Editor’s Note: This is the second post in a miniseries about the International Committee of the Red Cross’s newly released Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. Other pieces in the series can be found here, here, and here.
Every four years since 2003, the International Committee of the Red Cross (ICRC) has published its Report on International Humanitarian Law and the Challenges of Contemporary Conflicts. As I pointed out last week, the latest report leaves a number of unanswered questions about how international law copes with the age of international terrorism. The recent terrorist attacks in Paris and Lebanon, as well as the presumed bombing of a Russian civilian airliner over Egypt, are part of a long string of reminders that we must settle these questions, and settle them correctly. For example, the ICRC report discusses the application of International Humanitarian Law (IHL) and International Human Rights Law (IHRL) to terrorism and counterterrorism targeting and detention, but could have provided more analysis of some of the most important foundational questions about these relationships. Such an exploration is sorely needed to define war and govern killing and detention in the 21st Century.
The latest ICRC report continues to remind us, as it must, to distinguish the legal frameworks governing armed conflict and terrorism. This is to ensure we don’t apply armed conflict-based powers to kill and detain suspected terrorists outside of armed conflict, where human rights law (with its more rigid restrictions on deprivation of life and liberty) is the appropriate legal framework. The ICRC report notes that not all acts of terrorism fall within IHL and not all violence by non-State armed groups is terrorism, but it stops short of identifying the sources and manifestations of how and why States get this so wrong so often.
The Flawed Vocabulary of Modern Conflict
Some of the blame goes to the misnomers “War on Terror” and “unlawful combatant.” Some goes to the lack of an international legal definition of “terrorism” (and the frequent but incorrect supposition that whoever attacks our troops is a terrorist). And some goes to the failure to appreciate that unlike terrorism — which is always supposed to be criminal — mere participation in hostilities by civilians (meaning persons who are not members of a State’s armed forces) and members of non-State armed groups is not prohibited by IHL.
“War on Terror” is a misnomer because wars can only be had when there are “parties” capable of applying the laws of war. Such parties are by necessity made of people who, when they violate those laws, can (in theory) be held accountable. Terror (or terrorism) cannot be a party to an armed conflict. Thus, it is a mistake to equate a “War on Terror” with IHL, although counterterrorism operations may well fall within an armed conflict governed by IHL.
“Unlawful combatant” is also a misnomer, and more specifically, it’s an oxymoron. The term “combatant” in IHL refers to someone, like a member of a State’s armed forces, who has a “privilege of belligerency.” His or her lawful acts of war are exempt from the operation of criminal laws that otherwise prohibit and punish murder, assault, destruction of property, and sometimes deprivation of liberty. In other words, a combatant is by definition “lawful” and so, the term “lawful combatant” is redundant. Persons who participate in hostilities absent a privilege to do so under IHL are not combatants, they are “unprivileged belligerents” whose belligerent acts are neither prohibited nor “privileged” by IHL. In other words, they may simply be criminals under domestic law.
The term “terrorist” is also greatly abused, though its abusers might be forgiven due to the absence of a precise international legal definition of the term. IHL already prohibits conduct in armed conflict that terrorizes the civilian population. The reference to civilians is key. A reasonable definition of “terrorism” would, at least, exclude acts that target legitimate military objectives (non-civilians, non-civilian objects). Otherwise, for example, we inadvertently lump together ISIS fighters who target civilians (and are, therefore, terrorists) and non-State forces, like the Kurdish peshmerga fighters, who target ISIS fighters (a legitimate military objective). While both may be violating domestic laws against murder, assault, and destruction of property, they are not both in violation of international law. The difference is significant because States are obligated to both respect and ensure respect for IHL and IHRL, but have a greater measure of discretion to enforce domestic law. In fact, IHL encourages post-conflict amnesties for those who participated in hostilities as a peace-building measure, so long as they did not commit war crimes.
Fixing our vocabulary is a necessary task on the road to drawing principled distinctions between what is and is not war, and therefore, to what rules apply to killing, but it is insufficient on its own.
Who Is a “Party” to Armed Conflict and Where?
The ICRC points out that it is also necessary to properly apply IHL rules to the facts on the ground in a conflict when determining who is a party to an armed conflict and who is targetable either by virtue of their status (as a member of enemy armed forces) or conduct (direct participation in hostilities). The distinction between status and conduct is important, since persons targetable by virtue of status are always legitimate targets (subject to application of the principle of proportionality in attack) but those targetable by virtue of conduct are only targetable while engaged in that conduct.
The report further posits that, in order for IHL to be triggered during times of violence, the specific criteria of party organization and intensity of hostilities required to constitute a non-international armed conflict (NIAC) must be met in the territory of each State participating in that violence. Some authorities and academics do not share this view and may think instead that parties to armed conflict “carry” the conflict, and therefore the applicability of IHL, to any State in which they may be. I count myself among them, but still reject the US view that there is a global conflict against al-Qaeda and its “associated forces.” The skepticism is not owed to doubt about the theoretical possibility of a global conflict against a non-State armed group. It is instead thanks to doubt about whether hostilities involving a highly splintered al-Qaeda or its “associated forces,” which may not be very “associated” at all, meet the criteria for a single armed conflict. (For more on the beginning, end, and territorial limits of armed conflict, see my first post in this series). In fact, it seems pretty clear that US reliance on the concept of “associated forces,” which is unknown to IHL, has more to do with domestic politics (e.g., the reluctance to engage Congress in authorizations for the use of force against the likes of Boko Haram, ISIS, and Houthi rebels in Yemen) than with international law.
On grounds and procedures for detention, the ICRC report notes that IHL is pretty clear and comprehensive for conflict between States, also known as international armed conflict (IAC), pointing to the Third Geneva Convention’s protections for prisoners of war and the Fourth Geneva Convention’s protections for civilians. The ICRC report then draws a contrast with the paucity of IHL rules governing detention in non-international armed conflicts, noting that while the IHL of NIAC (namely, Common Article 3 of the Geneva Conventions) presumes detention, it does not establish the grounds and procedures for it.
Here, the ICRC could have noted that where IHL doesn’t apply (because there’s no armed conflict) or where it applies but doesn’t control (e.g., NIAC detention) States must concede the extraterritorial applicability of human rights law, or in the alternative, some other theory by which grounds and procedures for deprivation of liberty are not relegated to a legal black hole. Instead, the report, rather surprisingly, makes no mention of human rights law whatsoever in connection with NIAC detention. It is understandable that the ICRC, whose mandate is IHL, would tend to shy away from pronouncing itself on the details of human rights law, but to ignore it entirely is contrary to the weight of international legal opinion, acknowledged by the ICRC in other publications, on the complementary application of IHL and human rights law in armed conflict.
In support of the application of human rights law to NIAC detention, the ICRC could have noted that there are good reasons for the omission of detention authority from the IHL of NIAC. IAC pits State against State and features a privilege of belligerency for combatants. Thus, a State cannot use criminal law to prosecute (or to detain) enemy combatants. This is why it makes sense for the Geneva Conventions to enact particular rules for detention of POWs and civilians who pose a security risk to the detaining authority. But non-State fighters — an essential feature of NIAC — possess no such privilege. They may be prosecuted, and thus deprived of liberty, pursuant to domestic law, which, in turn, must be tempered by the State’s human rights law obligations.
Sovereignty interests of the State also influence how IHL treats IAC and NIAC detention differently. While IAC is between two or more States, NIAC features either State versus a non-State armed group or non-State armed groups against each other. Thus, in NIAC, all detention issues fall within the sovereign interests of a single State, where domestic law, as tempered by human rights law obligations, can and does apply to detention grounds and procedures. Because of this default to domestic law, IHL doesn’t address grounds and procedures for detention in NIAC. Therefore, it is left to the general law of international human rights to govern. The applicability of human rights law to NIAC detention is significant. Although it does not limit detention to situations of criminal process, human rights law does require that deprivation of liberty be pursuant to law, that it not be arbitrary, and that someone deprived of liberty be entitled to challenge their detention before a neutral and independent body, normally a court.
But complications can occur, for example, in situations like Afghanistan when State A (the US) fights alongside the forces of State B (the Afghan government) against a non-State armed group (e.g., the Taliban and al-Qaeda) inside State B.
This is still a NIAC, but if State A seeks to conduct detention operations in State B, it should be pursuant to the consent of, and the law applicable in State B, and should comport with the international human rights law obligations of both States. If State B neither authorizes nor opposes State A’s detention operations, particularly when governing institutions in State B fail to operate (often the case in armed conflict), State A’s human rights law obligations would still attach. As already mentioned, most international jurisprudence on the matter recognizes the applicability of human rights law in armed conflict. International jurisprudence also recognizes the applicability of a State’s human rights law obligations where the State operates with effective control abroad. The ICRC’s failure to acknowledge the role of human rights law in NIAC detention is particularly troubling in connection with the US, an outlier nation that has long rejected the application of human rights law both in armed conflict and to its operations abroad.
Finally, there is an additional complication concerning NIAC detention. Recall that IHL is built on a premise of equality of parties to the armed conflict. This includes as between States and non-State actors. In IAC, opposing States can detain POWs and civilians pursuant to explicit Geneva Convention authority. But non-State armed groups also engage in detention and IHL does not prohibit it. The problem with applying human rights law to non-State armed groups is the notion that human rights law is traditionally understood to bind only States. However, tradition does give way to present-day reality, where several types of non-State actors, such as multi-national corporations and non-State armed groups are capable of wielding more power than certain States. This fact has led to a growing international legal dialogue about the human rights obligations of non-State actors. Thus, it is no longer such a stretch to assert that in NIAC, and in light of the absence of explicit IHL rules, non-State armed groups that engage in detention must do so in conformity with human rights law. Whether the rationale is in the direct application of human rights law to such groups or a notion that such rules apply as a matter of customary IHL is of little moment.