting record shows that many of the penal prosecution provisions that formed Article 6 of Protocol II were easy for States to accept because, as the ICRC delegate explained, they were “already enshrined in all legal systems and their adoption would entail no important changes in the national legislation of the High Contracting Parties.” (p. 347.) Canada, for example, had proposed the deletion of most of draft Article 9’s penal law principles because “it was afraid that not all national systems of penal law were compatible to those provisions.” But Canada then withdrew its proposal after consulting with experts and coming to the conclusion that “there were good reasons for embodying in draft Protocol II concepts that had now been recognized by almost all states.” (p. 349.)

States also noted approvingly that many of the draft penal prosecution protections were reflected in the Geneva Conventions and the International Covenant on Civil and Political Rights (ICCPR).

These drafting session deliberations provide an important window into how States determined what to include and what to exclude in Protocol II. In an atmosphere where delegates were reflecting on the content of the Geneva Conventions (and the ICCPR!), as well as drafting internment regulations for Protocol I, how could it be that States spoke of internment and yet IHL’s internment regulations for IAC, or any regulations for that matter, did not make their way into Protocol II?

Finland’s delegate even drew explicit attention to the fact that the protections for persons deprived of liberty were “extremely modest” compared to protections for persons interned in occupied territories (p. 339.). Yet, the Protocol II drafting record makes no mention of a State comparing the Geneva Conventions’ internment regulations with the absence of similar regulations in draft Protocol II.

Without other indications, the omission on internment regulations in the IHL of NIAC must have been intentional. Moreover, the omission was not an anomaly but, as the drafting record shows, reflected an overarching IHL structure that resisted bringing IAC internment rules into the IHL of NIAC.

http://opiniojuris.org/2015/02/09/guest-post-ihl-doesnt-regulate-niac-internment-drafting-history-perspective/

16 Responses

  1. Fantastic post, JH. I am still waiting to see a convincing explanation of why states would have wanted IHL to authorize detention in NIAC, instead of leaving such authorization to their domestic law. The evolution of authorization to kill and detain makes sense in IAC, where the actions of states directly affected the sovereignty and interests of co-equal states. But in NIAC, such concerns were absent — and until the evolution of IHRL and the very minimum requirements of CA3, there were no international limitations whatsoever on what states could do in NIAC. Even in 1977, when states adopted AP II, the idea that IHRL limited detention would have been relatively foreign. So why would states have needed to authorize detention in NIAC given that nothing (at that point) called their right to detain into question?

  2. Which states claim that IHL affirmatively *authorizes* detention in NIACs, Kevin? Britain?

  3. It seems misleading to state that IHL does not “regulate” detention during a NIAC because, clearly, common Article 3, for example, proscribes hostage-taking-type detention as well as any detention that would amount to torture or to cruel, inhuman, or degrading treatment.

  4. Marty,

    To the best of my knowledge, only Britain has formally made that claim. But there might be others.

  5. Jordan,

    I think we all acknowledge that Common Article 3 regulates certain aspects of NIAC detention. I’m sure what JH, KJH and I, among others also agree on is that the power to detain is not established either by regulation of treatment and conditions of detention, or by the general reference to due process in trials.

    As for Marty’s question, wouldn’t Justice O’Connor’s Hamdi language represent the court’s view that the US, which also happens to have domestic law authorizing grounds and procedures for detention, nonetheless claims that IHL authorizes NIAC detention. According to her opinion, the US takes the view that as long as the conflict looks kinda sorta like the conflicts that gave rise to IHL detention authority, you still have IHL detention authority. Parenthetically, we may like her assertion that once this is no longer true, detention authority may “unravel,” but we should also be unimpressed by her court’s failure to recognize that it relies on customary and treaty IAC apples to state a rule applicable to NIAC oranges.

  6. Gabor: Yes re: “regulation,” so people should stop saying that the laws of war applicable during a NIAC doesn’t regulate NIAC detention or internment.
    Justice O quoted my article, among others.

  7. Thanks Gabor for that clarification.

  8. Dear Jonathan (if I may),

    I may be jumping the gun to some extent, as you did not speak directly to Ryan Goodman’s “reasoning by structure”. As such, I should perhaps have waited for Kevin’s Part II response…

    It is worth noting that there is at least one instance in which that which is permissible in terms of international armed conflicts is not permissible, to the same extent, in non-international armed conflict (from a conventional IHL perspective).

    Article 77 of AP I provides: “The Parties to the conflict shall take all feasible measures in order that children who have not attained the age of fifteen years do not take a direct part in hostilities and, in particular, they shall refrain from recruiting them into their armed forces” (own emphasis). On the other hand, article 4(3)(c) of AP II provides: “children who have not attained the age of fifteen years shall neither be recruited in the armed forces or groups nor allowed to take part in hostilities”. Clearly the prohibition is stronger in the context of NIAC – the “all feasible measures” standard and the DPH threshold of IAC are not reflected in the NIAC provision.

    Certainly Ryan Goodman’s statement that “… if states have authority to engage in particular practices in an international armed conflict … they a fortiori possess the authority to undertake those practices in noninternational conflict” is not true in the present context. This might well be the only exception as regards the general rule that NIAC is less regulated than IAC, however, my interpretation is such that Ryan Goodman’s “reasoning by structure” cannot survive any exception – as such an exception will disprove the roll of IAC as providing an “outer boundary of permissive action” during NIAC.

    Kind regards,

    Gus

  9. To me it seems we continue to have a fundamental disconnect on what IHL actually does, meaning the fundamental purpose it serves. IHL does not affirmatively authorize every permissible act of hostilities in IAC or NIAC. For example, IHL does not affirmatively authorize the use airplanes or tanks or rifles, nor does it authorize the tactical maneuvers of frontal assault and envelopment. It defines what generally counts as “attacks” and places limits on them. The conventional IAC does recognize the power to detain and place both affirmative obligations and limits on it. In general, though, IHL follows the Lotus principle. Whatever is not prohibited is permitted. As Marco Sassoli and many others have argued, the purpose of hostilities is to weaken the military capacity of the enemy to engage in armed conflict. Detention of an enemy fighter is therefore permitted by the IHL of both IAC and NIAC. That does not mean, however, that states must affirmatively prescribe all permissible detention in domestic law. As I have explained elsewhere, to take an example, U.S. law recognizes a general power of military necessity in the President as Commander-in-Chief, to engage in any act that is not prohibited by *applicable* international and domestic law. (This is similar to the function served by the Necessary and Proper Clause related to Congress’s enumerated powers.) Article 75 of AP I and Artcle 6 of AP II place only limits on what is permissible regarding personal detained in NIAC. Both therefore impliedly recognize that there will be individuals not otherwise eligible for specific treatment or protections detained in the course of hostilities. To ask whether IHL affirmatively authorizes any given act of hostilities is not a particularly helpful exercise.

  10. Gus,

    Thanks for that example. I’m going to incorporate it into my article — and cite you, of course!

  11. John: so IHL during an IAC does not expressly authorize detention and it does not expressly prohibit detention as such. Common art. 3 and Protocol II contemplate detention, and more — they impliedly permit detention?

  12. Jordan, I don’t think that is a fair characterization of what I wrote. If I had more time I would clarify.

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