I appreciate both Professor Lederman’s (1 and 2) and Mr. Rona’s (1 and 2) thoughtful comments regarding the re-issued DoD Directive on detention (DoDD 2310.01E), and particularly the well-argued critique of the “unprivileged belligerent” definition. As I suggested in my previous post, reasonable minds disagree on the proper conceptualization of unprivileged belligerency – including the appropriate analogies to status categories (i.e., combatant or civilian). I suspect that Professor Lederman, Mr. Rona, and I will not come to quick agreement on this issue. Nevertheless, I would like to make a few final observations in response to their comments on my previous post.
Professor Lederman questions why DoD even included a definition for unprivileged belligerent in the directive. It is a reasonable question, and one that the drafters considered during the re-issuance process. The simple answer is that it replaced the existing, outdated definition for “unlawful enemy combatant” from the 2006 version of the directive. But a good definition is also operationally necessary for DoD. In the armed conflicts that the United States finds itself today, its enemies are predominantly non-state armed groups. Some would classify their members or substantial supporters by analogy as civilians and detain them as security threats, according to GCIV. But, as I said previously, because non-state armed groups are trained, equipped, and commanded in a manner more similar to state armed forces—because they look and act like armies—it seems more sensible to treat them by analogy as combatants, but without privilege since they fight without lawful authority and without complying with the law of war. Certainly, the non-punitive rationale for detaining members of state armed forces (to prevent their return to the fight) holds for members of non-state armed groups in ways that are not true for civilians who are simply deemed a security threat.
Why does this matter for purposes of the directive? Because in the case of detention it means the difference between detention only when “absolutely necessary” or for “imperative reasons of security,” punctuated by semi-annual reviews with a view toward release, and detention until the end of hostilities with no review requirement. It is the difference between detention based on conduct instead of status – and it’s an important difference. Of course, the United States has mooted some of this distinction, wisely in my opinion, by conducting regular detainee review processes for unprivileged belligerent captives in Afghanistan and Guantanamo. But this has been done as a matter of policy and sound military strategy and not out of a sense of legal obligation or adherence to the principles or framework of GCIV, unless such protections have been afforded as a matter of law (e.g., as Jack Goldsmith opined in 2004 with respect to certain Iraqi insurgents in occupied Iraq). The directive employs the term unprivileged belligerent to clarify that when the United States detains individuals who fit within that definition, such individuals are treated as a third category and not necessarily as civilian internees.
It should also be noted that the definition of unprivileged belligerent allows for some flexibility in its application. For example, the drafters of the document were certainly aware that the proper definition (the sentence before the examples) permitted some overlap with civilians directly participating in hostilities. The examples included for the definition are therefore illustrative and not intended to be exhaustive.
The first example from the definition is focused on the nexus to a non-state armed group. To be sure, this is the example that is more relevant to the United States’ current conflicts. If individuals join or substantially support a non-state armed group in the conduct of hostilities, they are detainable as unprivileged belligerents under the directive. As explained above, the liability in this instance is that the individual may be detained for the duration of hostilities. However, the directive also provides unprivileged belligerents additional review processes under section 3.i., in addition to all the humane treatment protections throughout section 3. There is probably wide agreement that individuals are detainable as unprivileged belligerents when they join a non-state armed group in the conduct of hostilities.
As Professor Lederman rightly notes, there is far less agreement on whether “substantial supporters” are detainable as unprivileged belligerents. Yet, if we view “substantial support” through the GCIII paradigm, this group’s detainability as unprivileged belligerents makes sense. This is exactly the argument that the government made in Hedges:
“The term ‘substantial support’ covers support that, in analogous circumstances in a traditional international armed conflict, is sufficient to justify detention. The term thus encompasses individuals who, even if not considered part of the irregular enemy forces at issue in the current conflict, bear sufficiently close ties to those forces and provide them support that warrants their detention in prosecution of the conflict. See, e.g., Geneva Convention III, Art. 4.A(4).”
Similarly, while Professor Lederman is correct that the government did not use the term “unprivileged belligerent” in the March 13, 2009 Memorandum, it did assert that the president has “authority under the AUMF to detain in this armed conflict those persons whose relationship to al-Qaida or the Taliban would, in appropriately analogous circumstances in a traditional international armed conflict, render them detainable.” And in Hedges, the government has clarified that substantial supporters “are, in short, ‘more or less part of the armed force’ and subject to law-of-war detention for the duration of the conflict,” which would not be consistent with a civilian internment framework.
The second example in the definition of “unprivileged belligerent” is more rooted in history and perhaps less relevant to the United States’ current conflicts. For example, the concept of unprivileged belligerency was at issue in Ex parte Quirin, where the Court held:
“Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful.”
The Quirin court went on to describe “unlawful combatants” as:
“The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals.”
In addition, in 1951, Major Baxter of the U.S. Army JAG Corps defined unprivileged belligerency in an influential article as a “category of persons who are not entitled to treatment either as peaceful civilians or as prisoners of war by reason of the fact that they have engaged in hostile conduct without meeting the qualifications established by Article 4 of the Geneva Conventions of 1949.” Baxter focused his primary attention on spies and saboteurs (combatants who have engaged in the kind of perfidy deemed unlawful by Quirin, but perhaps better characterized as “unprivileged”), the same groups that are included in the second example in the definition of unprivileged belligerent. These groups are still recognized as unprivileged by the longstanding Army Field Manual on the Law of Land Warfare (FM 27-10).
On the Directive’s intended scope of application, Professor Lederman correctly notes that “the Directive is intended to apply only to govern DoD detention operations, and not to affect other important practices—most importantly, targeting.” See, for example, DoDD 2310.01E’s scope of application in section 2 and the limiting provision from the Glossary section. Individuals who join non-state armed groups, or who substantially support them in the conduct of hostilities, accept some of the risks of such hostilities. The interplay between the status of non-state enemy belligerents and targeting is informed by other principles of the law of war beyond the definition of unprivileged belligerency and remains a challenging issue. But the directive makes no attempt to fully address or resolve these issues (focusing instead on detention).
Lastly, to Mr. Rona’s concerns regarding ICRC access to detainees, Mr. Rona is correct that the directive subjects access to detention facilities and detainees to military necessity, a caveat he finds highly objectionable. But there is no nefarious attempt to evade international law here, which, in fact, recognizes such exceptions (e.g., GCIII art. 126, GCIV art. 143). Rather, the directive reflects operational realities – i.e., that at times, certain facilities, particularly those in forward locations (indeed, in places where the “actual fighting in war” occurs), will not be in a position to host ICRC representatives. This restriction of access should be read as temporary and extraordinary, and that is certainly consistent with substantial U.S. practice.