A while back, the German Law Journal published an exchange between John Bellinger and Silja N. U. Voneky regarding the compatibility of US counterterrorism practices with the laws of war. The first installment was the text of a speech Bellinger gave at LSE in October 06, which GLJ printed here. Voneky's response to the speech appears here, and Bellinger's reply is here.
Continuing that conversation, GLJ has now published a further reply from Gabor Rona of Human Rights First. It is posted here:
Legal Issues in the 'War on Terrorism' – Reflecting on the Conversation Between Silja N.U. Voneky and John Bellinger [pdf-Version]
In brief, Rona complements Bellinger for his earnest efforts to engage the international legal community on this topic, but also takes issue on a number of points. Among other things, Rona argues the following points:
- The Taliban in fall 2001 should have qualified under GPW Article 4(A)(1) as the armed forces of Afghanistan, insofar as the U.S. took the position that it was engaged in an international armed conflict with Afghanistan.
- Even if Bellinger is correct that the more appropriate frame of reference in that scenario was Article 4(A)(2), POW status should not have been denied collectively to the Taliban; it should instead have been determined on an individual basis for each detainee under Article 5 procedures.
- It is unclear whether and to what extent an individual's violation of the law of war can cost an entire organization the ability to claim POW status.
- Regarding CA3 standards of detainee treatment, Rona takes issue with the claimed compatibility of that standard with "enhanced interrogation techniques" like waterboarding.
- Regarding habeas review, Rona contends that in non-international conflict the rules of international human rights law—including an ICCPR right to judicial review of detention—remain in force, notwithstanding of what might be the case in an international armed conflict.
- Regarding the scope of the war on terrorism, Rona calls for distinguishing between circumstances where war actually exists (Afghanistan, Iraq) and thus IHL applies, and other geographic locations in which he contends IHL has no application.
- Regarding who may be detained, Rona notes that unprivileged belligerents constitute "civilians" rather than "combatants", and that IHL makes such dangerous civilians subject to military detention on security grounds during international armed conflict but not during non-international armed conflict; in the latter setting, he says, it is up to domestic law to provide for their detention.
- Rona also critiques the current military commission system as lacking sufficient procedural safeguards.
Taken together, these four articles nicely illustrate the dividing line between the administration and its critics on IHL issues. From the U.S. perspective, the absence of treaty language affirmatively authorizing the preventive detention of unprivileged belligerents does not mean that there is no such authority in the customary law of war, and in particular it does not mean that the September 18, 2001 Authorization for Use of Military Force should be construed narrowly with respect to detention power. From the perspective of critics, however, IHL-based detention authority extends only to the context of international armed conflict, and simply does not exist as an independent basis for detention in the non-international armed conflict setting. The two sides also disagree on geographic lines, with the administration finding affiliation with the enemy force to be a sufficient basis for IHL-based detention regardless of whether the locus of capture happens to be in a geographic area involving ongoing combat operations, and critics calling for invocation of IHL principles to be limited precisely that way.
If the first three points are accepted, then the Taliban were a government with an army, this is a conflict of an international nature, persons enlisted in that army are enemy combatants, and such persons, though entitled to POW status, may be held in military custody without charge for the duration of the conflict.
Subsequent points require that you assume the Bellinger position that the Taliban were not a true government. Then this is a non-international conflict and other rules apply. However, at this point you cannot simply present a set of rules and sweep under the rug the contradictions that apply when those supposed rules are applied to an international non-international conflict. Admitting that some extraterritorial jurisdiction is occasionally claimed, the US certainly lacks a comprehensive body of extraterritorial criminal law that could be used to apply domestic civilian criminal charges against unprivileged belligerents fighting in Afghanistan. Rules that make sense in a civil war, where domestic criminal law could be used against domestic armed groups, do not easily translate into a viable legal regime for prosecuting members of what would have been a legitimate army of a foreign country but for certain legal fine print that Bellinger proposes.
"where war actually exists (Afghanistan, Iraq) and thus IHL applies, and other geographic locations in which he contends IHL has no application." If there is one sentence which shows American style blindness, this is it. War, Americans know, is always safely overseas somewhere. American has fought two World Wars without ever being attacked itself. So while wars were fought in German, Italy, Russia, and China, wars are not fought in America when America is at war.
If we are at war then America is just as much a legal location for the war as Afghanistan, even though the enemy may lack the stealth bombers and aircraft carriers to attack us. Asserting that every successful military attack against the US is an act of Terrorism rather than an act of war (see USS Cole) is plain nonsense. A war has two or more parties, but it has no location other than where either party can project strength. When the Graf Spee showed up in Uruguay, then WWII came to the River Plate. Tomorrow, a boatload of al Qaeda commandos could come ashore at almost any point along the mostly unguarded East Coast of the US. Does war only extend to a place after the enemy has decided to attack it? No, the war was always there, and if we are unprepared for an attack it is our incompetence and not some excuse that the enemy are terrorists.
In individual cases, however, things become clearer. While the war is not abstractly limited to Afghanistan, it is pretty clear that it did not extend to Bosnia when the Boumediene group were detained. It may be no global statement about IHL from Bellinger or anyone else is helpful, and the suggestion in this paper that each case be considered on its own merits by an Article 5 tribunal is the real solution.
Posted by: Howard Gilbert | July 24, 2008 at 03:09 PM