Guest Post: Rona on Mohammed v. Ministry of Defence and Detention in NIAC

by Gabor Rona

What is the source of the power to detain in an armed conflict that is not between states (non-international armed conflict, or NIAC)? Where is the relevant law on grounds and procedures for such detention found? Torture and drones aside, this is probably the most vexing, most controversial, and most significant of debates to come out of the “war on terror.” And it has been fired up anew in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB), a decision of the High Court of England and Wales that has already received a good bit of attention.

The reason I limit the question to “in armed conflict” is that outside of armed conflict, the source of detention power is clear. There, it’s domestic law as constrained by international human rights law that provides the answer. A single important asterisk is made necessary here because a very few recalcitrant states, like the US, deny that human rights law applies to their extraterritorial conduct.

The reason I limit the question to armed conflict “that is not between states” is that in wars between states (international armed conflict, or IAC), the Third and Fourth Geneva Conventions provide detailed instructions on who may be detained, for how long, and why.

But for NIACs, like that in Afghanistan, the Geneva Conventions are silent on the grounds and procedures for detention.

One position is that it makes absolute sense for the Geneva Conventions to be silent on this issue, since detention in NIAC can simply be governed by the law of the state where the detention is taking place – just the same as if it were not armed conflict. There is no work for international law of war to do here. Under this view, people may be deprived of liberty only on grounds and according to procedures set forth in domestic law and in accordance with international human rights law, they must be afforded prompt review by an independent body to determine the legality of detention and to order release, if detention is found to be unlawful. This is, in essence, the right of habeas corpus. This view is increasingly shared by international and national jurisprudence, not to mention human rights advocates.

The decision in Serdar Mohammed, a case that deals with detention power in NIAC, is in accord: in the absence of relevant powers expressed in the law of armed conflict, NIAC detention is subject to human rights law.

The continued applicability of human rights law in NIAC also finds support in the international treaties applicable to such conflicts…

Guest Post: Detention in NIACs: A Pledge in Favour of the Application of IHL

by Ezequiel Heffes

[Ezequiel Heffes holds an LL.M., Geneva Academy of International Humanitarian Law and Human Rights and is a lawyer, University of Buenos Aires, School of Law.]

Recently, the High Court of England and Wales delivered a judgement in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) holding, among other things (see here for an explanation of the whole case), that the United Kingdom lacks detention authority under international humanitarian law (IHL) with regard to individuals it captures in the course of the non–international armed conflict (NIAC) in Afghanistan. In the present case, Justice Leggatt held that Common Article 3 (CA3) and/or Additional Protocol II (AP II) do not provide legal power to detain in the context of NIACs.

Much has been written about this in the blogosphere (see here, here, here and here by Gabor Rona a few years ago). From a theoretical perspective, these writings have raised several interesting arguments. This post, however, will focus on certain practical issues.  I will offer four arguments to suggest that it would be simply counter–intuitive not to recognize that IHL already regulates detentions in NIACs, even though it seems to be explicitly silent on this question.

The protection gap argument

The fact that CA3 and AP II neither mention internment nor elaborate grounds of detention has led to different positions on the legal basis for internment in NIACs. International bodies have prohibited such actions in cases other than when it is necessary for reasons related to the conflict. Here, the Inter–American Commission affirmed with regard to detentions carried out by the Colombian AOGs that “international humanitarian law also prohibits the detentions or internment of civilians except where necessary for imperative reasons of security”. The same view was held by the UN Commission of Human Rights (Resolution 1995/77) when it appealed to AOGs to refrain from “arbitrary” detention of civilians. As Zegveld points out, these bodies seem to have derived this prohibition from the IHL applicable to international armed conflicts, in particular Geneva Convention IV (Zegveld, Accountability of Armed Opposition Groups, at 65).

On the other hand, other resolutions by the UN Commission on Human Rights, such as Resolution 1995/74, deny that IHL permits certain civilian detentions on the grounds that human rights law is, in principle, a body of law only addressed to States, and only States have authority to arrest and detain persons. This would mean that, in the present case, IHL is silent while the international human rights law (IHRL) provision on arbitrary detention (Article 5 ECHR) would only be applicable towards the UK. This, however, represents a protection gap for detainees held by AOGs during the NIAC.  If IHL and IHRL do not apply upon them, then AOGs are able to operate within a legal ‘black hole’ and can in principle detain with impunity from an international law perspective (Somer, at 667–668). This necessarily implies that those detained by non–state actors have less protection than those detained by States, a situation that in the context of an armed conflict could not exist since IHL recognizes the principle of the equality of the parties (see the fourth argument by Kubo Mačák).

The judicial guarantees argument

CA3 affirms that “the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people” is prohibited with respect to protected persons. Article 5 of AP II complements this by including several standards based on the more rigorous provisions of GC III and IV.

These provisions and possible detentions in NIACs should be seen through the same prism. Indeed, by granting AOGs the possibility to “regularly” constitute courts and to legislate in order to meet the judicial guarantees component (CA3), States have recognized AOGs’ legal capacity to run a parallel non–state legislative and judicial system outside of State authority (Somer, at 657). If States have accepted this guarantee (and therefore AOGs can declare someone innocent or guilty, or even permitting the person detained to challenge his or her detention), it would be simple logic to accept that they can also detain individuals under the same legal framework. In fact, they are both related since the application of judicial guarantees may serve to prevent indefinite detention in either situation.

The hostage taking argument

Alternatively, if AOGs are not able to detain members of State forces, then there is no practical difference between that situation and hostage taking, which is forbidden by CA3. The 1979 Convention against the Taking of Hostages provides a useful definition: “any person who seizes or detains […] in order to compel a third party, namely, a State […] a natural or juridical person, a group of person, to do or abstain from doing any act as an explicit or implicit condition for the release of the hostage commits the offence of taking of hostages […]”. Even though it was not drafted with a NIAC in mind, the definition contained therein could be considered appropriate in times of armed conflicts (Prosecutor v. Sesay, Kallon and Gbao, para 579) and might cover AOG detentions in the absence of authority under IHL.

As Sivakumaran explains, the means by which an individual enters the custody of the hostage–taker may be through lawful and unlawful means (Sivakumaran, The Law of Non–International Armed Conflicts, at 269). Certainly, the “hostage” label would come after the person has been taken away, regardless of how he or she is taken, but having in mind that an AOGs’ detentions will always be illegal under domestic legislation and not regulated as such by international law, the only characterisation that could frame such conduct under the latter regime would be the “hostage–taking” one. If AOGs cannot detain under IHL, then every person under their control against their will would be a hostage and therefore each detention would constitute an automatic violation of international humanitarian law.

The realistic argument

If none of the abovementioned arguments are enough, then we should just move towards a more realistic approach. This alternative proposes that it is simply unreasonable to consider that AOGs cannot detain individuals from an IHL perspective. As Sassòli (at p. 19) correctly suggests, “[p]arties to armed conflicts intern persons, hindering them from continuing to bear arms, as to gain a military advantage. If the non–state actor cannot legally intern members of government forces it is left with no option but either to release the captured enemy fighters or to kill them”. This implies that AOGs’ members might attack government soldiers instead of trying to legally arrest them. Even if under domestic law the killing of State forces is inherently illegal, no one says that it is prohibited per se under IHL. Yet, according to Sassòli’s argument, we could simply analyse possible detentions by AOGs from a “military advantage” perspective.

To conclude

This post has attempted to demonstrate some possible arguments as to why detentions in NIACs should be logically framed under IHL having in mind the recent decision in Mohammed of the High Court of England and Wales, which held the IHL to authorize such detentions. Certainly, these arguments do not solve all the issues raised in the context of NIAC detentions, but there can (and should be) room for new paradigms, particularly in light of how NIACs operate in the real world and the practical protection concerns that arise if the law were to remain truly silent.

The Boundaries of the Battlefield

by Michael W. Lewis

A busy week of grading prevented me from addressing Ken’s May 6 post on battlefield geography along with the May 6 news that the US conducted a drone attack in Yemen any sooner, but there should be an important take away on the boundaries of the battlefield from the bin Laden operation.

An often heard complaint about the US conduct of the “war on terror” is that it treats “the whole world as a battlefield.” Many contend that such a conception of the battlefield, particularly in the context of a NIAC, violates international law. Mary Ellen O’Connell is perhaps most readily identified with the position that if the NIAC threshold is not met within the geographical boundaries of a specific state then the use of the tools of armed conflict on that state’s territory is impermissible, even with that state’s permission. However many others have taken similar positions with regard to the Aulaqi case or other possible uses of US force outside of Afghanistan (see e.g. my January debate with Ben Wizner of the ACLU on the Aulaqi case).

In analyzing the bin Laden operation Kevin expressed his belief that there is currently a NIAC between the US and “original” al Qaeda, a group to which bin Laden clearly belonged. Although there is not sufficient violence taking place within Pakistan to say that there is currently a NIAC occurring on Pakistani territory, that fact did not prohibit the use of armed force in Pakistan when a participant in the NIAC between the US and al Qaeda could be found there. Likewise, if bin Laden were in Yemen, the same outcome would have been reached, the tools of armed conflict could be employed against bin Laden in Yemen (under certain circumstances) because he was a participant in the NIAC with the US.

The normative reason for this conclusion is that any other reading of IHL with respect to the boundaries of the battlefield would essentially turn IHL on its head. One of IHL’s principal goals is to spare the civilian population and members of the military that are hors de combat from the ravages of warfare. To this end it insists on proportionality and military necessity for all attacks, it requires the acceptance of surrender, it ties the availability of the combatants’ privilege to organizational respect for IHL, and it removes civilian immunity from those participating in an armed conflict either temporarily for such time as they directly participate in hostilities (DPH) or more permanently for those who continuously perform a combat function (CCF). Members of al Qaeda are targetable when they are engaged in attacks (DPH), and leadership (like bin Laden) that is consistently engaged in the planning and direction of operations is targetable at all times (CCF). IHL rewards organizations that enforce the laws of war by allowing members of those orgainzations the combatants’ privilege. IHL discourages terrorist organizations like al Qaeda that target civilians and blend in with the civilian population (thereby placing them at greater risk) by denying them the combatants’ privilege and removing civilian immunity from its members.

However, if IHL is read to prohibit the use of the tools of armed conflict outside of certain geographically defined areas it would be conferring a tremendous strategic advantage upon these same terrorist organizations that it disfavors. By limiting the use of the tools of armed conflict to territory on which the threshold of violence for a NIAC is currently occurring, IHL would effectively create sanctuaries for terrorist organizations in any state in which law enforcement is known to be ineffective (like Yemen, Somalia, Sudan and the FATA area of Pakistan). This reading of IHL would thereby cede the initiative in the NIAC between a state actor that abides by IHL and a non-state terrorist organization (which IHL disfavors in every other way because of its conduct during an armed conflict) to the terrorist organization. The disfavored terrorist organization would get to decide when, where and how the war is to be fought because they would be immune from targeting based purely on geography. That cannot be how IHL should be read when considering the boundaries of the battlefield.

This does not mean that IHL does not offer a number of other challenges to strikes in Yemen or elsewhere. Has the NIAC threshold been met just for al Qaeda, or are other organizations such as AQAP properly part of that NIAC? Do the strikes comport with military necessity and proportionality? What sort of positive identification procedures are required before such strikes take place? Is some form of independent post-strike review required? Is host state permission required? If not, (in the self-defense paradigm) has the host state shown itself to be unwilling and/or unable to apprehend the targeted individuals? What is the standard that should be used to make the unwilling/unable determination? All of these are legitimate questions that may call into question some, most or all of the US’ drone strikes outside of Afghanistan (depending upon how you choose to answer them).

But the question of whether IHL provides a geographically-based immunity for participants in a NIAC should be answered in the negative once and for all.

How Should the Conflict in Libya Be Categorized?

by Michael W. Lewis

The UN Security Council’s approval of the no-fly zone over Libya serves to answer the thorniest jus ad bellum questions, but there are also jus in bello questions that need to be answered. Most importantly, what kind of conflict is this?

Before the UN became involved, the conflict was clearly a conflict “not of an international character” (NIAC) between the Libyan government and rebel forces within Libya. That conflict was governed by common article 3 of the Geneva Conventions and Additional Protocol II. Did the UN’s entry into the conflict change this into an international armed conflict (IAC) subject to all of the provisions of the Geneva Conventions and Additional Protocol I (for ratifying nations which include Libya, France, Italy and the UK)? The language of common article 2 of the Geneva Conventions speaks of an armed conflict between “two or more of the High Contracting parties”. Who is employing force in Libya, the UN, NATO or the coalition nations individually? If the answer is the UN or NATO, neither of those groups are “High Contracting parties” to the Geneva Conventions. It should be recalled that Justice Stevens in Hamdan determined that the conflict between the US and al Qaeda was not an IAC because one of the parties to the conflict was not a party to the Geneva Conventions. The same reasoning might be applied here. It is only if the conflict is viewed as being between the allied nations of the US, the UK, France, Italy, etc. and Libya that this conflict would clearly be considered an IAC.

Does the fact that the United States has gone to great lengths to make it clear that NATO is in charge of the operation lend weight to viewing this conflict as NATO v. Libya? On the other hand, does the French recognition of the Libyan rebel forces as the legitimate government of Libya favor viewing the conflict as France (and its allies) v. Libya?

One reason why the characterization of the conflict matters is the concept of the combatants’ privilege. This privilege allows members of national armed forces to avoid criminal liability for the harm they do, as long as their actions comport with the laws of war. Without this privilege participants in an armed conflict could be subject to criminal liability for assault, murder, arson, etc. resulting from any use of a weapon. If this is an international armed conflict then the privilege applies to members of national armed forces (Libya, France, the US, etc.) involved in the conflict. If this conflict is a NIAC then combatant status, and the privilege that flows from it, is not clearly developed. AP II contains no mention of “combatants”. It assumes that the domestic law of the state in which the conflict is taking place will regulate the conduct of the conflict.

If this is a NIAC are the allied forces entitled to the combatants’ privilege? The common sense answer to this question must be yes, that US and French armed forces are not incurring potential criminal liability for conducting strikes that comport with the laws of war under the authorization of the UN. However it is less than clear what the source of that privilege might be. Is there a privilege associated with being part of a UN authorized force, even in a NIAC, and is the scope of that privilege the same as the combatants’ privilege found in IAC’s? Or is the need to find a combatants’ privilege for the UN authorized force another independent and compelling reason to classify the conflict as an IAC in the first place?

I don’t believe that IHL currently provides definitive answers to these questions, and the status of the rebel forces complicates matters even further. My own proposed solution, which will be the subject of another post, is that the conflict be treated as a NIAC but that the status of all parties to the conflict, not only the UN forces and the Libyan army, but that of the rebels as well, be more clearly and symmetrically articulated.

Does AP I Art. 75 apply to NIAC’s?

by Michael W. Lewis

There has been a good deal of discussion both here between Kevin Heller and Cully Stimson and over at Lawfare by Jack Goldsmith, Gabor Rona and John Bellinger on the impact of the Administration’s declaration on Additional Protocol I and it’s possible effect on hearsay admissions in military commission hearings.

While I agree with Jack and Kevin that it should not effect the military commissions it is for a reason scarcely touched upon in any of the other posts. That is the existence of Article 6 of Additional Protocol II, the AP II analog to Article 75(4) of AP I. While John acknowledges its existence he states that it is virtually identlical to Article 75, and he is right to a point, but it is the difference between these articles that is so critical.

It was the “right to examine . . . the witnesses against him” which prompted Cully to posit that this might undermine the hearsay exclusions found in the military commissions. This right is found in Article 75(4)(g) of AP I. However, unlike Article 75(4) which has ten subparagraphs (a-j), Article 6 only contains 6 subparagraphs (a-f). The included paragraphs are essentially identical, but Article 6 does not contain a subparagraph (g) or any language about a right to examine witnesses.

This matters because both the plain language of the Geneva Conventions and their interpretation by Justice Stevens in Hamdan, indicates that the conflict between the United States and Al Qaeda is a non-international armed conflict (NIAC) which is governed by Common Article 3 and Protocol II, as opposed to an international armed conflict (IAC) which is governed by the full panoply of the Geneva Conventions and Protocol I.

Because the Additional Protocols were drafted in parallel, AP I applying to IAC’s and AP II to NIAC’s, differences between the two would seem to reflect the contracting states’ desire to differentiate between the two types of conflict. As a result, claims that portions of AP I have become customary law for IAC’s, the field of conflict they were intended to regulate in the first place, are much stronger than claims that provisions of AP I have become customary law for NIAC’s. This is particularly true where, as here, the provision governing NIAC’s, Article 6, consciously excludes the very language that is being advanced as having achieved customary status (Article 75(4)(g)). In such a circumstance, absent a clear and unequivocal statement that a state considers itself bound by the AP I provision in the context of a NIAC, such AP I provisions cannot achieve customary status. The Administration’s statements regarding Article 75 and AP I fall well short of this mark.

I wrote at more length on this issue here in discussing the Hamdan opinion’s reliance on Article 75 rather than Article 6 in the context of a NIAC.