31 May IHL and International Human Rights Law in Non-International Armed Conflict
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….”