On March 30, lawyers representing five Afghan detainees at Guantanamo Bay asked President Obama and four senior administration officials to release their clients on the grounds that there is no legal basis for their detention now that President Obama and other officials have declared an end to the combat mission in Afghanistan and to “America’s longest war.” This request comes alongside a renewed habeas challenge from their clients’ fellow Afghan detainee, Mukhtar al Warafi, on the same grounds (see Marty Lederman’s post).
In Hamdi v. Rumsfeld, the Supreme Court explained with respect to the 2001 Authorization for Use of Military Force (AUMF) that “we understand Congress’ grant of authority for the use of ‘necessary and appropriate force’ to include the authority to detain for the duration of the relevant conflict, and our understanding is based on long-standing law-of-war principles.” Now faced with new efforts to release Afghan detainees held in Guantanamo Bay, the administration, courts and lawyers will need to look to these law-of-war principles. It is particularly worth examining what these principles say about when to release persons who are held for security reasons, without any criminal charge, in relation to an armed conflict (also called internment).
(This post sets aside the question of whether — for IHL purposes — hostilities in the Afghan government’s armed conflict with the Taliban, or US participation in the armed conflict, have actually ended. Obviously, those questions will be at the heart of the forthcoming habeas litigation.)
International armed conflict
Consistent with Hamdi, since at least early 2009, the United States has recognized that principles derived from International Humanitarian Law governing international armed conflicts must inform the interpretation of the detention authority conferred by the AUMF:
The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war. … The laws of war include a series of prohibitions and obligations, which have developed over time and have periodically been codified in treaties such as the Geneva Conventions or become customary international law. … The laws of war have evolved primarily in the context of international armed conflicts between the armed forces of nation states. This body of law, however, is less well-codified with respect to our current, novel type of armed conflict against armed groups such as al-Qaida and the Taliban. Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict. (Emphasis added.)
In light of this position, the rules of the Third Geneva Convention (GC III), Fourth Geneva Convention (GC IV), and Additional Protocol I (AP I) (all applicable in international armed conflict) can inform the release of persons whose deprivation of liberty is governed by the AUMF.
Article 118 of the GC III requires that prisoners of war who are not facing criminal proceedings or serving a criminal sentence “shall be released and repatriated without delay after the cessation of active hostilities.” As explained in the Commentary, “[i]n time of war, the internment of captives is justified by a legitimate concern to prevent military personnel from taking up arms once more against the captor State. That reason no longer exists once the fighting is over.” The Commentary adds that the requirement to repatriate without delay after the cessation of active hostilities does not affect the obligation to ensure that repatriation takes place in accordance with humanitarian rules and the Convention.
Similarly, under Articles 132 and 133 of the GC IV, each individual interned as an imperative threat to security shall 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, even though the Convention otherwise continues to apply until the “general close of military operations.” The Commentary to Article 133 explains: “Since hostilities are the main cause for internment, internment should cease when hostilities cease.”
Article 75(3) of the AP I to the Geneva Conventions also 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). Although the United States is not a party to the AP I, in 2011, the US government indicated that it would “choose 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.”
That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Consistent with this understanding, in Hamdi, the Supreme Court held that “[i]t is a clearly established principle of the law of war that detention may last no longer than active hostilities.” In its brief to the Court, the US Government likewise argued, “[i]n time of war, the President, as Commander in Chief, has the authority to capture and detain enemy combatants for the duration of hostilities.” It added in a footnote that “[b]ecause Hamdi is not serving any criminal punishment, he may be released after the current hostilities end or at any point that the military determines such release is appropriate.”
In an international armed conflict, an “unjustifiable delay in the repatriation of prisoners of war or civilians” constitutes a grave breach under Article 85(4)(b) of the AP I. The Commentary to this provision explains: “Only material reasons such as circumstances making transportation impossible or dangerous are acceptable. The intention to use prisoners of war or civilians in one’s power as a means of applying pressure on the adversary, for example, is not acceptable.”
Non-international armed conflict
The customary IHL rule applicable in non-international armed conflict similarly provides that persons deprived of their liberty in relation to the conflict (and who are not facing penal proceedings or serving a sentence) must be released “as soon as the reasons for the deprivation of their liberty cease to exist.” Like an individual interned pursuant to the GC IV, this means that a person interned because they posed a certain threat at the time of capture should be released when they no longer pose that threat, even if this occurs before the end of hostilities. As Jelena Pejic has written, “[a]s regards the outer temporal limit of internment, the general IHL rule is that internment must cease at the end or close of active hostilities in the armed conflict in relation to which a person was interned.”
Additional Protocol II (AP II) (to which the US is not a party) does not indicate when the Protocol ceases to apply, but the Commentary to Article 2(2) of the AP II makes clear that it is logical that “the rules relating to armed confrontation are no longer applicable after the end of hostilities.” The Commentary then adds, “In principle, measures restricting people’s liberty, taken for reasons related to the conflict, should cease at the end of active hostilities … except in cases of penal convictions.”
The end of hostilities vs. the end of armed conflict
As the above provisions suggest, and the Court of Appeals in Al-Bihani has acknowledged, IHL distinguishes the end of armed conflict from the end of hostilities.
Indeed, comparing Article 6 of the GC IV on the beginning and end of the Convention’s application to Article 133 of the GC IV on the end of internment reveals a distinction between the “general close of military operations” (i.e., the end of armed conflict) and the “close of hostilities.” The Commentary to the AP I explains: “The general close of military operations may occur after the ‘cessation of active hostilities … .’” In the Tadic jurisdiction decision, the International Criminal Tribunal for the Former Yugoslavia also wrote that IHL “applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities …. .” In light of this, the above rules on release from internment will take effect even before the armed conflict has ended.
Much can be written about the defining elements for the end of hostilities versus the end of an armed conflict. Briefly, on the difference between the two, Derek Jinks has written: “[the ‘cessation of active hostilities’] refers to the termination of hostilities – the silencing of the guns – whereas the [general close of military operations] refers to the complete cessation of all aggressive military maneuvers.”
Examples of practice
In both international and non-international armed conflict, parties to the conflict have typically released internees pursuant to explicit clauses contained in cease-fire or other agreements concluded at the end of hostilities or armed conflict. Unfortunately, reported practice in releasing internees does not adequately highlight the distinction between the end of hostilities and the end of armed conflict.
For example, Article 4 of the January 1973 Protocol to the Agreement on Ending the War and Restoring Peace in Vietnam provided that the return of all captured military personnel and civilians “shall be completed within 60 days of the signing of the Agreement.” Article 6 provided that “each party shall return all captured persons … without delay and shall facilitate their return and reception.” On February 13, 1973, the New York Times reported that over 140 American prisoners had been released in Hanoi as part of a first phase of repatriation. Similar numbers of prisoners were “to be released at intervals of about 15 days, in proportion to the American withdrawal of troops from South Vietnam.” Between February 12 and March 11, 1973, the Viet Cong had released 299 American prisoners and were still holding 286. The Viet Cong were also scheduled to release hundreds of Vietnamese prisoners, while the Republic of Vietnam took the position that the Viet Cong had violated the security laws of South Vietnam and therefore were subject to trial for their crimes.
As an example in non-international armed conflict, the cease-fire agreement concluded as part of Protocol VI to the October 1992 General Peace Agreement for Mozambique concluded with the Mozambique National Resistance provided that all prisoners being held, except those convicted for ordinary crimes, should be released by the parties. In November 1993, the National Resistance declared that it had no prisoners, and a 1994 US State Department report stated that “in 1993 there were no reports of detention of prisoners for national security reasons.”
Protection until repatriation
In all types of conflict, persons who are held in relation to the conflict and have yet to be released will continue to be protected by IHL until their final release and repatriation, even if this happens after the close of hostilities. In international armed conflict, the Commentary to Article 5 of the GC III explains that “the prisoner must continue to be treated as such until such time as he is reinstated in the situation in which he was before being captured.” The Commentary to Article 6(2) of the GC IV explains that “in the period following the close of military operations conditions are still fairly unsettled and the passions roused by war are still aflame. Hence the necessity for clear rules safeguarding protected persons, most of whom are of course enemy nationals.”
In non-international armed conflict, Article 2(2) of the AP II foresees similar protection, while the equivalent under Common Article 3 to the Geneva Conventions was formulated by a 1963 Commission of Experts:
The settling of an internal conflict, dependent on article 3, does not put an end, by itself and of full right, to the application of that article, whatever the form or the conditions of this settlement may be, whether the legal government re-establishes order itself, whether it disappears in favour of a government formed by its adversaries, or whether it concludes an agreement with the other party. The Commission pointed out that the obligations described in article 3 should be respected “in all circumstances … at all times and in all places”. The Commission therefore considers that the provisions of article 3 remain applicable to situations arising from the conflict and to the participants in that conflict.