The Future of U.S. Detention under International Law: Workshop Report
The Future of U.S. Detention under International Law: Workshop Report
International Committee of the Red Cross 0
0 Harvard Law School Program on International Law and Armed Conflict and Stockton Center for the Study of International Law , U.S. Naval War College
Published by the Stockton Center for the Study of International Law ISSN 2375-2831
International Committee of the Red Cross,
Harvard Law School Program on International Law and Armed Conflict
Stockton Center for the Study of International Law, U.S. Naval War
The Harvard Law School Program on International Law and Armed
Conflict, the International Committee of the Red Cross Regional Delegation for
tHheUnited States and Canada, and the Stockton Center for the Study of
International Law at the U.S. Naval War College recently hosted a workshop
titled Global Battlefields: The Future of U.S. Detention under International Law.1 The
wOorkshop was designed to facilitate discussion on international law issues
pertaining to U.S. detention practices and policies in armed conflict. Workshop
participants included members of government, legal experts, practitioners and
scholars from a variety of countries. To encourage candid, productive debate
and discussion, the workshop was conducted under Chatham House rule.
While far from a new occurrence, detention for reasons related to armed
conflict has presented numerous legal challenges in recent years. In
particular, much debate has surrounded the law applicable to detention in
non-international armed conflicts (NIACs), or conflicts between a State and an
organized non-State armed group or between two or more non-State armed
The thoughts and opinions expressed in this report are meant to summarize key
issues raised at the workshop and do not necessarily reflect the views of the International
Committee of the Red Cross, the Harvard Law School Program on International Law and
Armed Conflict, the Stockton Center for the Study of International Law, the U.S.
government, the U.S. Department of the Navy or the U.S. Naval War College.
1. The workshop occurred on May 16 and 17, 2016 at Harvard Law School.
groups).2 Not only has the sheer number of NIACs increased, but these
conflicts, which previously often occurred solely within the territory of a single
State, now frequently have extraterritorial elements, including cross-border
hostilities or multinational military operations within a country.
Controversy and a lack of clarity concerning detention in relation to
NIACs have arisen for a number of reasons. These include factual changes in
the number of parties to the conflicts, the way parties are involved and the
geographical terrain on which they are fought, as well as the relative paucity
of codified rules governing detention in relation to NIACs particularly
compared to detention in relation to international armed conflicts (IACs) under
international humanitarian law (IHL).3 Yet another reason is the set of
challenges involved in determining how international human rights law (IHRL)
and IHL interact in relation to armed conflict. As a result, parties to the
conflict and other relevant actors are often faced with complicated legal
questions centered on whether they may engage in detention and, if so, what
procedural guarantees should be provided, under what conditions as well
when detainees must be transferred or be released.
2. It is important to note that there was not necessarily an agreed upon definition of
NIAC detention during the workshop. The discussion centered on “security detention” in
NIACs, which, for the purposes of clarity in this report, will refer to a deprivation of liberty
in relation to an armed conflict where criminal prosecution is not envisaged. Security
detention in relation to an armed conflict is sometimes also referred to as internment,
administrative detention or NIAC detention.
Concerning the scope of applicable international law to NIACs, see, for example,
Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces
in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter GCI];
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter
GCII]; Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6
U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter GCIII]; Convention Relative to the Protection of
Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287
[hereinafter GCIV]; Protocol Additional to the Geneva Conventions of August and relating to
the Protection of Victims of Non-International Armed Conflicts art. 1, June 8, 1977, 1125
U.N.T.S. 609 [hereinafter APII]; Rome Statute of the International Criminal Court arts.
8(2)(c), (d), (e), and (f), July 17, 1998, 2187 U.N.T.S. 90 [hereinafter Rome Statute];
Prosecutor v. Tadić, Case No. IT-94-1-AR72, Decision on Defence Motion for Interlocutory
Appeal on Jurisdiction, ¶ 70 (Int’l Crim. Trib. for the former Yugoslavia Oct. 2, 1995). See
also International Committee of the Red Cross, How is the Term “Armed Conflict” Defined in
International Humanitarian Law? (Int’l Comm. of the Red Cross Opinion Paper, March 2008),
3. Also referred to as the law of war or the law of armed conflict.
Multiple bodies of law may be relevant in helping to answer these
questions—in particular IHL, IHRL and domestic law.4 The predominant focus
at the workshop was on IHL, which, among other things, governs the
conduct of hostilities and provides protections for those not, or no longer,
directly participating in hostilities. The underlying purpose and structure of
IHL, it is often said, rests upon a balance between considerations of military
necessity and humanity.5 The main treaty provisions establishing the rules
for NIACs are Common Article 3 of the four Geneva Conventions of 19496
and Additional Protocol II.7 Customary law also regulates NIACs, although
the precise rules considered to reflect customary international law are
This report attempts to capture the main debates that arose in each
session. Over the course of the workshop, the key issues discussed were as
Legal basis for detention;
Grounds and procedures for detention;
Treatment of those detained;
Detention by armed groups;
State responsibility for actions of armed groups;
The future of the U.S.-run detention facility at Guantanamo Bay,
The future of detention related to NIACs more generally.
Given the diversity of approaches taken to many of these issues and the
perceived interconnectedness of various issues, many points resurfaced in
multiple sessions. Certain issues therefore are repeated under several of the
headings in this report and it does not purport to draw conclusions or provide a
comprehensive overview of the discussions.
The focus of discussion in this session centered on whether a legal basis for
detention in extraterritorial NIACs is necessary, and, if so, whether such a
basis may be found in IHL or another body of law. In addition to debating
this question of authorization—or lack thereof—for detention in relation to
NIACs, participants also raised the importance of considering grounds and
procedures for such detention. These latter two issues were primarily
addressed during Session Two.
Regarding the first issue, on whether a legal basis for detention in NIACs
is required, several commentators noted that States generally do not need
international law to authorize their acts, particularly if such acts occur within
their own territory. Consequently, those arguing for this position noted that,
even if one did not view IHL governing NIACs as authorizing security
detention, it would be necessary to seek a legal basis for that detention only if
the detention would violate another rule of international law. For example,
the prohibition in IHRL against arbitrary deprivation of liberty,9 or if one
State was acting in a way that would interfere with another State’s sovereignty
such as undertaking a detention operation in the territory of a second State
without that State’s consent or absent another valid legal basis.
Examination of the view that a legal basis for detention in relation to
NIACs is needed brought about discussion as to whether such a basis could
be found and, if so, in what body, or bodies, of law. With respect to IHL,
this debate focused in part on whether IHL affirmatively authorizes detention
in relation to a NIAC10 or simply does not prohibit it. The diverse views on
this matter often dealt with overlapping issues, many with different
underlying rationales and approaches to the legal regulation of NIACs more
generally. These views fell under the following categories:
Regulation of detention in IHL implies an authorization to
detain. Some commentators considered that because IHL regulates
detention, it contains an inherent authority to detain. At least one
participant linked this view to the fact that detention is not prohibited
by Common Article 3 and is explicitly contemplated by AP II.11
Furthermore, it was noted, though more from a pragmatic perspective,
detention occurs frequently in armed conflict by both States and
armed groups. Yet, some commentators argued that IHL often
regulates activity that might be prohibited by other rules or principles
of international law, and thus regulation by IHL does not necessarily
Conduct-of-hostilities rules in IHL permitting killing imply a
power to detain. A view was expressed that, because IHL permits
the killing of certain individuals and extensively regulates the use of
lethal force, IHL must also provide a legal basis for detention.
Detention, per this reasoning, is a “lesser” infringement of humanity
than killing, and the principle of humanity is a fundamental principle
of IHL. In response to this approach, some commentators argued,
first, that killing is not, in their view, authorized by IHL. Second, those
commentators expressed their view that, in any event, one cannot
equate the categories of people who may be detained under IHL with
those who may be killed under IHL.
10. Treaty law is seen by many as providing a legal basis for detention in IACs. See, e.g.,
GCIII, supra note 2, art. 21 (allowing for the detention of certain individuals who qualify as
prisoners of war); GCIV, supra note 2, arts. 4, 78 (providing that occupying powers may
intern “protected persons” for “imperative reasons of security”). See also id. art. 42 (stating
that in international armed conflict to aliens in the territory of the party to the conflict, States
may intern protected persons “only if the security of the Detaining Power makes it
11. APII, supra note 2, arts. 5, 6.
A norm of customary IHL authorizing NIAC detention might
be developing. Even if, at the time the relevant treaties were
drafted, States did not intend for IHL to authorize detention in
relation to NIACs, subsequent practice of States and/or opinio juris
could, per another argument concerning possible sources of such
detention authority, point to a developing norm of customary
There is no inherent or implied authority to detain under IHL.
Per this view, although IHL does not prohibit detention in NIACs,
it also does not provide a legal basis to detain.
With respect to whether a legal basis to detain in relation to
extraterritorial NIACs could be found in a source other than IHL, the discussion
focused on the following two areas:
Domestic Law. It was suggested that a State could find the authority
to detain pursuant to its own domestic law. For example, it was
submitted that the United States’ 2012 National Defense Authorization
Act13 provides a sufficient legal basis to detain certain individuals.
However, there was some dispute as to whether the 2001
Authorization for Use of Military Force (AUMF)14 provided sufficient
domestic authority for U.S. detentions that occurred before 2012.15
One commentator believed that it did, stating that international law
did not require explicit, specific domestic law providing the basis to
detain. Another view contested that analysis, claiming that—to avoid
being “arbitrary” and, therefore, to avoid violating IHL and human
rights law—the legal basis, grounds and procedures needed to be
sufficiently clear in law. In addition, several commentators noted that
States often introduce domestic laws to address situations of public
2. United Nations Security Council Resolution. A UN Security
Council resolution was discussed as another potential means of
providing a legal basis for NIAC security detention. There were
competing views as to whether a Security Council resolution could
provide the necessary specificity.16 It was noted that this authority, where
established, would be provided to States but would not necessarily
be provided to armed groups. Moreover, it was mentioned that a
State would be unlikely to enact a domestic law granting non-State
armed groups (NSAGs) the authority to detain.
The issue of grounds and procedures for detention was then introduced,
although this topic was discussed in more detail during Session Two.
Irrespective of whether a legal basis for “security detention” in NIACs was seen
to exist, the importance of spelling out grounds and procedures was
highlighted by a number of participants. In the eyes of these participants, security
detention in armed conflict could still be viewed as “arbitrary” under human
rights law if the grounds and procedures for such detention were not
adequately established. Thus, these commentators averred that a sufficiently
specific three-pronged “package”—concerning legal basis, grounds and
procedures—is necessary for such detention to conform to international law.
the first explicit authorization to detain members of al Qaeda, the Taliban or associated
forces, although the exact definition and scope of “associated forces” is still widely debated.
For an a detailed discussion, see Oona Hathaway, Samuel Adelsberg, Spencer Amdur, Philip
Levitz & Freya Pitts, The Power to Detain: Detention of Terrorism Suspects After 9/11, 38 YALE
JOURNAL OF INTERNATIONAL LAW 123 (2013).
16. See, e.g., Lawrence Hill-Cawthorne & Dapo Akande, Does IHL Provide a Legal Basis
for Detention in Non-International Armed Conflicts?, EJIL: TALK! (May 7, 2014),
http://www.ejiltalk.org/does-ihl-provide-a-legal-basis-for-detention-in-non-internationalarmed-conflicts/; see also LAWRENCE HILL-CAWTHORNE, DETENTION IN
NON-INTERNATIONAL ARMED CONFLICT (2016).
It was proposed that in extraterritorial NIACs, agreements between a
host State and an invited State, the domestic law of a host State, or standard
operating procedures (SOPs) could provide (at least some of) the specificity
required for grounds and procedures to conform to the principle of legality.
However, concern was expressed as to whether such SOPs would be
sufficiently binding as a legal obligation. Further, some participants believed that
it might be difficult for NSAGs to utilize any of these methods, whatever
the type of NIAC, potentially resulting in a scenario where NSAGs could
not engage in detention. According to these participants, such a position
would likely be rejected by NSAGs and might result in NSAGs choosing to
forgo detention and, instead, rely on more lethal targeting or, potentially,
resort to unlawful summary executions of captives.
Finally, the group discussed whether the standard of “imperative reasons
of security,” which is laid down in IAC treaty law governing the deprivation
of liberty of certain civilians,17 is a satisfactory ground for security detention
in relation to NIACs. While some participants considered the standard to be
appropriate for NIACs, others raised concern as to its vagueness, suggesting
that it might be too broad. The additional approach of considering
membership in an armed group to be a sufficient ground for security detention was
briefly discussed in this session and returned to in a number of later sessions.
The main procedural guarantees for security detention discussed in this
session were the right to know the reasons for detention (including translation
into a language understood by the detainee); the right to challenge the
lawfulness of detention; review of detention and the independence and
impartiality of the body conducting the review; and the ability to contact family.
In addition, the issue of grounds to deprive a person of his or her liberty in
relation to NIACs was revisited in the context of when detainees should be
Before considering the specific guarantees, the session began with a
conversation around the preliminary issue of when detention for security
reasons actually begins. This question was said to be important because certain
procedural requirements need to be fulfilled only once security detention has
17. GCIV, supra note 2, arts. 4, 78 (providing that occupying powers may intern
“protected persons” for “imperative reasons of security”). See also id. art. 42 (“The internment or
placing in assigned residence of protected persons may be ordered only if the security of the
Detaining Power makes it absolutely necessary.”).
been initiated. There was concern that notwithstanding the significance of
this threshold, international law on the matter is sparse. A view was
expressed that, following capture, security detention begins as soon as the
decision has been made to continue to hold someone. Accordingly, procedural
guarantees are triggered from that point forward. This view led to the
question of how long a detaining power has to decide if it will continue to hold
an individual. A variety of options was mentioned. For example, the
International Security Assistance Force in Afghanistan policy of 96 hours was
referenced,18 while certain international human rights bodies articulate 48 to
72 hours as the relevant time period.19 Drawing from the Fourth Geneva
Convention’s (GC IV) requirement of prompt notification (normally within
two weeks) of the internment or assigned residence of any protected
person20—a requirement that does not apply as a matter of treaty law in relation
to NIACs—the same period was proposed as another option for NIACs,
with detention for security beginning on the fifteenth day if no decision had
been officially reached before then.
On the question of procedural safeguards generally, concern was raised
that even if some States have detailed procedures, such as the U.S.
Department of Defense’s Law of War Manual,21 the fact that each State currently
18. International Security Assistance Force, SOP 362, Detention Of Non-ISAF
Personnel ¶ 5 (Dec. 6, 2011) (“The current policy for ISAF is that Detention is permitted for a
maximum of 96 hours after which time an individual is either to be released or handed into
the custody of the ANSF/GOA.”). See also Mohammed v. Ministry of Defence 
EWCA (Civ) 843  (referencing UK Standard Operating Instruction J3-9 (Amendment
1, §4, Amendment 2, §6) as providing authorization to detain for up to 96 hours) [hereinafter
19. U.N. Human Rights Committee, General Comment No. 35, Article 9: Liberty and
Security of Person, U.N. Doc. CCPR/C/GC/35, ¶ 33 (Dec. 16, 2014) (48 hours),
http://www.refworld.org/docid/553e0f984.html [hereinafter UNHRC General Comment
35]; U.N. Human Rights Committee, Comm. No. 770/1997, Gridin v. Russian Federation,
Annex, ¶ 8.1, U.N. Doc. CCPR/C/69/D/770/1997 (July 18, 2000) (72 hours),
20. See GCIV, supra note 2, art. 136 (stating that “within the shortest possible period,
give its Bureau information of any measure taken by it concerning any protected persons
who are kept in custody for more than two weeks, who are subjected to assigned residence
or who are interned”).
21. OFFICE OF THE GENERAL COUNSEL, U.S. DEPARTMENT OF DEFENSE, LAW OF
WAR MANUAL ch. 8 (rev. ed., Dec. 2016) [hereinafter DOD LOW MANUAL]; Headquarters
Departments of the Army, Navy, Air Force & Marine Corps, AR 190–8/OPVAVINST
3461.6/AFJI 31-304/MCO 3461, Enemy Prisoners of War, Retained Personnel, Civilian
Internees and Other Detainees (1997).
follows its own domestic procedures risks creating a patchwork of rules.
This, in the view of some participants, could produce an illogical—or, at
least, inconsistent—system of rules for multilateral operations because the
procedural guarantees to which a detainee is entitled might vary depending
on which coalition partner was holding the individual. Moreover, this
patchwork approach could give rise to challenges to contributing States as to how
they could provide maximum protections to detainees. It was suggested that
further clarification of procedural safeguards is also necessary due to the
possibility that some States might increasingly resort to short-term detention.
There was some debate as to whether General Comment 35 of the Human
Rights Committee, on the subject of Article 9 (liberty and security of person)
of the International Covenant on Civil and Political Rights (ICCPR),
adequately addressed detainees held by foreign States in relation to NIACs with
an extraterritorial element.22
Regarding specific guarantees, there was consideration of the nature of
an independent and impartial reviewing body and what factors and indicators
might be relevant to it. However, more time was devoted to discussion
around the right to review of one’s deprivation of liberty and the decision to
detain, continue to detain, transfer or release the individual. A number of
participants considered six months to be an appropriate timeframe for
automatic, recurring review, in light of the requirement to review the internment
of civilians “at least twice yearly” under Article 43(1) of GC IV. It was also
22. UNHRC General Comment 35, supra note 19, ¶ 64 (“Security detention authorized
and regulated by and complying with international humanitarian law in principle is not
arbitrary.”); ¶ 65
States parties derogating from normal procedures required under article 9 [of the ICCPR]
in circumstances of armed conflict or other public emergency must ensure that such
derogations do not exceed those strictly required by the exigencies of the actual situation.
Derogating measures must also be consistent with a State party’s other obligations under
international law, including provisions of international humanitarian law relating to deprivation
of liberty, and non-discriminatory. The prohibitions against taking of hostages, abductions
or unacknowledged detention are therefore not subject to derogation.
Outside [the context of international armed conflicts], the requirements of strict necessity
and proportionality constrain any derogating measures involving security detention, which
must be limited in duration and accompanied by procedures to prevent arbitrary application,
as explained in paragraph 15 above, including review by a court within the meaning of
paragraph 45 above.
noted that some documents do not specify the period of review,23 perhaps
in order to provide for operational flexibility.
On the question of the circumstances in which continued security
detention might be justified where criminal proceedings have not been initiated,
several commentators considered that an individual must continue to
constitute a security threat in order to remain detained. Thus, in this respect,
they embraced the standard of an “imperative threat to security” for NIAC
detention, which is laid down in GC IV concerning (continued) detention by
the occupying power of certain civilians in a situation of belligerent
occupation.24 However, even regarding the standard of a threat to security, there
was some debate as to what would constitute such a threat. For example,
some considered that membership in a NSAG could be a sufficient reason
for prolonged detention, while others disagreed. Several participants
suggested that the standard for determining the point at which release is required
should be the same as that initially used to establish that the person
constituted a threat to security. Others held that the two standards should not
necessarily be equated. This set of topics was returned to in later sessions.
It was noted that, even if the proposal that an individual must remain an
“imperative threat to security” to justify continued detention was adopted,
the issue of identifying an appropriate standard for determining that threat
would arise. A participant recommended that the more time that passes since
an individual was detained, the more demanding the standard should be for
the detaining power to demonstrate that the detainee posed an imperative
threat to security. One example raised concerned long-term detention where
criminal proceedings were not instituted. In that context, it was suggested,
that after a period of two years something exceptional, such as new evidence,
was generally necessary for the State to continue to detain those persons. An
assumption underlying this argument seemed to be that, over time, the link
between an individual and the reasons underlying the assessment that he or
she posed a sufficient threat to the detaining power’s security attenuates.
One participant pointed to publicly available U.S. NIAC detention
review standards, such as those found in the Guantanamo Review Task Force
Report of 2010.25 Generally, these review mechanisms are considered to be
a matter of U.S. policy and not to constitute legal requirements.26 It was
explained that the reviews are “forward-looking” (in the sense of assessing
current and future, not past, threat) and consider the personal attributes of the
individual, including change of mindset. This generated some divergent
views as to whether mindset, in the form of allegiance to a group, could (or
should) be considered as a criterion for what constitutes a continued threat
Discussion also touched on whether review standards adopted as a
matter of policy, but not as a matter of law, should be sufficient, especially where
those policy-based review standards are similar in substance to the
obligations the law would impose. One participant believed that a lack of detailed
legal standards was not necessarily problematic, as it allowed approaches to
be tailored to the large variety of situations that could involve detention.
Another participant disagreed, arguing that such an approach did not
provide sufficient consistency or promote the rule of law.
Participants discussed the treaty provisions and customary rules governing
treatment of detainees in NIACs, as well as relevant policy guidelines and
soft law. Several commentators highlighted the shortage of NIAC treaty
provisions regulating treatment of persons deprived of liberty.27 In turn, they
argued that an increased reliance on IHRL rules governing treatment was
25. U.S. DEPARTMENT OF JUSTICE, DEPARTMENT OF DEFENSE, DEPARTMENT OF
STATE, DEPARTMENT OF HOMELAND SECURITY, OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE & JOINT CHIEFS OF STAFF, FINAL REPORT GUANTANAMO REVIEW
TASK FORCE (2010), https://www.justice.gov/sites/default/files/ag/legacy/2010/06/02/
guantanamo-review-final-report.pdf [hereinafter FINAL REPORT GUANTANAMO REVIEW
26. There are other examples of U.S. NIAC detention review processes granted as a
matter of policy, such as the Guantanamo Periodic Review Boards or the Detention Review
Boards in Afghanistan. See U.S. Department of Defense, Periodic Review Secretariat (last
visited June 28, 2017), http://www.prs.mil/.
27. In this regard, it should be noted that Additional Protocol II has more provisions
regulating treatment and that these provisions have a more specific scope than those
expressly stated in Common Article 3.
The session included a discussion of which IHL provisions apply to
treatment of detainees in a NIAC. In terms of treaty law, Common Article 3
establishes a requirement of humane treatment and Articles 4 and 5 of
Additional Protocol II provide additional treatment obligations, including those
related to health and religion for conflicts subject to the Protocol. Some
participants noted that the full contours of the customary IHL rules applicable
to NIACs are unclear. The International Committee of the Red Cross’s
Customary International Humanitarian Law study states that many of the relevant
Additional Protocol II rules—such as prohibitions on corporal punishment
and collective punishments—apply in all NIACs.28 Some participants
suggested that the nonbinding Copenhagen Process Principles and Guidelines29
might have interpretive value concerning treatment standards.
Some expressed the view that the sparsity of IHL treaty rules on detainee
treatment in relation to NIACs should prompt reflection upon IHRL and
guidelines. In terms of guidelines, the United Nations’ Nelson Mandela
Rules30 and the UN Human Rights Committee’s General Comment 3531
were mentioned. If it was deemed necessary to develop international law
governing detainee treatment in relation to NIACs, a commentator
suggested that it was preferable to transpose, mutatis mutandis, IAC rules instead
of those found in IHRL. The rationale put forward in support of that
position was that IAC detainee treatment standards under IHL are more detailed
and appropriate to the context than IHRL standards.32
Several specific treatment issues were also raised. There was a discussion
about whether so-called “force feeding” caused pain or suffering that
violates IHL or IHRL. One participant proposed that the answer depended on
the degree of pain. If the force feeding is intended to keep a prisoner alive
and does not cause severe pain and suffering, it could, according to this view,
even be considered a humane act. By another view, force feeding is clearly
unlawful. Per this argument, if a hunger strike is the result of an informed
decision, then it is a legitimate protest, and force feeding does not constitute
an acceptable response. As a separate issue, one participant mentioned that
family contact is an important treatment issue, as is the avoidance of solitary
confinement, access to open air, exercise and when and how searches occur.
Many of these issues, it was argued, are not dealt with explicitly in IHL under
NIAC treaty provisions or customary law. It was also proposed that
longterm adult care facilities could provide a better model of the sort of facilities
that should be used to house Guantanamo detainees, rather than prisons.
The matter of law versus policy also arose in the treatment context. In
this connection, a desire for operational flexibility was recognized by some
participants, who also believed that legal obligations of greater specificity are
unnecessary so long as policy guidance meets a sufficient standard. Other
participants noted that policy could shift with a change in political leadership,
thereby making policy standards impermanent.
The disposition of people deprived of their liberty in relation to NIACs may
take many forms. Examples include release, transfer, institution of civil or
criminal proceedings and (continued) security detention. This session
focused almost entirely on disposition examples from two States—the United
States and Colombia. Discussion around the former concentrated
predominantly on issues surrounding the transfer of detainees, while discussions on
the latter centered on the prosecution of detainees.
As to the United States, the conversation focused on Guantanamo Bay
detainees.33 Having decided it could be legally permissible for a State to
transfer detainees to a third State, the United States, a participant stated, is obliged
to determine the conditions under which a transfer could be performed.
Such determinations are individualized. Some participants noted that, in their
view, it is not always possible or advisable for the United States to return a
33. There are essentially three different types of dispositions for Guantanamo
detainees: continued NIAC detention, referral for prosecution or transfer to a third State. The
Guantanamo Review Task Force initially determined these dispositions in 2009. At that
time, a fourth category of “conditional detention” was included for thirty Yemeni detainees.
See FINAL REPORT GUANTANAMO REVIEW TASK FORCE, supra note 25.
detainee to the detainee’s home State because of security and humane
treatment concerns. One participant noted that the United States has expressed
a belief that certain provisions of IHRL do not apply extraterritorially except
in narrow circumstances and that those exceptions do not arise with respect
to detainees held at Guantanamo Bay.34 According to this view, the United
States is not legally bound to apply the Convention Against Torture35 either
when transferring detainees from outside of its territory to another State or
when considering whether those detainees would likely be tortured in the
destination State, but would, as a matter of policy, seek humane treatment
assurances and assess whether these assurances were made in good faith. A
number of participants strongly disagreed with this interpretation of the law.
In addition, some participants noted that other rules and principles of
international law would apply in that context.
The discussion also touched on U.S. policy standards concerning
treatment. When deemed necessary, the United States also seeks post-transfer
monitoring assurances. The behavior of States that have received detainees
is also assessed in an ongoing fashion. The provision of assistance such as
language classes, financial support, housing, family reunification and
assignment of legal status were highlighted as important to help ensure (in the eyes
of the United States) a relatively “successful” transfer. It was said that the
United States carries out measures with a view to helping detainees integrate
into the societies to which they are transferred. In doing so, the United States
34. For the U.S. position on the extraterritorial application of the ICCPR, see U.S.
Department of State, Fourth Periodic Report of the United States of America to the United
Nations Committee on Human Rights Concerning the International Covenant on Civil and
Political Rights, ¶¶ 504–05 (Dec. 30, 2011), https://www.state.gov/j/drl/rls/179781.htm.
For the circumstances where the United States accepts extraterritorial application of the
Convention Against Torture, see Acting Legal Adviser Mary E. McLeod, U.S. Department
of State, Opening Statement to the U.N. Committee Against Torture: U.S. Affirms Torture
is Prohibited at All Times in All Places (Nov. 12–13, 2014),
https://geneva.usmission.gov/2014/11/12/acting-legal-adviser-mcleod-u-s-affirms-torture-is-prohibited-at-alltimes-in-all-places/; John Bellinger, U.S. Delegation Asserts Article 16 of Convention Against
Torture Applies Outside U.S. Territory in Certain Circumstances, but Law of Armed Conflict “Takes
Precedence” In Situations of Armed Conflict, LAWFARE (Nov. 12, 2014),
35. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85.
aims to reduce the security risk that former detainees might otherwise pose.36
Ultimately, it was noted that the approval of a transfer depends not on
whether a detainee was a threat, but on whether that threat could be mitigated
outside detention. Accordingly to one commenetator, four elements
considered vital to that assessment are travel restrictions, monitoring, information
sharing and integration assistance.
In contrast to the U.S. approach to detainees held at Guantanamo Bay,
Colombia largely relies on its domestic criminal law system rather than on
security detention. Where detentions that might otherwise be considered to
be conducted in relation to NIAC do occur, they are based on so-called
“ordinary” criminal law (that is, municipal criminal law). Likewise, prosecutions
are generally for criminal offenses that do not require a connection to an
armed conflict. As a matter of law, membership in the Fuerzas Armadas
Revolucionarias de Colombia (FARC) is not, in itself, criminalized under the
domestic law of Colombia; however, in practice, the broad reach of
Colombia’s conspiracy law means that membership in the FARC amounts to a
crime. It was stated that Colombia avoided security detention both because
administrative detention was considered unnecessary—criminal
prosecutions were seen as sufficient—and due to the abuse of such detention in the
A few broader issues arose in relation to disposition generally, including
post-transfer monitoring and the utility of security detention versus certain
alternatives. The discussion touched, for instance, on when post-transfer
monitoring should end in circumstances where such monitoring is
implemented either by the original detaining State or the State to which the
detainee has been transferred. Participants also examined perceived benefits of
security detention versus criminal detention. It was suggested that if
international law was interpreted in a way that rendered security detention largely
infeasible for States, States would nonetheless likely resort to other methods
to achieve the security results they sought. Thus, under this view, before
arguing in favor of increased legal regulation of security detention,
consideration should be given to whether the alternatives (such as criminal
prosecution) would result in a better system, and, if so, for whom. It would be
worthwhile, according to this view, to step back and assess whether the key
decisionmakers in that alternative system, and the persons detained pursuant to
it, would be better or worse positioned.
This session examined the issue of the so-called “irreducible few”
(Guantanamo detainees who reportedly will not be transferred to another State nor
tried) and whether they could (continue to) be legally detained. In the course
of this session, a number of issues from previous sessions were revisited in
the specific context of Guantanamo, including domestic law authorization,
the length of detention and criminal prosecution versus security detention.
In addition, practical issues were discussed surrounding the sort of facility in
which the remaining detainees would be held if Guantanamo is closed.
In relation to a potential new facility, certain participants raised the
Walsh Report as a starting point for establishing appropriate standards.37 It
was suggested that it might be difficult to assess the cost of a new facility
without, for example, a detailed engineering study, but that such an endeavor
would likely result in long-term cost savings. Moreover, a participant argued
that legal changes requiring congressional action are necessary if establishing
a secure long-term detention policy in the United States is the goal. Some
participants suggested three prototypes for such a facility:
1. Acquiring an existing (but possibly non-operating) Department of
2. Transferring the functions of a currently operating Department of
Defense facility (likely a prison) and using the facility purely for
3. Building a new facility, likely on federal land where there was an
existing Department of Defense facility.
One participant suggested, however, that even such facilities would risk
effectively being perceived as “Guantanamo North,” thereby including the
adverse connotations some associate with the Guantanamo facility. Several
participants were apprehensive about the effects of detention at
Guantanamo on future U.S. detention operations. A view was articulated, for
ex37. U.S. DEPARTMENT OF DEFENSE, REVIEW OF DEPARTMENT COMPLIANCE WITH
PRESIDENT’S EXECUTIVE ORDER ON DETAINEE CONDITIONS OF CONFINEMENT (2009).
See also Peter Finn & Del Quentin Wilber, Pentagon Review Finds Guantanamo Conditions Meet
Geneva Conventions, but Urges More Interaction for Some Detainees, WASHINGTON POST (Feb. 21,
2009); William Glaberson, Guantánamo Meets Geneva Rules, Pentagon Study Finds N.Y. TIMES
(Feb. 20, 2009), http://www.nytimes.com/2009/02/21/us/21gitmo.html.
ample, that proportionally more resources are being allocated toward
Guantanamo than are merited when seen in the broader context of detention and
the other security-related concerns the government seeks to address.
Additionally, it was observed that Guantanamo had shaped a generation of U.S.
military personnels’ and policymakers’ attitudes toward detention. There was
concern among some participants that a purportedly excessive legalistic
approach toward detention after 9/11 has focused government actors on the
question of what they could do, not on what they should do.
Moving beyond the specific issue of Guantanamo Bay, three approaches
for the future of U.S. detention were considered:
A “light footprint” model. This approach would involve fewer
detainees held for shorter periods. In this scenario, questions might
arise as to the applicable international law—such as IHL, IHRL or,
perhaps, a combination of frameworks—as well as the geographic,
temporal, material and personal scope of the relevant international
law. The “light footprint” model might also give rise to concerns
regarding non-refoulement, if, for example, detainees are transferred
more quickly to or with less vetting of partner forces.38
Longer-term detention due to increased on-the-ground
fighting against ISIS. In this scenario, a NIAC with extraterritorial
elements was assumed. There could be difficult questions about
interpreting and applying international law and domestic law, a
participant suggested, in relation to detention abroad of ISIS fighters
(many of whom are “foreign fighters” in the sense that they are
nationals of States other than the territorial States in which they are
fighting), and whether the detention takes place in Iraq, Syria or
38. On non-refoulement, see INTERNATIONAL COMMITTEE OF THE RED CROSS,
COMMENTARY TO GENEVA CONVENTION I FOR THE AMELIORATION OF THE CONDITION OF
THE WOUNDED AND SICK IN THE ARMED FORCES IN THE FIELD ¶¶ 708–16 (2d ed. 2016)
[hereinafter 2016 COMMENTARY]; Convention Relating to the Status of Refugees art. 33,
July 28, 1951, 189 U.N.T.S. 137; U.S. Department of State, One-Year Follow-up Response
of the United States of America to Recommendations of the Committee Against Torture
on its Combined Third to Fifth Periodic Reports (Nov. 27, 2015), http://www.state.gov/j/
More detainees captured from outside the territories where the
United States currently purports to be engaged in a NIAC. A
main issue in this regard was whether the groups with which
detainees were affiliated, irrespective of where the capture of an individual
detainee took place, would be considered a party to an armed conflict
against the United States, as that concept is defined under
international humanitarian law. Some commentators, it was noted, believe
that the fighting in each location must reach the armed conflict
threshold for that specific situation to qualify as an armed conflict.
Pursuant to this view, it cannot be assumed that detention of an ISIS
fighter outside of the territory of an active armed conflict is
conducted in relation to that armed conflict. Instead, a case-by-case
analysis must be undertaken.
Participants then returned to the issue of the domestic (U.S.) law basis
for detention, whether resulting from on-the-ground fighting or from
capture of detainees outside of areas where the United States is conducting
hostilities as part of an armed conflict. It was suggested that the 2001 AUMF
might provide a sufficient domestic law basis to detain individuals who
qualify as members of the “associated forces” identified in the 2012 National
Defense Authorization Act (NDAA).39 Discussion focused in part on
whether al Qaeda and ISIS had or continued to have, for purposes of U.S.
law, a legally relevant connection to each other. According to one view, the
splintering is relevant with respect to domestic law. Pursuant to this line of
thinking, the argument that the 2001 AUMF and the NDAA cover ISIS
members would be stronger if the United States had been continuously
engaged as a party to conflict in Iraq from the conflict’s beginning to the
present. Other participants noted that some U.S. courts have accepted a broad
interpretation of the 2001 AUMF with respect to who may fall within the
definition of “associated forces.”40
The discussion also raised international law issues regarding connections
(if any)—in the past and currently—between ISIS and al Qaeda, especially
following their reported “split.” In that regard, some participants questioned
whether in fact an armed conflict could be said to exist in relation to all such
so-called “associated forces.” These participants believed that the U.S.
domestic law concept of “associated forces” may be difficult to reconcile with
the IHL concept of (distinct) organized armed groups and with their
understanding that hostilities conducted with a particular NSAG must reach a
sufficient threshold of intensity before a NIAC can be said to exist with respect
to that particular NSAG. The issue was said to matter in part because the
U.S. approach to detention allows for the capture and deprivation of liberty
of “associated forces” wherever such forces are located.
This session returned to the topic of legal grounds for initial and
continued detention. Several participants rejected the legality under international
law of detention until the end of hostilities. Several other participants agreed
that detention until the end of conflict would give too much weight to
military necessity in IHL’s balance between humanity and military necessity.
Others disagreed, claiming there was no time limitation on detention
imposed by international law as long as hostilities in the relevant conflict
continued. If anything, they maintained, the release of some Guantanamo
detainees during the conflict, rather than their continued detention, was a
historical aberration. In response, the concern was raised that given the
protracted nature of the current conflict, or conflicts, detention until the end of
hostilities could last much longer than it had in the past, effectively resulting
in indefinite detention. Among those who considered that there should not
be a time limitation on detention, a view was expressed that there would
likely be insufficient evidence or, in some instances, a lack of grounds to
institute criminal proceedings against detainees who remain a security threat,
necessitating their continued detention. One participant suggested altering
U.S. detention policy so that the default option would be detention for a
certain limited period—such as six months, instead of
non-temporallybounded detention—with the option of renewing the detention, as
repeatedly as merited, depending on whether the individual concerned remained a
Participants revisited whether membership in a NSAG alone could
justify continued detention or, rather, whether it should be legally required to
assess if the individual remains a security threat. In this regard, several
participants stated that being a member of a NSAG, in and of itself, constituted
an imperative threat to security that would permit NIAC detention. A
number of others viewed the two standards as distinct, although one might
overlap with the other. A participant suggested that many Guantanamo detainees
were initially captured and held solely due to their membership in a group,
rather than on the basis of an individual threat to security. According to that
participant, constituting a sufficient ongoing threat—not membership in a
NSAG alone—is the relevant standard under IHL for continued detention.
Some commentators questioned, for instance, how the Periodic Review
Boards (PRBs)41 could determine that a detainee no longer posed a
significant, continuing threat to U.S. security where the government’s initial
decision to detain was based on that person’s membership in a designated group,
rather than on any specific individual threat posed by that detainee.
In this session, the issues previously discussed concerning legal basis,
grounds and procedures were addressed in the particular context of
detention carried out by non-State armed groups. The question of whether—and,
if so, when—States could be held responsible for violations by NSAGs was
Reference was made to Serdar Mohammed, a prominent case challenging
British detention policy in Afghanistan that was, at the time, being
adjudicated in the United Kingdom’s judicial system.42 Discussion then moved to
the relevant frameworks applicable to detention by armed groups and to the
issue of whether armed groups may detain under IHL or other potentially
relevant frameworks. A number of participants articulated the view that it
would be difficult for an armed group to find a legal basis to detain. In this
regard, an opinion was expressed that if armed groups do not have the
authority to detain under IHL, and in line with Serdar Mohammed, then neither
would the government have that power, if one follows the logic of the
equality of belligerents.43
Irrespective of the legal basis for detention issue, it was noted that, in
practice, many NSAGs do detain. A number of participants expressed the
view that this was a relatively good thing, as the alternative, in some
situations, has been summary execution. In this context, it was pointed out that
armed groups have obligations in the event they detain individuals. A
number of participants maintained that NSAGs must neither violate prohibitions
on discriminatory treatment nor conduct such operations for reasons other
than imperative threats to security. Further, by this view, the NSAGs must
provide a review process for detainees that includes an independent and
impartial body with the capacity to order the detainee’s release, and the detainee
must have an opportunity to challenge the evidence. Notwithstanding these
general statements, it was recognized by several participants that such
procedures might look different in practice when carried out by armed groups,
as opposed to States, and might be difficult to implement. For example, these
participants questioned the form an independent and impartial review would
take when performed by an armed group. The possible challenges posed by
capacity limitations were also raised. Furthermore, it was noted that, while
some armed groups have established their own law or relied upon the law of
the State, the focus generally has been on criminal detention, rather than
security detention (or internment).
It was suggested by one participant that, contrary to the conventional
view that armed groups are not bound by IHRL, that body of law might
provide additional obligations. For example, this participant argued that
IHRL—while often viewed as binding only States—may be interpreted as
also binding NSAGs. To support that proposition, the commentator noted
that several international human rights treaties address third parties; that
some national court decisions apply human rights law to private actors; that
customary law has been viewed as binding upon international organizations;
that Commissions of Inquiry reports to the UN Human Rights Council have
stated that armed groups are bound by IHRL; and that the UN Security
Council has sanctioned an armed group in Cote d’Ivoire for violating the
rights of children.
Other participants argued against this approach, noting, for example,
that the high standards IHRL imposes on States might be diluted if NSAGs
were also required to fulfill human rights requirements. Along the same lines,
it was noted that most NSAGs would likely be unable in practice to fulfill
State-level standards, which might lead to an overall lowering of standards.
The discussion turned to accountability for violations of obligations
pertaining to detention. Before considering the issue of responsibility for
violations, the specific violation of enforced disappearances was discussed. In
particular, it was suggested that detention by a NSAG could be interpreted
as constituting the crime against humanity of enforced disappearance
pursuant to the relevant provision in the Rome Statute of the International
Criminal Court, which provides that
‘[e]nforced disappearance of persons’ means the arrest, detention or
abduction of persons by, or with the authorization, support or acquiescence
of, a State or a political organization, followed by a refusal to acknowledge
that deprivation of freedom or to give information on the fate or
whereabouts of those persons, with the intention of removing them from the
protection of the law for a prolonged period of time.44
However, a participant suggested that the Court would likely examine the
conduct of members of armed groups, rather than considering whether
detention was lawful in the first place. Another participant stated that if IHL
did not prohibit or authorize detention, then detention by NSAGs would
not be a crime under international law and, instead, would be regulated only
as a matter of domestic law.
This conversation led to a discussion of whether NSAGs could be held
responsible for detention that is illegal or is conducted in an unlawful
manner. The U.S. Alien Torts Statute45 was mentioned as one way a NSAG could,
if the detention violated the law of nations, be pursued in a domestic court.
This Statute was also suggested as a means to hold a State that facilitates the
unlawful activities of an armed group accountable for that assistance. It was
noted, however, that a recent U.S. Supreme Court decision significantly
constrained the law’s extraterritorial effect.46
The Arms Trade Treaty (ATT), which the United States has signed but
not ratified, was raised as a possible means by which States could be
discouraged from, or held accountable for, supporting certain forms of detention
that violate IHL and that are conducted by a NSAG. The ATT prohibits the
transfer of arms if the State party “has knowledge at the time of
authorization” of the transfer that the arms “would be used in the commission of
genocide, crimes against humanity, grave breaches of the Geneva
Conventions of 1949, attacks directed against civilian objects or civilians protected
44. Rome Statute, supra note 2, art. 7(2)(i). The first part of the Article requires that a
crime against humanity be “committed as part of a widespread or systematic attack directed
against any civilian population.” Id., art. 7(1).
45. Alien Tort Statute, 28 U.S.C. § 1350 (2012).
46. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (finding that the Alien
Tort Statute presumptively does not apply extraterritorily).
as such, or other war crimes as defined by international agreements to which
it is a Party.”47 In Article 7, the ATT also requires that State parties refrain
from the arms transfer if there is an “overriding risk” that those arms could
be used to commit, or contribute to the commission of, serious IHL or
It was noted that a State may breach its obligations under the ATT where
the State fails to satisfy the applicable due diligence obligations with respect
to considering possible violations of arms use covered by the ATT. In that
connection, a participant emphasized that the ATT can be interpreted as
imposing an obligation on States parties not to provide arms to a NSAG,
where the State has knowledge that the NSAG uses those arms to commit
war crimes, or where there is an “overriding risk” that the group could use
those arms to conduct detention constituting a serious violation of IHL.
Such a breach of an obligation laid down in the ATT, a participant suggested,
was separate from general international law principles concerning
non-interference in the domestic affairs of a third State through the provisions of arms
to a NSAG operating in that third State.
Participants also mentioned that a State could be held responsible in
situations where the State exercised sufficient control over a NSAG, in line,
for example, with the jurisprudence of the International Court of Justice
(ICJ),49 or Article 8 of the (Draft) Articles on Responsibility of States for
Internationally Wrongful Acts.50 One participant suggested that a rule
analogous to Article 16 of the Articles on State Responsibility, which applies only
between States51 could arguably exist with regard to State complicity in
wrongful acts of NSAGs.
The focus then turned to what relevant obligations, if any, Common
Article 1 of the 1949 Geneva Conventions (which obliges High Contracting
Parties “to respect and to ensure respect” for the Conventions “in all
circumstances”) might generate. Differing views were expressed on the scope
of application of Common Article 1 when read in conjunction with
Common Article 3. One opinion was that the obligation to “ensure respect”
under Common Article 1 did not extend to NIACs. This, it was argued, is clear
from the original ICRC Commentary on Common Article 1, which states
that the Article does not apply to civil wars.52 Another commentator
disagreed, stating that because the language of Common Article 1—“in all
circumstances”—is unambiguous, it is unnecessary to turn to a secondary
source of interpretation, such as the commentaries. Thus, the obligations
contained in Common Article 1 perforce applied to NIACs regulated by
Common Article 3 (since NIACs are by definition part of the “all
circumstances” to which the provision explicitly applies). State practice was cited in
support of that opinion.53
Commentators also debated to whom the obligation that High
Contracting Parties “undertake to . . . ensure respect” applies. One view was that the
duty is limited to High Contracting Parties that are involved in an armed
conflict vis-à-vis those under their control, such as the civilians located in their
country. The other view considered that the obligation extends beyond the
particular State party to the conflict (and those under its control) to all High
Contracting Parties. All High Contracting Parties are obliged, according to
this view, to do what is reasonably possible to ensure respect of the law by
other States, and possibly by NSAGs.54 Further to this discussion, reference
was made to the ICJ’s Nicaragua judgment and its finding that States may not
“encourage” individuals or NSAGs to violate IHL, as support for an
obligation found within Common Article 1.55 A commentator maintained that, in
fact, this obligation did not stem from Common Article 1, but rather from
the duty under general international law for States to refrain from
encouraging others to violate international legal norms.
52. COMMENTARY TO GENEVA CONVENTION I FOR THE AMELIORATION OF THE
CONDITION OF THE WOUNDED AND SICK IN THE ARMED FORCES IN THE FIELD 26 (Jean
Pictet ed., 1952). See 2016 COMMENTARY, supra note 38, ¶ 153, for an updated version.
53. ICRC CIHL Study, supra note 8, r. 144.
54. The latter view is represented in 2016 COMMENTARY supra note 38, ¶¶ 143–73. A
participant mentioned the ICJ’s Wall opinion, as providing support for this view. See Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory
Opinion, 2004 I.C.J. 136, ¶ 159 (July 9).
55. Nicaragua, supra note 49, ¶ 220.
During the final session, participants attempted to consolidate and analyze
some of the main strands of the discussion, addressing whether and how
IHL provisions on detention should be developed.
In this regard, a common theme throughout the workshop was the
interaction between law and policy in relation to detention. Participants often
disagreed about whether a system that involved (relatively) few legal rules
and in which detention standards were, in certain key respects, largely a
matter of policy was preferable to a system where most detention standards were
determined as a matter of law.
One view held that the current state of international law on detention
was generally acceptable. By this view, Common Article 3’s brevity and
generality are strengths. For example, it would be infeasible and unadvisable,
according to this approach, to try to list all possible types of inhumane
treatment. Moreover, pursuant to this line of argument, to the extent that
Common Article 3 is sparse, policy can help provide greater detail. Those holding
this view observed that the United States has high policy standards on
detention. Rather than focusing on developing new legal rules, increased
attention should be, for these participants, placed on enforcing the laws that do
exist, with greater attention being paid to violations by NSAGs. A policy
focus also provides flexibility, allowing States to adapt their detention
approaches to the exigencies of a variety of conflicts around the globe.
Additionally, this view held that, if law becomes the dominant language for
making detention decisions, there is a risk that the governmental focus would be
on what States could do, not on what they should do.
Other participants strongly disagreed. They worried that basing practice
largely on policy rather than law could render detention operations
susceptible to frequent, difficult-to-predict and potentially significant changes;
create illogical or impracticable inconsistencies (for example, disparate practices
between coalition partners); set a bad example for other States; and lead to a
continued, or increased, resort to courts by civil society actors and detainees
in an attempt to discern and contest the parameters concerning the legality
of detention. They also believed that singling out particular rules or policies
from a complex, disparately interpreted and applied set of normative
frameworks, whether by analogy from IHL rules applicable in an IAC or as a
matter of policy, would tend to facilitate a government’s ability to selectively
choose the parts of law that permitted their acts and not apply rules that
restricted them. In the eyes of these participants, selectivity risked upsetting
IHL’s balance between military necessity and humanity. In response to
States’ reluctance to spell out their beliefs about what IHL says, a number of
participants expressed a desire for governmental actors to offer explicit, clear
statements as to their understanding of existing law.
The role of IHRL in filling perceived “gaps” in IHL resurfaced in a
number of discussions. Several commentators maintained that if IHRL does or
should fill those gaps, the resulting legal regime might be more stringent than
one in which there were clear IHL rules regulating all aspects of detention in
relation to a NIAC. Moreover, it was asserted that notwithstanding its
position on the extraterritorial application of IHRL, U.S. respect for that body
of law was important in part because many U.S. partners recognize the
application of IHRL in relation to NIACs with an extraterritorial element and
because a narrow interpretation of IHRL may undercut the objective and
purpose of that legal framework. In terms of the future of the law, the idea
of a bifurcation in IHL (“regular NIACs” v. “extraterritorial NIACs”),
wherein different legal rules would apply to each, was criticized by some
participants, who stated that the substantive rules of IHL should not be
meaningfully different in these two types of NIACs.
A number of participants expressed a desire for greater discussion of and
clarity around grounds and procedures for security detention. Caution was
voiced on different occasions against an automatic assumption that domestic
criminal proceedings would necessarily provide more protection to
individuals than would security detention. There was also concern that the
international community is allowing legal interpretations adopted in certain
purportedly unconventional contexts—including NIACs with extraterritorial
elements—to shape how the rules governing detention are interpreted or
developed in other contexts, without sufficient consideration of the benefits
and costs of doing so.
A recurring theme was the growing complexity that NIACs posed,
creating legal, policy and operational challenges for detention. Alongside IHL,
there is an increasingly elaborate framework of soft law, domestic law and
IRHL, as well as policy considerations. In addition to the lack of clarity in
the law specifically applicable to detention, dilemmas regarding the
interpretation of other aspects of IHL touch on detention, such as the end of
hostilities. A number of participants noted that IHL is a body of law meant to
be accessible, realistic and practical—rules that eighteen-year-old service
members can apply and that can be carried out by armed groups. Yet,
because of these various factors, there are multiple layers of ambiguity and the
rules regulating detention in relation to NIACs are often unclear or disputed.
4. In addition, it may be relevant to assess other bodies of law, such as jus ad bellum, which governs the resort to the use of force in international relations, and international criminal law, to determine what body of law applies and how to pursure accountability, respectively .
5. See, e.g., Mike Schmitt , Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance , 50 VIRGINIA JOURNAL OF INTERNATIONAL LAW 795 ( 2010 ) ; YORAM DINSTEIN, THE CONDUCT OF HOSTILITIES UNDER THE LAW OF INTERNATIONAL ARMED CONFLICT 5 (2d ed. 2009 ).
6. GCIV, supra note 2, art. 3; Protocol Additional to the Geneva Conventions of 12 August 1949 , and Relating to the Protection of Victims of International Armed Conflicts art . 3, June 8 , 1977 , 1125 U.N.T.S. 3 .
7. APII, supra note 2, art. 1.
8. CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005 ) (identifying 148 of its 161 rules as being applicable to NIACs as well as IACs) [hereinafter ICRC CIHL Study] . To read an initial response to the ICRC's customary law study, see, for example, John B . Bellinger, III & William J. Haynes , II, 89 INTERNATIONAL REVIEW OF THE RED CROSS 443 ( 2007 ), https://www.icrc.org/ eng/assets/files/other/irrc_866_bellinger.pdf.
9. See, e.g., International Covenant on Civil and Political Rights art. 9 , Dec . 19 , 1966 , 999 U.N.T.S. 171 .
12. In this regard, a resolution from the 32nd International Conference of the Red Cross and Red Crescent was specifically mentioned . International Committee of the Red Cross, Strengthening International Humanitarian Law Protecting Persons Deprived of their Liberty: Resolution ( 2015 ).
13. National Defense Authorization Act for Fiscal Year 2012 , Pub . L. No. 112 − 81 , § 1021 , 125 Stat. 1298 , 1562 ( 2011 ) (codified at 10 U .S.C. § 801 note ( 2012 )), http://www.gpo.gov/fdsys/pkg/PLAW-112publ81/pdf/PLAW-112publ81.pdf.
14. Authorization for Use of Military Force , Pub. L. No. 107 - 40 , 115 Stat. 224 ( 2001 ).
15. The 2001 AUMF does not explicitly provide the authority to detain individuals; rather, it explicitly authorizes the president to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. U.S. courts have upheld the legality of detention of individuals who were considered members of al Qaeda or associated forces under the 2001 AUMF . The 2012 NDAA provided
23. See , e.g., The Copenhagen Process on the Handling of Detainees in International Military Operations, The Copenhagen Process: Principles and Guidelines ( 2012 ), http://um.dk/en/~/media/UM/English-site/Documents/Politics-and -diplomacy/Copenhangen%20Process%20Principles%20and%20Guidelines.pdf [hereinafter Copenhagen Principles and Guidelines]; see also DOD LOW MANUAL , supra note 21.
24. GCIV, supra note 2, art. 78 .
28. ICRC CIHL Study, supra note 8. It should be noted, however, that AP II has been interpreted to impose a higher threshold of application than Common Article 3 . See, e.g., Jelena Pejic , The Protective Scope of Common Article 3: More Than Meets the Eye, 93 INTERNATIONAL REVIEW OF THE RED CROSS 1, 2 n.1 ( 2011 ).
29. Copenhagen Principles and Guidelines, supra note 23.
30. United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules ), G.A. Res . 70 /175 (Jan. 8, 2016 ).
31. UNHRC General Comment 35, supra note 19.
32. For more background on this view, see INTERNATIONAL COMMITTEE OF THE RED CROSS, STRENGTHENING INTERNATIONAL HUMANITARIAN LAW PROTECTING PERSONS DEPRIVED OF THEIR LIBERTY ( 2015 ), https://www.icrc.org/en/download/file/6588/ background-document -all-states-compliance-apr-2015.pdf; see also INTERNATIONAL COMMOTTEE OF THE RED CROSS INTERNMENT IN ARMED CONFLICT: BASIC RULES AND CHALLENGES, ( 2014 ), https://www.icrc.org/en/document/internment-armed -conflict-basicrules-and-challenges.
36. Declaration of Daniel Fried, Special Envoy for the Closure of the Guantanamo Bay Detention Facility , U.S. Department of State (Nov. 25, 2009 ), https://www.state.gov/documents/organization/153570.pdf.
39. See National Defense Authorization Act for Fiscal Year 2012 , supra note 13, § 1021 ( b)(1).
40. See , e.g., Barhoumi v . Obama , 609 F. 3d 416 (D.C. Cir . 2010 ); Hamlily v . Obama , 616 F. Supp . 2d 63 (D.D .C. 2009 ); Gherebi v . Obama , 609 F. Supp . 2d 43 (D.D .C. 2009 ).
41. For information on the PBRs, see U.S. DEPARTMENT OF DEFENSE, PERIODIC REVIEW SECRETARIAT, THE PERIODIC REVIEW BOARD , http://www.prs.mil/About-thePRB/ (last visited June 28, 2017 ).
42. Mohammed v. Ministry of Defence,  EWHC (QB) 1369 [hereinafter Mohammed 2014]; Mohammed 2015 , supra note 18.
43. Mohammed 2014 , supra note 42, ¶¶ 236 , 245 . On the equality of belligerents, see, for example, Adam Roberts, The Equal Application of the Laws of War: A Principle under Pressure, 90 INTERNATIONAL REVIEW OF THE RED CROSS 952 ( 2008 ).
47. Arms Trade Treaty art. 6 ( 3 ), Apr. 2 , 2013 , 52 INTERNATIONAL LEGAL MATERIALS 988 (entered into force Dec . 24 , 2014 ).
48. Id . art 7.
49. Military and Paramilitary Activities in and against Nicaragua (Nicar . v. U.S), 1986 I.C.J. 14 , ¶ 115 (June 27) [hereinafter Nicaragua].
50. Articles on Responsibility of States for Internationally Wrongful Acts art. 8, Report of the International Law Commission, 53d Sess ., Apr . 23 -June 1, July 2-Aug. 10 , 2001 , U.N. Doc . A/56/10, GAOR 56th Sess., Supp . No. 10 ( 2001 ), reprinted in  2 YEARBOOK OF THE INTERNATIONAL LAW COMMISSION 32 , U.N. Doc . A/CN.4/SER.A/ 2001/Add.1 (Part 2) (“Conduct directed or controlled by a State”).
51. Id . art. 16 (“ Aid or assistance in the commission of an internationally wrongful act”).