Today’s release of detainees by Afghan authorities, from the Parwan detention facility near Bagram airfield, has met with strong responses by the US embassy in Kabul (here) and by the US military which “condemns” such actions (here and more recently here). The US has released a dossier detailing specific evidence that detainees have committed serious crimes. And the news media is beginning to discuss the contents of the dossier.

[The US opposition and the Pentagon reference to the Afghan government’s actions as “extrajudicial releases” were recently addressed in an excellent exchange at Just Security—between Gabor Rona and Christopher Rogers.]

There are two powerful — but competing — arguments in international law that I have not seen publicly discussed by US authorities or other stakeholders —despite the direct relevance of the law to this situation. And, the new dossier of detainee information implicates these areas of law in important — though potentially surprising — ways.

I. International law against the releases

Although it may appear at first blush that the notion of an “extrajudicial release” has no origin or basis in international law, a strong argument could be made that actions of the Afghan authorities directly violate international human rights law (IHR) and the law of armed conflict (LOAC).

The right to a remedy in IHR includes investigation and prosecution of government officials and non-state actors who have committed serious human rights violations such as mass-scale deprivation of life.  Imagine if the detainees were, for example, suspected of rape, and there was strong evidence to support their conviction. Release – especially by a nonjudicial body – would constitute a violation of the states’ IHR obligations. Consider for example the clear expression of this understanding in Article 4 of the 2005 UN Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law:

“In cases of gross violations of international human rights law and serious violations of international humanitarian law constituting crimes under international law, States have the duty to investigate and, if there is sufficient evidence, the duty to submit to prosecution the person allegedly responsible for the violations and, if found guilty, the duty to punish her or him.”

International human rights law, if anything, is based on the principle of ending impunity for such crimes.

As indicated in the UN Basic Principles and Guidelines, one could add to this arsenal of legal arguments that the law of war contains a similar anti-impunity principle: parties to an armed conflict are under an obligation to investigate, prosecute and punish war crimes. (As I discuss below, however, it is unclear whether the US dossier contains evidence of war crimes.)

These are far stronger legal arguments than the more ephemeral statements by the US military referring to “a major step backward for the rule of law in Afghanistan” as well as statements by civil society groups in Afghanistan that oppose the releases (see statement by Afghanistan Detentions Working Group).

II. International law favoring the releases

That said, there is a powerful competing legal argument, which I have also not seen invoked publicly. Here’s the competing consideration: the law of armed conflict explicitly calls for parties to a civil war, in bringing about the conclusion to the conflict, to extend amnesty and release detainees held for offences committed in the course of hostilities.

More specifically and forcefully, Additional Protocol II of the Geneva Conventions (art 6) essentially calls for releasing such individuals. Here’s that text (with my emphasis added):

“At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.”

Afghanistan is a party to Additional Protocol II. The US has signed (but not ratified) the Protocol, and the US generally considers its provisions binding customary international law regardless of treaty ratification. The International Committee of the Red Cross (ICRC) considers this amnesty-and-release rule customary international law. And, notably, the 2012 MOU between the US and Afghanistan specifically referred to the Protocol as a basis for detention:

“Any Afghan nationals detained by U.S. Forces outside special operations are to be released or transferred to Afghan authorities to be prosecuted or held in accordance with Afghan laws, including AP II.”

III. Open questions

Two key questions remain.

First, the amnesty-and-release rule of the Geneva Protocol applies only to offences that do not involve war crimes. As the ICRC explains, amnesties for war crimes would be “incompatible with the rule obliging States to investigate and prosecute persons suspected of having committed war crimes in non-international armed conflicts.”

The US dossier, however, identifies only domestic Afghan offences. The important question is whether the incidents described involve only attacks against US and Afghan military forces not in violation of LOAC.

Second, although the end to the Afghan conflict may be in sight, it is arguably premature to invoke a provision that would lead to individuals returning to an existing battlefield. In that case, we may be left with the obligation of the state to protect its citizens (and foreign nationals in its borders) from dangerous criminals and the associated obligation of the state to prosecute perpetrators of serious human rights violations.

For international law experts, this may raise another question: if the alleged actions of the detainees in the course of battle were legal under LOAC, could the acts nevertheless constitute a deprivation of life under IHR triggering the state obligation to investigate, prosecute, and punish (a lex specialis issue for the international legal specialist among us)?

For an excellent analysis of the law and politics behind the recent releases, including an analysis of the 2013 MOU, don’t miss this post by Kate Clark over at the Afghanistan Analysts Network.