Guantanamo habeas review: are the D.C. District Court's decisions consistent with IHL internment standards?

• Author: Olson, Laura M.
• Position: International humanitarian law

After the Supreme Court ruled in 2008 in Boumediene v. Bush that the detainees at the Guantanamo Bay detention facility are entitled to the privilege of habeas corpus to challenge the legality of their detention, the D.C. District Court started to take action on the hundreds of petitions filed. In these habeas proceedings, the court has faced the threshold legal question of the scope of the government's authority to detain pursuant to the Authorization for Use of Military Force as informed by the law of war. This article reviews how the court has delimited the permissible bounds of the government's detention authority, specifically focusing on whether the court's decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). This analysis seeks to assess whether the court's application of the Bush Administration's definition of "enemy combatant" or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

1. INTRODUCTION

   After the Supreme Court held in Rasul v. Bush that statutory habeas jurisdiction extended to Guantanamo, (1) those detained at the Guantanamo Bay detention facility filed hundreds of petitions. No action, however, was taken on the petitions until the Supreme Court ruled in 2008 in Boumediene v. Bush that Guantanamo detainees are "entitled to the privilege of habeas corpus to challenge the legality of their detention." (2) As of this writing, the D.C. District Court has ruled on thirty-five petitions, granting twenty-nine, under both the Bush and Obama Administrations. (3)

   In these habeas proceedings, the D.C. District Court has faced the threshold legal question: "what is the scope of the government's authority to detain these, and other, detainees pursuant to the Authorization for Use of Military Force ..., as informed by the law of war?" (4) This article reviews how the District Court has delimited "'[t]he permissible bounds' of the government's detention authority 'as subsequent cases are presented to them.'" (5) Specifically, the focus is on whether the D.C. District Court's decisions are consistent with the internment standards under the law of war, international humanitarian law (IHL). As internment, (6) the deprivation of a person's liberty without criminal charge as a preventive security measure, is an extreme measure even in armed conflict, IHL set limits on its use. This analysis seeks to assess whether application by the D.C. District Court of the Bush Administration's definition of "enemy combatant" or the new definition provided by the Obama Administration is broader or narrower than the IHL standards.

   The applicable conventional IHL rules vary depending upon whether an armed conflict is international or non-international. There exist fewer rules applicable to non-international armed conflict and, in contrast to IHL applicable to international armed conflict, there are no conventional IHL rules providing a basis for internment in non-international armed conflicts. The Supreme Court in Hamdan v. Rumsfeld concluded that, at the very least, Article 3 common to the four Geneva Conventions applies to the U.S. conflict with al-Qaeda because it is a "conflict not of an international character." (7) Many of the individuals currently held at Guantanamo were detained in relation to that conflict. Thus, much of the discussion on internment in this article concerns the extent to which analogous application of IHL internment standards applicable to international armed conflict is appropriate in non-international armed conflict and, if so, in which form. (8)

   The first section of this article provides background by briefly describing the bases for internment under conventional IHL and explaining how IHL of international armed conflict could be analogously applied to non-international armed conflicts in order to address internment. The following section discusses the executive branch's practice of internment at Guantanamo, assessing both the asserted legal bases for internment and the various internment standards in relation to IHL. The third section reviews the D.C. District Court's interpretation of the executive's internment standards to see if the court's decisions are consistent with IHL internment standards. This review and accompanying analysis modestly seeks to present some initial reflections on these issues and by no means intends to be exhaustive.

2. INTERNMENT DURING ARMED CONFLICT UNDER IHL

   In peacetime, as during armed conflict, persons may be detained awaiting trial for a crime or based upon conviction for a crime. For the individual non-state actor, participation in the conflict generally constitutes a crime under the domestic law of the state affected by the conflict. This section focuses on that which is more unique to armed conflicts--internment of enemies without criminal charge as a preventive security measure, specifically the internment of prisoners of war and, under certain circumstances, civilians. This section describes the possible bases under IHL for this particular form of deprivation of liberty in international and non-international armed conflict.

   1. IHL Bases for Internment: When to Hold and When to Release (9)

      IHL provides grounds for possible internment in international armed conflict under certain conditions for specific categories of protected persons. The First and Second Geneva Conventions regulate the retention of medical and religious personnel "only in so far as the state of health, the spiritual needs and the number of prisoners of war require." (10) The Third Geneva Convention stipulates that "[t]he Detaining Power may subject prisoners of war to internment." (11) Concerning civilians, the Fourth Geneva Convention provides that--as to aliens in the territory of a party to the conflict--"[t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary." (12) In an occupied territory, "[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment." (13)

      In contrast, conventional IHL applicable to non-international armed conflict provides no specific grounds for internment. Yet, conventional IHL contemplates that internment occurs in non-international armed conflict, as demonstrated by the references to internment found in Articles 5 and 6 of the Second Additional Protocol to the Geneva Conventions, (14) which regulate--to a certain extent--internment. Article 3 common to the four Geneva Conventions makes no reference to internment.

      In order to explain the absence of a legal basis for internment in IHL applicable to non-international armed conflict, a parallel will be drawn to the issue of the legality of non-state actors taking up arms against the state--that is, engaging in armed conflict. This is not a matter regulated by IHL, but by domestic law, (15) and it is hard to imagine domestic legislation doing anything but prohibiting such action. (16) Thus, while a non-state actor by the mere fact of engaging in armed conflict violates domestic law, it does not violate IHL. IHL addresses the reality that non-international armed conflict exists--and that internment will occur during it--"by regulating it to ensure a minimum of humanity in this ... illegal situation." (17)

      In addition to providing guidance on when internment may occur or begin, IHL applicable to international armed conflict also stipulates when the captivity must end--further clarifying the boundaries of permissible internment. Retention of medical and religious personnel must cease if prisoners of war are not in need. (18) According to the Third Geneva Convention, repatriation of prisoners of war takes place due to medical reasons during the conflict, (19) and release and repatriation for all, without delay, must occur after the cessation of active hostilities. (20) Unlike prisoners of war (with no medical reason requiring release), civilian internees may not necessarily be interned until the end of the conflict. The Fourth Geneva Convention provides that a civilian must be released "as soon as the reasons which necessitated his internment no longer exist"; (21) this may be during the conflict. If, however, civilians remain interned for the duration of the conflict, "[i]nternment shall cease as soon as possible after the close of hostilities." (22)

      Captured combatants, simply because they are opposing combatants, are interned in order to prevent them from returning to the battlefield. Except when doubt arises as to whether the person is entitled to prisoner-of-war status, (23) there is no need for an individual review, as the internment is not based on any particular individual characteristic but on mere formal membership in the state's armed forces (or formally accompanying the armed forces) and would run counter to the IHL objective for interning of prisoners of war. (24) As the reasoning behind the basis for internment of prisoners of war under IHL is unique, the reasoning does not extend to interned civilians in an international armed conflict or persons interned in a non-international armed conflict.

      Thus, generally only the basis for interning a civilian requires an assessment, (25) as civilians--unlike combatants who are captured and become prisoners of war--may only be interned if and for as long as they pose an imperative security threat. The Fourth Geneva Convention applicable to international armed conflicts provides internment review procedures applicable to civilian internees, giving some detail regarding the type of body and timing of review. (26) The First Additional Protocol to the Geneva Conventions introduces an additional safeguard to the process. (27) Finally, it should be noted that unlawful confinement is a grave breach of...