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

• Author: Scholdan, Bettina
• Position: III. Guantanamo and the Indefinite Detention Conundrum through IV. The Obligation to Release Under IHL B. Obligation to Release in Non-International Armed Conflict, p. 132-168

3. GUANTANAMO AND THE INDEFINITE DETENTION CONUNDRUM

   1. The AUMF, Hamdi, and NDAA 2012 as Legal Basis for Internment

      States regulate internment--or preventative security detention--related to an internal armed conflict through their domestic laws. (135) The United States has referred to the AUMF as domestic legal basis, finding the authority to intern was implied in the authorization to use military force. (136) The AUMF 2001, however, at most presumes internment, and is not sufficiently detailed to provide a basis for lawful detention in accordance to the principle of legality discussed above. (137) The plurality in Hamdi v. Rumsfeld thought this was unproblematic: The AUMF authorized all "necessary and appropriate force," which, the Court found, included the authority to detain inherent in the laws of war. (138) Consequently, the Court held that persons captured on the battlefield, including U.S. citizens, may be detained "for the duration of the relevant conflict" to "prevent their return to the battlefield." (139) This may have been the correct understanding of the law for a person fighting on behalf of government forces in an international armed conflict, such as Yasir Hamdi, who fought for the Taliban and was captured in late 2001, during the phase of international armed conflict in Afghanistan. (140) U.S. courts have found that customary IHL allows for the detention without trial of so-called "unlawful combatants", now called "unprivileged belligerents," at least until the end of hostilities. (141)

      The Court, however, did not differentiate between the different types of detention authorities under international law. It used one treaty provision--Article 118 GC III--as the only possible reading of the detention authority inherent in the AUMF 2001, no matter the status of the individual detainee. (142) As explained below, this does not reflect the law of international armed conflict: prisoners of war may be detained until the end of active hostilities (Third Geneva Convention), and other persons may be interned as long as their internment is absolutely necessary for security reasons until at the latest the end of active hostilities (Fourth Geneva Convention). (143) Even less so does it reflect State practice of internment in non-international armed conflict.

      In the NDAA 2012, Congress affirmed the Obama's administration's interpretation of detention authority under the AUMF 2001. (144) The statute raises at least as many questions as it answers. Its provisions purport to limit Executive detention authority with reference to the laws of war. (145) At the same time, it codifies concepts whose origin in the law of war is widely contested, e.g. the notion of "associated forces" and "substantial support" to terrorist groups, introduced by the Executive to expand the categories of persons who may be interned under the AUMF 2001. (146) Its formulation of "[d]etention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force" provides no safeguards against indefinite detention: it is by no means clear which military operations against which actor the AUMF 2001 authorizes, and not all of those military operations are necessarily governed by IHL. (147)

      The recent debate on the source of the president's authority to use force against the Islamic State illustrates this difficulty. (148) The administration's reliance on the AUMF 2001 for those military operations draws to a considerable extent on domestic political expediency, rather than the classification of the relationship between a State party to a conflict and a non-state actor which IHL requires. (149) The debate about the AUMF confuses the need for a Congressional authorization of certain types of military operations under the U.S. Constitution with the requirement of a lawful basis for detention in armed conflict. As discussed in Part I.C.1, in international armed conflict, the Third and Fourth Geneva Convention may provide such authorization, (150) and grounds and procedures need not necessarily be detailed in a domestic statute. In non-international armed conflict, the only possible source for detention authority is domestic law; simple reference or legislative affirmation of analogies drawn from concepts arising out of the relationship between States in international armed conflict cannot replace an authority to detain with sufficient clarity. (151) The U.S. government has insisted that a law authorizing open-ended security detention in armed conflict must be vague in order not to interfere with the Executive's discretion in interpreting its own authority to detain. (152) This stands against the requirement that laws authorizing internment must meet the standard of legality in order not to be arbitrary.

      Although, as submitted, the Hamdi court erred in accepting status-based detention authority independent of the type of conflict, the U.S. Supreme Court was correct in setting the outer limit of this type of internment with the "end of active hostilities." (153) As Part III shows, IHL, seeking to prevent the abuse of government authority in war time, restricts the ability of States to manipulate the determination of the end of hostilities and thus the moment when the obligation to release attaches. The obligation to release depends on the legal basis under which an individual is held. Where a country, as does the United States, refers to the Third Geneva Convention in analogy to claim an authority to detain in non-international armed conflict, it must as a minimum accept the restraining aspects of this framework as well. (154)

   2. An Unsatisfactory Solution: Preventing Indefinite Detention through a Hybrid Model

      Most scholarship on the end of the conflict in the United States has accepted the notion of "law of war detention" put forth in Hamdi v. Rumsfeld. (155) The Obama administration, the habeas jurisprudence after Boumediene and the NDAA 2012, which codified that jurisprudence, have expanded the concept of status-based detention until the end of hostilities to groups that were once associated with Al Qaeda and those substantially supporting them. (156) The D.C. Circuit ruling in Kiyemba v. Obama has further cemented the idea that a determination that detention was no longer necessary to contain the threat an individual poses need not result in release of that individual. (157) This has made the determination of the "end of hostilities" the linchpin of the question whether and when the U.S. government would have an obligation to release detainees currently held at Guantanamo.

      Some believe that under Hamdi, the end of hostilities in Afghanistan would "create a presumption of repatriation" of Taliban fighters, (158) which "may be overcome on an individual basis by a finding that a released and repatriated fighter will return to the battle." (159) But once hostilities have ended, there is, as a matter of law, no "battle" to which a released fighter can return. (160) Another author has argued that the end of combat operations in Afghanistan will have "little" bearing under international law on the continuation of a transnational armed conflict, that, in any case, the Taliban and Al Qaeda will continue to fight against the United States as troops draw down, and that the President has not announced the termination of hostilities. (161) Given the contested nature of the notion of a "transnational armed conflict," the first is itself hardly a tenable statement, (162) the second relies on the very analysis of non-international armed conflict it rejects, (163) and the third is largely irrelevant under international law. (164)

      Some authors discuss the difficulty arising out of the lack of definite rules on security detention in the treaty law regulating non-international armed conflicts and, to some extent, in human rights law. (165) While one pair of authors draws the conclusion that non-international armed conflict treaty law allows continued detention after the end of hostilities, (166) another author correctly concludes that Additional Protocol II provides no authority to detain and, therefore, "can be read to stand at most for the proposition that the law of non-international armed conflict does not prohibit detention beyond the cessation of hostilities." (167) A third author found that authority to detain may continue under domestic law until the end of the "state of war," (168) i.e. the repeal of war time legislation authorized by Congress.

      Commentators who believe non-international armed conflict authorizes status-based detention until the end of hostilities struggle with the difficulty to prevent indefinite detention when it is not possible to determine the end of hostilities. They propose thus to end "detention authority over individual fighters when they no longer pose a threat to the security of the state." (169) One author reasons that the individual threat-based review of the Fourth Geneva...