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

• Author: Scholdan, Bettina
• Position: IV. The Obligation to Release Under IHL C. The Obligation to Release Under Hamdi v. Rumsfield through VII. Conclusion, with footnotes, p. 168-208

3. The Obligation to Release under Hamdi v. Rumsfeld

   For the U.S. constitutional practice on the obligation to release, most relevant is the Supreme Court's holding in Hamdi v. Rumsfeld. (308) There, writing for a plurality, Justice O'Connor found in Article (118) GC III "a clearly established principle of the law of war that detention may last no longer than active hostilities." (309) In limiting the authority to detain with the "duration of the relevant conflict," and more precisely, the end of "active hostilities," the Hamdi plurality rejected the pre-1949 understanding of the obligation to release--an understanding of which the plurality was certainly aware, as Justice Thomas discussed in his dissent. (310) Hamdi presents an important step forward, as it acknowledged that it is the factual termination of hostilities, not the end of the "state of war," that ends authorities under the law of war. (311)

   Ludecke v. Watkins and In re Territo, two cases decided before 1949, no longer reflect a correct understanding of the termination of war time powers under international law. (312) The 1929 Geneva Convention on the Treatment of Prisoners of War, which applied during World War II, encouraged release at the end of hostilities, but imposed an obligation to release prisoners of war only at the conclusion of a peace agreement. (313) This gave the Allied powers a pretext to delay release and repatriation of millions of prisoners of war after the armistice with Italy in 1943 and the surrender of Germany in 1945. (314) The court deciding in 1946 on the petition to release Territo, an American-Italian prisoner of war, relied on the language of the 1929 Geneva Convention, and pointed to the lack of a peace agreement as a basis to reject the habeas petition. (315) The report of the Final Conference recognizes that the language of draft Article 108 (later 118) "profoundly modifies" the regime under the 1929 Geneva Conference. (316) Any authority relying on the 1949 Geneva Conventions does not continue until the domestic statute authorizing general war powers is repealed. (317) It exists as long as the factual conditions for the applicability of IHL are met. (318) Neither is the termination of such authorities under international law a "political act," as the government asserted and the D.C. Circuit Court of Appeals accepted, in Al-Bihani. (319) Governments today may no longer delay release until the signing of a peace agreement or a domestic legal act where hostilities have ended. The "state of war," i.e. the repeal or not of the AUMF 2001, is irrelevant for the authority to detain under IHL.

   Judge Lamberth, in his recent decision on Guantanamo detainee Al Warafi's habeas petition, correctly interpreted Hamdi to direct courts to "examine ... whether active hostilities continue," (320) and found Hamdi and Boumediene overruled any contradictory language on the courts' power to review wartime detention derived from Ludecke and preceding case law. (321) He specifically rejected the government's contention that courts had to defer to the Executive's viewpoint on the endpoint of hostilities even if the determination of the end of active hostilities was not considered a political question barring jurisdiction: (322) "The Court's responsibility here is likewise to determine the existence or nonexistence of active hostilities using all relevant evidence." (323) This understanding brings the U.S. domestic jurisprudence more in line with post-1949 IHL and the ICTY's understanding that courts can engage in classification of armed conflict. (324) Judge Lamberth's concludes then, without further discussion, that "U.S. involvement in the fighting in Afghanistan, against al Qaeda and Taliban forces alike, has not stopped" and detention authority under the AUMF 2001 therefore continues. (325) This summary conclusion avoids precisely the analysis of what constitutes "active hostilities" for the purposes of "law-of-war" detention authority, a question discussed in Part IV of this article.

   To summarize, after "cessation of hostilities" and after the "general close of military operations," the Third and Fourth Geneva Convention only apply to ensure continued protection of those who remain interned or detained or otherwise in the hands of an enemy power. (326) The same is valid for Additional Protocol I and Additional Protocol II. (327) Hence, none of the sources of IHL can serve as a legal basis for internment after hostilities have ended. In addition, the Third and Fourth Geneva Conventions impose an obligation to release prisoners of war and internees at the latest where hostilities have ended without an "immediate expectation of resumption." (328)

   Treaty provisions in non-international armed conflict do not provide for an affirmative authority to detain and, therefore, do not spell out a positive obligation to release. (329) Most cease-fire agreements in non-international armed conflicts, however, contain detailed Annexes about the release of detainees, indicating that State parties are willing to forego criminal prosecution for offenses not amounting to war crimes when a conflict comes to an end. (330) While most peace agreements as such neither ended fighting nor led to a speedy release of all detainees, the actual end of hostilities did. (331) The following section discusses how to determine the end of hostilities in a non-international armed conflict.

   5. THE END OF HOSTILITIES IN NON-INTERNATIONAL ARMED CONFLICT

1. The Pitfalls of Fact-based Conflict Classification

   Legal classification of armed conflict is one of the thorniest issues arising out of post-9/11 military operations. To determine the existence of a non-international armed conflict, and hence the applicability of IHL, the factual test developed for Common Article 3 and refined by the International Tribunal for the former Yugoslavia, involves a highly complex balancing of the need for the more permissible framework of IHL and the need for its protective force. The fact-based approach was developed in the face of often strong resistance by governments to accept the existence of an armed conflict, and hence applicability of IHL. (332) This question gained urgency, for the inverse reasons, in the course of counterterrorism operations against Al Qaeda after September 11th. IHL transformed from a protective legal framework into a tool that gave States greater leeway to use lethal force and detention against non-state actors than what would be allowed under human rights law. (333)

   While IHL grants a larger margin of discretion to armed actors in their use of force and restrictive measures, it has two distinct advantages compared to human rights law: its protections are not derogable in a state of emergency, and its provisions constrain State and non-state parties to the conflict alike. (334) Any proposal of classification needs to account for the reality of government decision-making in the face of armed violence, while limiting the assertion of overbroad powers and ensuring protection of those affected by violence, including through a real threat of international prosecution for war crimes. (335) The tension between these goals becomes particularly pronounced at the beginning and end of a non-international armed conflict, and during low-intensity phases of non-international armed conflict. (336) States should not be able to trigger or maintain the more permissive framework of IHL by engaging in unilateral armed action against individuals or a group that do not meet the definition of a non-state party to a conflict. (337) This has to be distinguished from situations where IHL is indeed necessary to constrain military operations, such as the intensive bombing campaign launched in 2015 by Saudi-Arabia against armed groups in Yemen. (338) International observers will ask whether law enforcement methods are unable to meet the threat, making the use of military force, and hence the application of IHL, necessary. (339) At a certain moment, however, necessity considerations will give way to the need for the protective force of IHL, where use of force is of such intensity and duration that human rights law no longer provides adequate regulation and protection.

   Academic commentators have noted that it was notoriously difficult to determine the end of a non-international armed conflict. (340) This is even more complex in a situation as in Afghanistan, where a foreign government supporting the host government draws down its forces but the non-international armed conflict between the host government and the insurgency is likely to continue. (341) To determine rights and obligations at the end of active hostilities, based on criteria of intensity of violence and organized capacity of the non-state armed actor, raises numerous challenges to reach a proper balance between the protective and the permissive aspects of IHL. A threat-based model of security internment is thus better suited to take account of the ebbs and flows of confrontations between government and non-state actors.

2. Decrease in Intensity and Fragmentation of Armed Group

   Under the fact-based approach, two elements need to be present in order for IHL to apply to armed violence between a State and non-state actors: the violence has to reach a certain intensity of collective fighting ("hostilities"), and the non-state actor must have sufficient internal organization to plan and carry out military-style operations and to be able to ensure respect for IHL (organizational element). (342) Once both elements are present, IHL starts to apply. (343) In such circumstances, it is likely the government will see itself compelled to use military force rather than regular law enforcement methods. (344) The two criteria also imply that existence of a non-international armed conflict depends on the actual involvement in hostilities by the non-state actor. (345) Unfortunately, there is yet little jurisprudence to guide us on...