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Joint Series on International Law and Armed Conflict: VanLandingham on Procedural Regulation of Detention

Robert Chesney
Thursday, October 6, 2016, 9:19 AM

[The post below is the latest installment of the joint blog series arising from the 2016 Transatlantic Dialogue on International Law and Armed Conflict.

Published by The Lawfare Institute
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[The post below is the latest installment of the joint blog series arising from the 2016 Transatlantic Dialogue on International Law and Armed Conflict. That roundtable was jointly organized and sponsored by the Oxford Institute for Ethics, Law and Armed Conflict, the Oxford Martin Programme on Human Rights for Future Generations (both directed by Dapo Akande), the Washington DC & London delegations of International Committee of the Red Cross, the Houston College of Law (through the good offices of Geoff Corn), and the Robert S. Strauss Center for International Security and Law at the University of Texas (directed by me, Bobby Chesney).]

Prof. Rachel VanLandingham on the Procedural Regulation of Detention in Armed Conflict

Professor Rachel E. VanLandingham, Lt. Col., USAF, (ret.), is an associate professor of law at Southwestern Law School in Los Angeles, California, and spent four years advising U.S. Central Command officials on detention policies in Iraq and Afghanistan.

During our conference, I was asked to generate discussion regarding the procedural regulation of detention during armed conflict, particularly during non-international armed conflicts (NIACs). Though lawyers love process, there is a tendency for both soldiers’ and civilians’ eyes to glaze over when they hear the words “procedures,” as they invoke memories of mind-numbing bureaucratic process endured at one’s department of motor vehicles. Yet procedures are vitally important, as they transform values into reality; they are how fairness marries with pragmatism to produce just results. In wartime detention, they ensure exigent detention is reasonable, and work to satisfy fundamental notions of fairness; furthermore, giving process that is due helps reinforce the legitimacy and hence strategic efficacy of military operations. Establishing and following procedures is just as vital an endeavor in ensuring that individuals detained during armed conflict pragmatically should be detained and lawfully can be detained, as it is in ensuring militaries intentionally target military objectives and not civilians.

While detention is internationally recognized as “a necessary, lawful and legitimate” component of military operations, there remain serious legal gaps regarding how detention should be conducted in the most common type of war, those between states and non-state armed groups. While the Geneva Conventions provide robust, detailed rules regarding how and when to detain both civilians and combatants during international armed conflict (IAC), there is no equivalent for NIACs. It is in states’ best interest to remedy this gap, both to avoid repeating past gross abuses and pragmatically, because such procedures are directly linked to operational success.

The issues most relevant to procedural regulation of NIAC detention fall roughly into three categories: the legal authority to detain; standards of (reasons for) detention; and notification plus review mechanisms. First, legal authority to detain is required because depriving someone of their liberty, if not positively authorized by law, is criminal kidnapping. The source of such legal authority to detain in NIACs is controversial; it certainly seems implied by the law of armed conflict’s principles of military necessity and humanity—why would the law provide authority to kill and not detain? However, as demonstrated by the Serdar Mohammed case in the United Kingdom, one can reasonably argue that the law of armed conflict does not provide positive authority for NIAC detention and hence another source of law must be identified, such as a United Nations Security Council Resolution or domestic law. For example, detention by U.S. forces in Afghanistan is based on the 2001 Authorization to Use Military Force, as well as the above-mentioned customary law of armed conflict principles.

Second, both human rights law and the law of armed conflict require that detention must not be arbitrary; in addition to being based on positive legal authority, standards must exist in order to assess whether or not the detention is reasonable. While the humane treatment provision of Common Article 3 of the Geneva Conventions logically includes this mandate of non-arbitrariness, it does not provide any concomitant standards. In U.S. operations conducted under the 2001 AUMF, detention was authorized for those “part of or supporting Taliban or al-Qaeda forces, or associated forces that are engaged in hostilities;” support was increased to “substantial” in 2009. Yet how do military forces determine whether or not someone who does not wear a uniform is “part of” a hostile force engaged in hostilities against the U.S. and its allies? Does substantial support include those providing revenue streams, or is such support limited to activity more akin to direct participation in hostilities? The law provides no answers.

What about the detention standard “when necessary for imperative reasons of security,” the standard utilized in Iraq post May-2003, found in both a Coalition Provisional Authority memorandum and an annex to United Nations Security Council Resolution 1546 (2004)? Though modeled after Article 78, GC IV’s IAC standard for detention of civilians in occupied territory, this standard remains incredibly broad and undefined, one that does little to check the tendency of military commanders to detain all military-age-males in a combat zone, or to detain individuals based on intelligence-value only. Additional legal criteria need to be developed (surely the wealth of knowledge gained over years of detention operations can be put to such good use) if the United States wants to avoid creating another Camp Bucca, which at one point held over 26,000 detainees in Iraq and fostered extreme radicalization amongst it population, potentially contributing to the rise of the Islamic State.

The last category of procedural regulation of detention is vital in ensuring detention standards are satisfied: this includes notification to detainees of the reason for their detention, and regular review procedures. Prompt notification to detainees of the specific reasons for their detention (required by Art. 75, AP I in IACs—even non-parties like the U.S. agree), especially if coupled with an opportunity for detainees to respond, allows captors to realize their mistakes. In Afghanistan in 2006, four years into combat operations there, the U.S. was still only giving sparse written notification to its detainees at Bagram—to detainees who often couldn’t read. Hence the paper-only review procedures that Bagram officials conducted months later missed numerous detainees who were detained due to mistaken identity or over-zealous detention policies in the field. Not the way to win hearts and minds in a counter-insurgency fight, never-mind not the way to ensure non-arbitrary, humane detention.

The 2015 DOD Law of War Manual makes a few small strides in this arena by explicitly requiring prompt notification to detainees in NIACs, and follows AP I’s commentary by defining this as usually within ten days. The DOD Manual also requires a “prompt initial review” and that detainees in a NIAC have their detention “reconsidered periodically by an impartial and objective authority to determine the lawfulness and appropriateness of continued detention.” Yet it fails to set a defined interval for these periodic reviews, despite years of detention operations that clearly demonstrate that reviews every six months are more than achievable, and pragmatically desirable. Furthermore, the Manual excludes detainee participation in such reviews, despite the growing U.S. norm—eventually realized in Afghanistan, Iraq and GTMO—that such participation contributes to detaining only those who need to be detained. The United States could and should be a leader in this arena, instead of choosing its regular course of attempting to maintain maximum flexibility and thereby compromising doing the right, fair, and just thing in the process.

Robert (Bobby) Chesney is the Dean of the University of Texas School of Law, where he also holds the James A. Baker III Chair in the Rule of Law and World Affairs at UT. He is known internationally for his scholarship relating both to cybersecurity and national security. He is a co-founder of Lawfare, the nation’s leading online source for analysis of national security legal issues, and he co-hosts the popular show The National Security Law Podcast.

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