The legal machinations within the US government must have been considerable last month after an American special operations raid in Syria captured Umm Sayyaf, the wife of suspected senior ISIL member Abu Sayyaf. As she is regarded as the first high-level ISIL member captured by the United States, Washington must now figure out how to detain her in accordance with international human rights law (IHRL).

Answering this question requires a look at the importance of armed conflict classification, and why it matters that the United States may consider Mrs. Sayyaf’s detention to be regulated by policy rather than law.

(For more on this last bit, be sure to also read this piece by Nathalie Weizmann and Rebecca Ingber. Bobby Chesney also reviewed a number of political and legal questions surrounding her detention, mostly by reference to US domestic law.)

IHRL must be taken into account because, despite the US’s interpretation of its human rights treaty obligations, the International Covenant on Civil and Political Rights (ICCPR), restricting how and when States can restrict liberty, applies to extraterritorial detention in times of armed conflict. This includes security detention, a form of detention-without-criminal charge the United States has likely subjected her to.

To help clarify States’ obligations, in 2014 the UN Human Rights Committee (Committee) issued new interpretive guidance addressing the application of the ICCPR’s Article 9 (the right to liberty) to security detention. The Committee said that such detention may occur only under the most exceptional circumstances, and where a present, direct, and imperative threat is invoked as a justification.

Security detention must also follow the general framework that applies to all deprivation of liberty. There must be a source of legal authority to detain, there must be grounds and procedures for the detention that are established by law, and those laws must be followed. While some may argue that the AUMF grants the United States the authority and grounds to detain, it is far less clear what procedures are regulating Mrs. Sayyaf detention and what the legal source is of those procedures.

Beyond this, there are additional safeguards provided by the Committee that demonstrate her detention cannot be a willy-nilly affair. For example, a burden on the State to prove the need for a person to be held in security detention increases with the length of detention. Also, there is a need for “access to independent legal advice, preferably selected by the detainee, and disclosure to the detainee of, at least, the essence of the evidence on which the decision is taken.”

But the Committee balances these safeguards with a degree of deference to States when their governments feel it is necessary to conduct security detention. Retreating from a human rights maximalist approach, the Committee interpreted the ICCPR as granting States a degree of flexibility and requiring that a detainee have access to a “[p]rompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality as the judiciary.” The Committee also strongly implied that a State does not need to formally derogate from Article 9 to engage in security detention. Finally, some human rights proponents have criticized the Committee for setting a low bar for access to only the “essence” of evidence.

Whether Mrs. Sayyaff’s detention adheres to the Committee’s less strict interpretations of security detention would only be guess work on my part, but there is no reporting I’ve seen stating that Mrs. Sayyaf has had access to a lawyer, the evidence against her, or a review of her detention.

In addition to these considerations, the United States captured Mrs. Sayyaf in the context of an armed conflict, which raises two important and interrelated issues: How do we categorize the armed conflict to which her detention was connected, and how do we apply the Human Rights Committee’s interpretive guidance on security detention to a situation of armed conflict? Answering these questions is important because non-international armed conflicts (NIACs) and international armed conflicts (IACs) carry with them different legal obligations that relate directly to how the United States should detain Mrs. Sayyaf. Categorization of the armed conflict is also important for knowing how to apply IHRL beyond what’s described above.

As Nathalie and Rebecca point out, the question of categorization is dense and complex. There may be an impulse to categorize Mrs. Sayyaf’s capture in Syria, and her subsequent detention in Iraq, as part of a NIAC between the US-led coalition and ISIS. But the United States is also carrying out military operations in Syria without Syria’s consent and that, along with reports of the United States assisting Syrian rebels, raises the prospect of the existence of an international armed conflict between the United States and Syria. Another question to address: To which type of armed conflict was Mrs. Sayyaf’s detention connected? At first glance, the capture and detention appears connected to a NIAC. But here, again, things are complicated by news reports that President Assad and ISIS may be in cahoots.

Whatever the case may be, as its starting point, the Committee observed that the right to liberty (Article 9, ICCPR) continues to apply in times of armed conflict and that IHL is relevant for the purposes of interpreting Article 9. The Committee also observed that when States derogate in the context of armed conflict, derogation measures cannot fall below the applicable rules of IHL.

There is nothing particularly new about these observations, but while Article 9 can “fall back” on IHL’s detailed rules on security detention in IAC (Natalie and Rebecca’s piece nicely reviews those rules) Article 9 security detention has no (or very little) IHL to fall back on when it comes to NIAC. In other words, though complex in appearance, IHL in fact would appear to have minimal impact on IHRL in the context of NIAC security detention procedures. I say appear because the Committee seemed nonetheless to have relied on IHL-like language when it set out its general rules for security detention both inside and outside armed conflict.

In summation, if Mrs. Sayyaf is being detained in the context of a NIAC, for the United States to pass muster before the Committee, the United States would either have to subject Mrs. Sayyaf to a security detention regime that does not derogate from Article 9 or, if the United States could justify derogating from its ICCPR obligations, then “the requirements of strict necessity and proportionality [would] constrain any derogating measures involving security detention, which must be limited in duration and accompanied by procedures to prevent arbitrary application.” If, on the other hand, Mrs. Sayyaf is being detained in the context of an IAC, it appears that the Committee would bend considerably towards the application of IHL’s rules on IAC detention.

With respect to the United States interpretation of these legal matters, it takes the position that it can generally apply IHL’s rules of IAC detention to NIAC detention, as it does so as a matter of policy. This is in contrast to the notion that the categorization of armed conflict heavily influences which rules of IHL and IHRL are applicable to security detention. While the US approach could be said to fill gaps in the sparse set of rules that the IHL of NIAC offers, it is a seriously flawed approach and it would be inaccurate to say that such an approach provides a more protective NIAC detention regime.

Firstly, IAC and NIAC detention rules are specially formulated and, for reasons I explain here, those formulations should be respected. Secondly, using IAC rules to “fix” the holes in NIAC sidelines the existence of international human rights law and undercuts the fact that when human rights law is applied to NIAC detention, detainees are afforded more rights and protections than if they were subject to the IHL of IAC.

Finally, applying detention rules as a matter of policy makes those policy commitments susceptible to being nothing more than hollow gestures; they do not compete with the binding nature of legal obligations. In my own experience in Afghanistan, I saw the quality of Detainee Review Board procedures diminish over time and the U.S. policy on non-refoulement had not been respected for long periods. My fear is that a US “policy commitment” is often only as good as the set of individuals who support the policy and have the power to enforce it.