Now that Abu Anas al-Liby has been brought to the U.S. and may be appearing in court as you read this to face criminal charges, it might be tempting to say that all concerns about violations of his rights have been laid to rest. Certainly, it is comforting to know that he will not be sent to Guantanamo and that he’ll be tried in a civilian court rather than a dysfunctional military commission.
That said, imagine there’s a Chinese Uighur U.S. citizen living in McLean, Virginia. She’s committed no crime under US law, but China is displeased with her alleged militant activities on behalf of Uighur independence. China considers her an “enemy combatant” in its “war” against armed Uighur separatist groups, has filed criminal charges against her and wants her back for detention, interrogation and prosecution. Chinese special forces grab her at Starbucks and spirit her off to a Chinese ship on the high seas. Quite apart from the violation of U.S. sovereignty absent U.S. consent to the operation, consider the violation of the Uighur woman’s human right to challenge her detention. Would the U.S. agree that since China says it’s war, she has no human right to pre-transfer due process? That the U.S. could “consent” to her abduction in violation of her rights? Would it be satisfactory that she could raise her objections to her abduction when and if she gets to China? (NB: Mr. al-Liby will have no such right in a U.S. military commission or a federal criminal court. See Beth Van Schaack’s Just Security post on male captus, bene detentus doctrine.) Does anyone doubt there would be a hundred members of Congress calling for an authorization for use of military force against China?
Recent Just Security posts here by Ryan Goodman and Sarah Knuckey and here by Marty Lederman and Mary DeRosa address the concept of extrajudicial detention of enemy combatants or fighters for the duration of the (armed) conflict. Ryan and Sarah’s post proposes some exceptions to this detention power and Meg Satterthwaite succinctly notes how al-Liby’s prolonged detention without independent review violates applicable international human rights law. Below, I address that point with a greater focus on the intersections of the law of armed conflict and the law of peace.
First, to even invoke the detention powers of armed conflict law, there has to really be armed conflict, as I address in an earlier post here. Whether what we call “al Qaeda” today is sufficiently organized to be a “party” to an armed conflict and whether the frequency or severity of hostilities today amounts to armed conflict is debatable.
Next, if it is armed conflict, it has to be between States (international armed conflict, or IAC), not against non-State armed groups (non-international armed conflict, or NIAC). The Geneva Conventions detail the grounds and procedures for detention not only of combatants, but also of civilians in IAC and they do not require judicial oversight. However, the Conventions say nothing about detention powers in NIAC. That’s not an oversight. It’s a reflection of States’ determination that NIAC detention is a matter of domestic and human rights law. Where human rights law operates, there’s a right to court review and there’s no exception for when State A is operating on the territory of State B.
The prevailing U.S. official view appears to be that human rights law due process guarantees simply don’t apply in armed conflict. I’m not so sure. Under what Beth van Schaack aptly describes as “strong” lex specialis doctrine, human rights guarantees would not apply because in armed conflict, the law of armed conflict IHL completely displaces international human rights law. That would work for IAC, where the written IHL is explicit and detailed about grounds and procedures for detention. But applied to NIAC, it would result in a legal vacuum for detention, hardly a preferred construction. In fact, the evidence that human rights law applies in armed conflict, and in NIAC in particular, is overwhelming. It’s explicit in the jurisprudence of the International Court of Justice, the International Criminal Tribunals and the European Court of Human Rights. It’s also explicit in the preamble of the Second Additional Protocol to the Geneva Conventions. And it’s implicit in the text of the Geneva Conventions (Common Article 3’s reference to “judicial guarantees recognized as indispensible by civilized peoples” is about criminal prosecutions, not mere detention, but is clearly a place-holder for human rights law rules).
Under Beth’s “weak” lex specialis doctrine, human rights law would apply because the law of armed conflict simply doesn’t cover NIAC detention. And human rights law, specifically Article 9.4 of the International Covenant on Civil and Political Rights (ICCPR), recognizes a detainee’s right to challenge detention in a court (without defining what a court is). Article 4 of the ICCPR recognizes the right of States to derogate from the provisions of Article 9, but that merely confirms the operation of Article 9 where the conditions for derogation have not been met, as is the case here.
It’s been argued that there is, in fact, no vacuum – that there’s a customary international humanitarian law-based power of extrajudicial detention in NIAC. That may be the U.S. official view, and there is evidence of other States’ practice of extrajudicial detention in NIAC, but there is also practice and opinio juris to the contrary. Afghanistan regularly objected to U.S. detention there on the ground that it violated the Afghan Constitution, which recognized no exception for armed conflict. See, for example, here. See also the enumeration of State practice, opinio juris and the pronouncements of international bodies in support of the ICRC’s view that arbitrary detention is prohibited in NIAC. And to those who will correctly respond that the ICRC is not a lawmaker, please note that I am not touting the ICRC’s conclusions, I’m merely referring to their collection of the practice and pronouncements of others on the prohibition of arbitrary detention in NIAC. As for the ICRC itself, the organization clearly endorses the application of human rights norms to NIAC detention. (“… even though the right to liberty of person may be derogated from in situations of emergency, such as noninternational armed conflict, human rights soft law and jurisprudence have established that the right to challenge the lawfulness of one’s detention before a judicial body must be preserved in all circumstances.” At p. 387). Indeed, it would be difficult to see how the prohibition of arbitrary detention might be enforced absent review that is independent of the detaining authority.
Marty and Mary suggest that the recent Libya and Somalia raids represent a (welcome and long overdue) change in the face of U.S. counterterrorism operations: from killing to capture, hopefully leading to civilian detention rather than Guantanamo, and to federal prosecution instead of military commissions. Maybe and hopefully so, despite that drone attacks continue, that the military commissions have yet to be put out of our collective misery, and despite the stop-and-start efforts to end Guantanamo detention. President Obama recently said “this war, like all wars, must end. That’s what history advises. That’s what our democracy demands.” But how we expect to get there in compliance with rules we demand that others follow is not yet clear.