'The end of active hostilities': the obligation to release conflict internees under international law.

• Author: Scholdan, Bettina
• Position: I. Introduction through II. Which Conflict? Which Authority to Detain?, p. 99-132

1. INTRODUCTION II. WHICH CONFLICT? WHICH AUTHORITY TO DETAIN? A. The Obligation to Release and the Temporal Scope of International Humanitarian Law B. Transnational Armed Conflict: A Contested Model C. The Authority to Detain in Armed Conflict III. GUANTANAMO AND THE INDEFINITE DETENTION CONUNDRUM A. The AUMF, Hamdi, and NDAA 2012 as Legal Basis for Internment B. An Unsatisfactory Solution: Preventing Indefinite Detention through a Hybrid Model IV. THE OBLIGATION TO RELEASE UNDER IHL A. The Obligation to Release in International Armed Conflict B. Obligation to Release in Non-International Armed Conflict C. The Obligation to Release under Hamdi v. Rumsfeld V. THE END OF HOSTILITIES IN NON-INTERNATIONAL ARMED CONFLICT A. The Pitfalls of Fact-based Conflict Classification B. Decrease in Intensity and Fragmentation of Armed Group C. Non-International Armed Conflict with a Foreign Support Force D. When Will Hostilities in Afghanistan End? VI. DOES IHL ALLOW INDEFINITE DETENTION? VII. CONCLUSION I. INTRODUCTION

   In August 2014, the United States, upon request of the Iraqi government, and with support of a growing coalition of Western and Arab states, launched air strikes on the Islamic State in Iraq and Syria, reviving a conflict that had ended with the withdrawal of all United States troops in 2011. The Obama administration argued--mainly for domestic reasons--that the Islamic State was a successor organization of Al Qaeda, raising concerns that the "Forever War" would indeed never end. (1) The start of this operation coincided with the drawdown of troops and the end of detention operations in Afghanistan. (2) While that withdrawal anticipated the end of combat operations there, and many hoped for a declaration of the end of hostilities with regard to the conflict against the Taliban by President Obama, the rhetoric around the emergence of IS suggested the "conflict" against Al Qaeda, whether in Afghanistan, Iraq, or Syria, was not to end anytime soon. (3) Since, doubts have emerged about whether the conflict against the Taliban has indeed ended, as the United States continues to support Afghan operations through air strikes and Special Forces advisors. (4) In October 2015, Obama announced a halt to the drawdown of troops from Afghanistan, given the deteriorating security situation, 5 and ultimately decided to keep 5.500 troops in the country beyond the end of 2016. (6)

   Both the Bush and the Obama administrations have argued they are in an armed conflict against Al Qaeda and associated forces independent of the conflict in Afghanistan. (7) The 2001 Authorization for Use of Military Force (AUMF 2001) authorizes operations against those responsible for the attacks of September 11 and those harboring them, as well as to prevent further attacks by "such nations, organizations, and persons." (8) The lack of geographical limitation in the AUMF 2001 contributes to a lack of clarity over which hostilities have to end, against whom, and where, before the government has an obligation to release detainees. (9) Obama has not suggested that the operation against IS would change his intention to close Guantanamo. But it is likely his administration would want to rely on a continuation of hostilities with some variant of Al Qaeda to claim continued detention authority for those individuals at Guantanamo it does not want to, or practically cannot release. (10) Without ground troops, the United States is unlikely to capture many detainees in the conflict against IS; yet, it already held Umm Sayyaf, the wife of an IS leader, since her capture during a Special Forces raid on May 15, 2015, in military detention until she was transferred to Iraqi-Kurdish authorities on August 6, 2015. (11) U.S. allies may also be tempted to borrow from the U.S. blueprint for detention authorities for extraterritorial non-international armed conflicts developed in the past years.

   Guantanamo itself is an unlikely model for a new site of detention; yet, the legal rationale for status-based detention of so-called "unprivileged belligerents" has been integrated into U.S. military doctrine. (12) While contested as a proper interpretation of detention authorities in a non-international armed conflict, (13) it may make its way into a number of protracted conflicts. The legal framework for detention in Guantanamo has entangled the law of international armed conflict and non-international armed conflict in a way that downplays the protective and strengthens the enabling aspects of international humanitarian law (IHL). (14) The experience with Guantanamo shows that status-based detention until the end of hostilities in non-international armed conflict is highly problematic for policy reasons and, as this article argues, as a matter of international law. The complexity of determining the end of hostilities in a non-international armed conflict compounds these concerns. The Obama administration has confused the debate by declaring the end of combat operations in Afghanistan, while maintaining that the law of armed conflict continues to apply to its operations against Al Qaeda and the Taliban. (15) It stated in federal court that hostilities against the Taliban continue, opposing a habeas petition by a Guantanamo detainee who argued the end of combat operations in Afghanistan and Obama's declarations that the war in Afghanistan was over compelled his release. (16)

   This article discusses how to determine the "end of active hostilities," which limits, according to Hamdi v. Rumsfeld, the detention authority over so-called "enemy combatants" captured on the battlefield in Afghanistan. (17) Did it end on January 1, 2015, the official start of Operation Resolute Support in Afghanistan? Will it only end with the withdrawal of all U.S. forces from Afghanistan? Does it matter whether Congress repeals the AUMF 2001 or not? If hostilities have not ended, how long can the government rely on the "law of war" to hold internees at Guantanamo?

   In the United States, the debate has long centered on the repeal of the domestic authorization for the use of force under the AUMF 2001 and the determination by the President that the conflict against either of those groups have ended. (18) Both are seen to end authorities under the "law of war," (19) and thus the end of the authority to detain individuals in relation with that conflict. (20) International law, the source of the "laws of war," now receives increased attention, but existing literature has scratched only at the surface of the notion of "end of hostilities" in a non-international armed conflict. (21) Most commentary, and indeed the U.S. government, appears now to be in agreement that the end of hostilities requires a factual determination of the situation on the ground. (22) While courts and experts have determined whether a non-international armed conflict existed at a particular moment in time, no precedent has yet addressed the question of the end of a non-international armed conflict and its effect on IHL rules on targeting and detention. (23) This piece discusses the doctrinal and practical implications of the determination of the end of non-international armed conflict, including conflicts where a foreign force supports a host government against a local insurgency. While its focus lies on the obligation to release detainees held in relation to such an armed conflict, it also highlights the challenges to the framework of IHL as a whole.

   Part I outlines key controversies in the current framework of detention authority in non-international armed conflict, and situates the article's argument in these debates. Part II discusses how the legal concepts developed by the Bush and Obama administration have effectively neutralized existing obligations to release internees at Guantanamo. Part III...