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Critical attention to the Obama Administration’s handling of the ongoing conflict with al Qaeda and associated forces tends to center on debates over drones and targeted killing, not captures. This may be due at least in part to the fact that, over the course of President Obama’s entire tenure in office, the United States has conducted almost no law-of-war capture and detention operations outside of the Afghan theater.
So it is with interest that we learned a few weeks back of the capture and detention of Umm Sayyaf, wife of senior ISIL leader Abu Sayyaf, in Syria.
Umm Sayyaf is only the second or third known “law-of-war detainee” under President Obama outside of the Afghan theater, and the first known detainee in the conflict with ISIL. Yet there has been little discussion to date of the legal justification for, or the questions raised by, her capture, ongoing detention, and potential transfer or prosecution. (With the notable exceptions of Bobby’s piece from Tuesday on the competing policy concerns involved in long-term military detention, and an early post on the raid by John Bellinger.) We thought we might discuss a few of the international law considerations that might be bouncing around among executive branch lawyers tasked with determining her fate.
A brief review of the background:
On May 15, U.S. military forces conducted a raid in Syria that resulted in the death of ISIL leader Abu Sayyaf, who was killed after engaging U.S. forces. His wife, Umm Sayyaf, was captured in that raid and U.S. forces are now detaining her in Iraq. The official White House release says it “suspect(s) that Umm Sayyaf is a member of ISIL, [and] played an important role in ISIL’s terrorist activities.” (This language is critical to the U.S. legal analysis and is not incidental, as we’ll discuss below.) After Umm Sayyaf’s arrest, an interagency team known as the “High Value Detainee Interrogation Group” was reportedly conducting her interrogation in Iraq. A recent report mentioned that she has provided information to investigators.
So what does international law have to say about the detention and “ultimate disposition” of Umm Sayyaf?
1. The Significance of Classification of the Conflict in Syria and the Applicable IHL Framework
Let’s put to one side for the moment the domestic law questions the US intervention in Syria raises with respect to the extension of the AUMF to ISIL forces. Salient questions remain regarding the appropriate international legal framework and its application to these circumstances. First and foremost, how the conflict is classified will have real consequences for determining the precise IHL rules that govern as a matter of law the parties to the conflict. Whether the conflict is best classified as an “international armed conflict” (IAC) between the U.S.-led coalition and Syria, a “non-international armed conflict” (NIAC) between the U.S.-led coalition and ISIL, or some combination of the two may be a matter of debate. Moreover, recent news suggesting that Assad’s forces may be aiding ISIS adds fuel to the complexity of classification. IAC rules are extremely detailed and provide for specific treatment of individuals in the hands of a party to the conflict, while NIAC rules also require humane treatment for such persons, but are significantly less detailed.
Nevertheless, in this context the distinction between IAC and NIAC could be less critical because the United States has for years asserted adherence to IAC rules in all conflicts regardless of classification, and in particular has accepted the application of at least some of the rules governing IAC to individuals detained in conflicts coming under the AUMF. Certainly for the purposes of authority, the U.S. position has been that it has the authority to capture and detain individuals in this transnational NIAC whom it would otherwise have the authority to act against in a traditional IAC.
Taking this U.S. position at face value, and with the caveats discussed above, we will evaluate the likely and alternative legal justifications for the capture, ongoing detention, and “ultimate disposition” of Umm Sayyaf in accordance with the relevant rules of IHL applicable in IAC, and explore where the distinctions the United States has drawn might prove important.
2. Grounds for Detention
A threshold question is whether U.S. forces are classifying Umm Sayyaf as a combatant/belligerent or not. Here the precise language used in the White House release is no accident; by calling Umm Sayyaf a suspected “member of ISIL,” the White House is signaling that it considers her a combatant/belligerent, not a civilian.
Under doctrine developed within the context of the Guantanamo detention cases, the U.S. Executive asserts the authority to detain members of al Qaeda and associated forces under a law-of-war framework, without charge, until the end of hostilities. While not uncontroversial, the theory espoused since the early days after 9/11 is that such individuals are analogous to combatants in government armed forces, who upon capture may be detained, as contemplated by the Third Geneva Convention (GC3), and who may not be held past the end of active hostilities (unless they are facing criminal prosecution or serving a sentence).
The United States has applied some but far from all of GC3’s detailed rules to members of al Qaeda and associated forces whom it has captured in this conflict. It is not fully clear today whether this incomplete application of the POW protections is a function of the inapplicability of POW status to such persons even within a proper IAC, or rather is due to the overall legal classification of the conflict as a NIAC, under which POW status does not exist as a matter of law. The U.S. government seems to be employing the former theory. If this is indeed the case, it is worth noting that many commentators would suggest that when individuals detained in IAC do not qualify for POW status under GC3, the Fourth Geneva Convention (GC4) would instead apply to their detention and provide certain safeguards, as long as the individuals fulfill the nationality criteria in Article 4.
In that case, assuming Umm Sayaf is not being treated as a POW with the full panoply of GC3 protections, many would argue that the appropriate framework to apply is GC4. (Whether Umm Sayyaf would qualify explicitly as a “protected” person under Article 4 of GC4 is debatable, considering she is a national of Iraq, a state that has sided with the United States in this conflict and has diplomatic representation in the U.S. But under one established approach, her allegiance to ISIL could place her within the scope of GC4 protection.) If Umm Sayyaf were considered a “protected” person under GC4, then her internment would be permitted for “imperative reasons of security,” but with certain safeguards. The biggest difference is that she would need to receive regular process to determine that her detention is warranted and later, still required. While Article 49 GC4 would normally prohibit any forcible transfer or deportation outside of Syria, it does provide an exception where security or imperative military reasons require an evacuation – reasons that we might easily picture in Syria. And unless Umm Sayyaf is facing criminal proceedings or completing a sentence, she will need to be released as soon as the reasons which necessitated the internment no longer exist, and at any rate as soon as possible after the close of hostilities.
In any case, and still assuming an IAC approach, even if Umm Sayyaf is not “protected” under either GC3 or GC4, Article 75 of Additional Protocol I (AP I) would ensure minimum guarantees in her internment for reasons of security or in her detention for the purpose of criminal prosecution. Although the United States is not a party to AP I, it has chosen “out of a sense of legal obligation to treat the principles set forth in Article 75 as applicable to any individual it detains in an international armed conflict ” As for the duration of detention, Article 75(3) of AP I provides that “[e]xcept in cases of arrest or detention for penal offences, [any person arrested, detained or interned for actions related to the armed conflict] shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist” (emphasis added).
By labeling Umm Sayyaf a suspected “member” of ISIL with an important role in ISIL’s terrorist activities, the United States appears to be asserting implicit authority to detain her under the combatant-analogy theory, and thus until the end of hostilities against ISIL. That said, the precedents of the only two other law-of-war detainees captured within this Administration, along with the President’s oft-stated goal of ending out-of-theater detention – at least at Guantanamo – suggest that the Administration will have other scenarios in mind for Umm Sayyaf, as we’ll outline below.
3. Criminal Prosecution and Other Potential Dispositions
If the United States follows the precedents set with Warsame and al-Liby, it may intend to hold and interrogate Umm Sayyaf for a period of time before bringing criminal charges against her. Warsame and al-Liby were each interrogated on navy ships and brought to the United States to face charges in U.S. federal court, both in the Southern District of New York. Warsame ultimately pleaded guilty to various charges including material support to al Shabab and AQAP, and reportedly cooperated with U.S. authorities in other terrorism cases. Al Liby had pleaded not guilty to charges and was due to stand trial, but recently died in custody in a U.S. hospital.
Had Umm Sayyaf been Syrian, and assuming a continued aversion to long-term non-criminal detention, the United States might have considered its final disposition options limited to prosecution in the United States, or transfer to another state with jurisdiction to prosecute her.
In Sayyaf’s case, her Iraqi nationality, and her current detention in Iraq, suggest that the United States might have an ultimate transfer to Iraqi custody in mind. Whether this will be for continued non-criminal detention or prosecution remains to be seen, but IHL would require certain procedural safeguards or judicial guarantees in either case.
To the extent the United States is considering transferring Umm Sayyaf to Iraqi authorities, this raises additional questions and obligations under international law. In particular, any such transfer would be subject to the principle of non-refoulement, which prohibits States from transferring persons within their control to the another State’s control if there is a danger that certain rights will be violated after the transfer. Under IHL, this principle has been expressed in Article 12 of GC3 and Article 45 of GC4, which require that “the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply” the Convention. In other words, the United States would need to ensure that the Iraqi authorities would apply the Geneva protections to Umm Sayaff post-transfer.
Of course, all this assumes that IAC rules govern the situation. Here again, classification of the conflict matters. As noted, the United States does not strictly apply these rules as a matter of law in NIAC. And Iraq might not view these IAC rules as applicable at all if the conflict against ISIL in Syria is classified as a NIAC. It will therefore be critical to know the exact language of any transfer agreement to see what specific assurances the Iraqi government might provide for post-transfer treatment. This also makes non-refoulement provisions under other international instruments all the more relevant. Beyond IHL, the 1984 Convention Against Torture, Cruel, Inhuman and Other Degrading Treatment and Punishment reiterates the non-refoulement principle. Here again, the U.S. government’s legal position on transfers that might occur outside U.S. territory is murky, though it has recently clarified its policy in this regard. During its most recent hearing before the UN Committee Against Torture, the U.S. stated: “as a matter of fundamental policy and practice, the United States does not transfer any individual, whether located in U.S. territory or not, to a foreign country, if it is more likely than not that the person would be tortured.” (emphasis ours)
Rebecca Ingber is joining the faculty of BU Law this summer as an Associate Professor, after fellowships at Columbia Law School. She served previously in the Legal Adviser's Office at the State Department, where she worked most recently on matters involving the law of armed conflict and national security, and served as the principal staff attorney for domestic and foreign litigation issues involving the law of armed conflict.
Nathalie Weizmann is an Associate Research Scholar and Senior Director of the Counterterrorism and Human Rights Project at Columbia Law School’s Human Rights Institute. For seven years she was a legal adviser with the International Committee of the Red Cross, both at Geneva headquarters and in the field. Ms. Weizmann holds degrees from McGill University’s Faculty of Law and from Geneva’s Graduate Institute for International and Development Studies.