Detention Operations in Contemporary Conflicts: Four Challenges for The Geneva Conventions and Other Existing Law
Published online by Cambridge University Press: 27 February 2017
In September 2010, President Jakob Kellenberger of the International Committee for the Red Cross (ICRC) summarized the conclusions of a two-year, internal ICRC study of changes that have occurred in the nature of armed conflict since the signing of the Geneva Conventions in 1949, and he also suggested how international humanitarian law (IHL) should respond to those changes. In a previous address marking the sixtieth anniversary of the Geneva Conventions, Kellenberger had observed that in the place of traditional conflicts between state-sponsored armies on a battlefield, modern conflicts frequently involve nonstate actors, such as terrorist groups—a development that has blurred the line between civilians and combatants, and created challenges for IHL. The ICRC study concluded that IHL generally provides a suitable legal framework for regulating armed conflict.
- Research Article
- American Journal of International Law , Volume 105 , Issue 2 , April 2011 , pp. 201 - 243
- Copyright ©by the American Society of International Law,2011
1 Geneva Convention [I] for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114,75 UNTS 31Google Scholar ; Geneva Convention [II] for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12,1949,6 UST 3217,75 UNTS 85Google Scholar ; Geneva Convention [III] Relative to the Treatment of Prisoners of War, Aug. 12,1949,6 UST 3316,75 UNTS 135Google Scholar ; Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12,1949,6UST 3516,75 UNTS 287Google Scholar .
2 Jakob, Kellenberger, official Statement of ICRC: Strengthening Legal Protection for Victims of Armed Conflicts (Sept. 21, 2010)Google Scholar , at http://www.icrc.org/web/eng/siteeng0.nsf/html/ihl-development-statement-210910. The ICRC internal study has not been publicly released.
3 Jakob, Kellenberger, official Statement of ICRC: Sixty Years of the Geneva Conventions: Learning from the Past to Better Face the Future (Aug. 12, 2009)Google Scholar , at http://www.icrc.org/web/eng/siteengO.nsf/htmlall/genevaconventions-statement-president-120809.
4 Kellenberger, supra note 2.
5 See, e.g., Foreign Affairs Comm., Visit to Guantanamo Bay, 2006-07, H.C. 44, at 3 (UK) (concluding that Geneva Conventions “lack clarity and are out of date” and require updating to “deal more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants”); Anne-Marie Lizin, Report on Guantanamo Bay (OSCE Parliamentary Assembly) 13 (June 30,2006) (describing “legal haziness” surrounding application of Geneva Conventions to members of Al Qaeda).
6 See, e.g., Geoffrey, S. Corn & Eric, Talbot Jensen, Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-terror Combat Operations, 42 Isr. L. Rev. 46 (2009)Google Scholar (describing as “axiomatic” the fact that common Article 3 fails to provide sufficient guidance on “a wide array of battlefield conduct that does not implicate such treatment decisions”); Matthew, C. Waxman, Detention as Targeting: Standards of Certainty and Detention of Suspected Terrorists, 108 Colum. L. Rev. 1365, 1367-68 (2008)Google Scholar (discussing substantive and procedural legal gaps in IHL as applied to armed conflicts with terrorist organizations).
7 Kellenberger, supra note 2 (concluding that the “dearth of legal norms applicable in non-international armed conflicts” is a significant obstacle to “safeguarding the life, health and dignity of those who have been detained”).
8 This need for legal development is not surprising. See W. Michael, Reisman, Assessing Claims to Revise the Laws of War, 97 AJIL 82, 82 (2003)Google Scholar (explaining that “deliberative and measured” nature of the law means that it lags behind changing facts).
9 The question of which individuals may be detained is closely related to the issue of which individuals may be targeted for attack. In an effort to shed light on this matter, the ICRC recently completed a seven-year expert process to produce interpretive guidance on when civilians are “directly participating in hostilities.” Int’l Comm. Red Cross, Interpretative Guidance on The Notion of Direct Participation in Hostilities Under International Humanitarian Law (2009). Many participating experts disagreed with the ICRC on how to apply the concept to important groups and to individual functions in conflicts with nonstate actors—with the consequence that the ICRC was compelled to issue the guidance without the list of participating experts. See Michael, N. Schmitt, The Interpretative Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis, 1 Harv. Nat’l Sec. J. 5 (2010)Google Scholar (explaining difficulties with guidance from perspective of expert who worked on the study). We have chosen to focus on the detention questions discussed here because, taken together, they form a related set of issues that requires further attention from international law.
10 See John B., Bellinger III, Legal Issues Related to Armed Conflict with Non-state Groups, in Prisoners in War 251 (Sibylle, Scheipers ed., 2010)Google Scholar (responding to criticism that U.S. detention policy violates international law on these issues). The Obama administration has had to respond to similar criticisms. Harold, Hongju Koh, The Obama Administration and International Law, Remarks Made at the American Society of International Law (Mar. 25, 2010), at http://www.state.gOv/s/l/releases/remarks/139119.htm.Google Scholar
11 We wish to emphasize that international law relating to detention does contain certain rules that are clearly stated, such as the prohibitions on torture and on cruel, inhuman, and degrading treatment. But see H.M.G. Cabinet Office, Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees 3 (2010) (UK) (“[T]here is no agreed or exhaustive definition of what constitutes cruel, inhuman or degrading treatment or punishment.”). Our focus in this article is on the questions we have identified—where states would benefit from greater legal clarity and consensus.
12 See Thomas, Winkler, Acting Legal Advisor, Danish Ministry of Foreign Affairs, Address at the 31st Round Table on Current Issues of International Humanitarian Law (Sept. 5, 2008),Google Scholar at http://en.calameo.com/read/00000837926fb084b36c9 (describing rationale behind Copenhagen Process).
13 For example, in responding to a recommendation by the House of Commons Foreign Affairs Committee that the Geneva Conventions be updated, the British government said that “the Government continues to believe the best solution lies in better and more effective application of existing international humanitarian law.” Secretary of State for Foreign & Commonwealth Affairs, Response to Foreign Affairs Committee 3 (2007), available at http://www.fco.gov.uk/resources/en/pdf/7179755/2007_mar_guantanamo_bay; see also Ariane, Bernard, European Faults U.S. official for Remarks on Geneva Rules, N.Y. Times, Sept. 23,2006,Google Scholar at A4 (quoting European Union counterterrorism chief Gijs de Vries: “The opinion of Europe’s ministers is that respecting the rules, not bending them, is essential to our credibility and hence to our effectiveness in the fight against terrorism.”); Dan E., Stigall, Christopher L., Blakesley, & Chris, Jenks, Human Rights and Military Decisions: Counterinsurgency and Trends in the Law of International Armed Conflict, 30 U. PA. J.Int’l L. 1367, 1379(2008)Google Scholar (quoting Danish officials: “the challenge was not the elaboration of new rules, but to make the existing legal framework fully applicable in practice”).
14 See, e.g., Eminent, Jurists Panel on Terrorism, Counter-Terrorism, and Human Rights, International Commission of Jurists, Assessing Damage, Urging Action 20 (2009),Google Scholar available at http://ejp.icj.org/IMG/EJP-Report.pdf (“[H]uman rights law provides sufficient flexibility for States to adjust to security needs; States should rely upon this framework rather than seek to re-write the rule book.”); see also Kellenberger, supra note 2.
15 The insistence that implementation is the critical issue in IHL is a point that has been made for many years. See Theodor, Meron, on the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New Instrument, 77 AJIL 589,598 (1983)Google Scholar (“The principal difficulty regarding the application of international humanitarian law has been the refusal of states ‘to apply the conventions in situations where they clearly should be applied.’ “).
16 See Reisman, supra note 8, at 82-83 (describing inherent resistance to changes in legal arrangements even in the face of drastically changed factual realities).
17 See, e.g., Arturo Carrillo-Suárez, Hors de Logique, Contemporary Issues in International Humanitarian Law as Applied to Internal Armed Conflict, 15 Am. U. Int’l L. Rev. 1, 114-15 (1999) (describing positive humanitarian benefits that would accrue from implementing existing treatment protections applicable in noninternational armed conflict in Colombian civil war).
18 See, e.g., Brief for Respondent-Appellee at 49 n.25, Hamdan v. Rumsfeld, 548 U.S. 557(2006) (No. 05-184) (contesting appellant’s argument that common Article 3 of the Geneva Conventions constitutes customary international law binding in all conflicts); see also Geoffrey S. Corn, Hamdan, Lebanon, and the Regulation of Hostilities: The Need to Recognize a Hybrid Category of Armed Conflict, 40 Vand .J.Transnat’l L. 295, 323 (2007) (accusing Bush administration of “exploiting a seam” through manipulation of gaps).
19 Kellenberger, supra note 2 (noting lack of clear legal guidance available to detaining authorities).
20 See Thomas, M. Franck, the Power of Legitimacy Among Nations 52(1990)Google Scholar (“ [R] ules which are perceived to have a high degree of determinacy—that is, readily ascertainable normative content—would seem to have a better chance of actually regulating conduct in the real world than those which are less determinate.”).
21 Deborah, N. Pearlstein, Avoiding an International Law Fix for Terrorist Detention, 41 Creighton L. Rev. 663, 676 (2008)Google Scholar .
22 See, e.g., Geneva Convention III, supra note 1, Art. 2 (“[T]he present convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties . . . .”).Google Scholar
23 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 UNTS 3 [hereinafter Additional Protocol I].
24 Protocol Additional to die Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of Non-international Armed Conflicts, June 8, 1977, 1125 UNTS. 609 [hereinafter Additional Protocol II].
25 The Convention on Certain Conventional Weapons and its Protocols also apply to noninternational armed conflict. See Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Art. 1, Oct. 10, 1980, 1342 UNTS 137, 19 ILM 1524 (“This Convention and its annexed Protocols shall also apply... to situations referred to in Article 3 common to the Geneva Conventions of 12 August 1949.”) The prohibitions on weapons in these treaties do not address the detention questions that are the subject of this article.
26 See Michael J., Matheson, Continuity and Change in the Law of War: 1975-2005: Detainees and POWs, 38 Geo. Wash. Int’l L. Rev. 543, 547-48 (2006)Google Scholar (describing depth and breadth of this view). The U.S. Supreme Court held in Hamdan v. Rumsfeld, supra note 18, at 629-30, that common Article 3 applied as a matter of treaty law to the U.S. conflict with Al Qaeda. There is some question regarding whether this treaty interpretation is correct, given that that the text of common Article 3 limits application to conflicts “occurring in the territory of one of the High Contracting Parties.” See Int’l Comm. Red Cross, Geneva Convention [III] Relative to The Treatment of Prisoners of War: Commentary 37 (Jean S. Pictet gen. ed., 1960) (interpreting the term “one” to mean “within the confines of a single country”) [hereinafter Third Geneva Convention Commentary]. It is also in conflict with the interpretation of “international armed conflict” made by other municipal courts. See HCJ 769/02 Pub. Comm. Against Torture in Israel v. Gov’t of Israel, para. 21 , at http://elyonl.court.gov.il/eng/home/index.html (“Confronting the dangers of terrorism constitutes a part of the international law dealing with armed conflicts of international character.”).
27 See Additional Protocol II, supra note 24, Art. 1. Additional Protocol II is potentially applicable to the government of Afghanistan’s noninternational armed conflict with the Taliban because the Taliban exercises control over a portion of Afghan territory from which it conducts sustained and continuous military operations against the government. However, a conflict with a group like Al Qaeda is unlikely to fall within the ambit of Additional Protocol II because Al Qaeda does not control territory.
28 Although the United States signed Additional Protocol II, and President Reagan transmitted it to the Senate in 1987, it has not been approved by the Senate. The White House recently called upon the Senate to provide its advice and consent to Additional Protocol II. White House Fact Sheet, New Actions on Guantánamo and Detainee Policy (Mar. 7, 2011), at http://www.whitehouse.gov/the-press-office/2011/03/07/fact-sheet-new-actions-guantnamo-and-detainee-policy.
29 See Civilians Claims (Eri. v. Eth.), Eritrea’s Claims 15,16,23 & 27-32, Partial Award (Eritrea Ethiopia Claims Comm’n Dec. 17,2004), 44 ILM 601 (2005) (“The Commission views Article 75 of Protocol I as reflecting particularly important customary principles.”); 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law 299-383 (2005) (describing protections of Article 75 as customary international law); Hans-Peter Gasser, Protection of the Civilian Population, in The Handbook of Humanitarian Lawin Armed Conflicts 209, 233 (Dieter Flecked., 1995) (same); see also Hamdan v. Rumsfeld, supra note 18, at 633 (plurality) (stating that United States owes detainees in the conflict with Al Qaeda Article 75 protections as a matter of customary international law).
30 White House Fact Sheet, supra note 28. During the Reagan administration, the Department of Defense Law of War Working Group concluded that Article 75 was already part of customary international law in international armed conflicts. Memorandum from the Law of War Working Group to the Assistant General Counsel, office of the Secretary of Defense (May 9, 1986), cited in Matheson, supra note 26, at 546. The Legal Adviser’s office of the State Department agreed with that conclusion, and Deputy Legal Adviser Michael Matheson announced on behalf of the administration in 1987 that the fundamental guarantees contained in Article 75 were among those parts of Additional Protocol I that the United States believed “should be observed and in due course recognized as customary law.” Michael J. Matheson, Session one: The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 Am. u. j. Int’l L. & Pol’y 419, 422 (1987). Two decades later, Matheson argued that the provisions of Article 75 had, by then, come “to be widely accepted as part of customary law applicable in all armed conflicts.” Matheson, supra note 26, at 547. In its decision in Hamdan, supra note 18, at 633, a plurality of the U.S. Supreme Court also concluded that the trial protections set forth in Article 75 are customary international law.
Nevertheless, after many years of review and urging by the office of the Legal Adviser, the Bush administration was unable to arrive at an agreed position confirming the status of Article 75 as customary international law, or agreeing to apply it as a legal obligation in either international or noninternational armed conflicts. See John B. Bellinger III, For Obama, Vexing Detainee Decisions Loom (Apr. 14, 2010), at http://www.cfr.org/human-rights/obamavexing-detainee-decisions-loom/p21895 (explaining that eight years of review by both the Bush and Obama administrations have yet to produce an executive branch position on this issue); Julian E. Barnes, Internal Critics Seek a Softer Line; Bush Administration Moderates Push to Change Detention and Interrogation Policies Before Their Time’s Up, L.A. Times, Nov. 12, 2008, at A20 (noting disagreements within Bush administration on Article 75’s status as customary law). Difficulty in establishing general and consistent state practice required to arrive at the determination of customary law was a primary stumbling block. It appears these same difficulties explain why the Obama administration has not explicitly stated that Article 75 is customary international law. See John B., Bellinger III, Obama, Bush and the Geneva Conventions (Aug. 11,2010)Google Scholar , at http://shadow.foreignpolicy.eom/posts/2010/08/11/obama_bush_and_the_geneva_conventions (noting failure of Obama administration to commit to following Article 75 as a matter of law in conflict with Al Qaeda).
31 This is not to say that all of the treatment protections provided even by these instruments are models of clarity. The International Criminal Tribunal for the Former Yugoslavia was unwilling to permit criminal prosecutions to proceed for violations of the prohibition on “violence to life and person,” because the term was insufficiently precise to support prosecution under international law. Prosecutor v. Vasiljević, Judgment, Case No. IT-98-32-T, paras. 193-204 (Nov. 29, 2002); see also H.M.G. Cabinet Office, supra note 11 (noting lack of consensus on what constitutes “cruel, inhuman and degrading treatment”). Nevertheless, the United States’ decision to fully implement common Article 3 after the Supreme Court decision in Hamdan suggests that implementation was possible.
32 Lord Johan, Steyn, Guantanamo Bay: The Legal Black Hole, 27th F. A. Mann Lecture (Nov. 25, 2003),Google Scholar at http://www.statewatch.org/news/2003/nov/guantanamo.pdf. Both President Obama and his 2008 Republican opponent Senator John McCain agree with the assessment that fealty to IHL treatment protections would have been beneficial to the United States. See Interview by Bob, Schieffer with Senator, John McCain (Aug. 30, 2009), at http://www.huffingtonpost.com/2009/08/30/mccain-whacks-cheney-tort_n_272179.html Google Scholar (arguing that detainee interrogations during the Bush administration were conducted inconsistently with the Geneva Conventions, resulting in a propaganda benefit for Al Qaeda and in harm to U.S. relations with its allies); Barack, Obama, Protecting Our Security and Our Values, Address at the National Archives (May 21, 2009)Google Scholar (explaining decision to ban enhanced interrogation techniques because they undermined the rule of law, aided Al Qaeda recruitment, and put U.S. military personnel at risk of similar mistreatment).
33 Third Geneva Convention Commentary, supra note 26, at 60.
34 See Rosa Ehrenreich Brooks, War Everywhere: Rights, National Security Law, and the Law of Armed Conflict in the Age of Terror, 153 U. Pa. L. Rev. 675, 755-56 (2004)Google Scholar (arguing for elimination of distinction between international and noninternational armed conflict categories); James G., Stewart, Towards a Single Definition of Armed Conflict in International Humanitarian Law: A Critique of Internationalized Armed Conflict, 85 Int’l Rev. Red Cross 313, 313-14 (2003)Google Scholar (summarizing support for this position).
35 The International Court of Justice has affirmed the status of the Geneva Conventions as customary international law in conflicts between states. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 257 (July 8) (“[T]hese fundamental rules are to be observed by all States whether or not they have ratified the conventions that contain them, because they constitute intransgressible principles of international customary law.”); see also Oscar, Schachter, Entangled Treaty and Custom, in International Law at a Time of Perplexity: Essays in Honour of Shabtai Rosenne 717, 718 (Yoram, Dinstein ed., 1989)Google Scholar (“[C]ommentators have observed an increasing tendency on the part of governments and lawyers to consider the rules in international agreements as customary law on one ground or another, and therefore binding on States not parties to the agreement.”).
36 See Henckaerts & Doswald-Beck, supra note 29 (concluding that 136 of 161 rules constituted customary law in both international and noninternational armed conflict); Ryan Goodman & Derek Jinks, International Law, U.S. War Powers, and the Global War on Terrorism, 118 Harv. L. Rev. 2653,2654 n.4 (2004–05) (claiming “core principles of [the law of armed conflict] apply across the spectrum of conflict types”); Stewart, supra note 34, at 321–22 (summarizing literature supporting international armed conflict rules as customary international law applicable in noninternational armed conflicts).
37 See Letter from John B., Bellinger III & William J., Haynes II to Jakob, Kellenberger (Nov. 3, 2006), at http://www.defense.gov/home/pdf/Customary_International_Humanitiarian_Law.pdf Google Scholar (describing U.S. government concerns with methodology employed by ICRC in describing norms as custom); see also Prosecutor v. Tadić, Decision on die Defense Motion for Interlocutory Appeal on Jurisdiction, Case No. IT-94-1-AR72, para. 126 (Oct. 2, 1995) (holding that rules from international armed conflict have not made a “full and mechanical transplant” to noninternational armed conflict); Iain, Scobbie, The Approach to Customary International Law in the Study , in Perspectives on the ICRC Study on Customary International Humanitarian Law 15, 30 (Elizabeth, Wilmshurst & Susan, Breau eds., 2007) (“There appears to be too easy an elision from the fact of widespread participation in the Geneva Conventions and Additional Protocols to die normative conclusion of customary status.”).Google Scholar
38 See Remarks by Attorney General Michael Mukasey, Remarks Prepared for Delivery at the American Enterprise Institute for Public Policy Research (July 21, 2008), at http://www.justice.gov/archive/ag/speeches/2008/ag-speech-0807213.html (encapsulating differences between international armed conflict and conflicts with nonstate actors).
39 See Matthew C., Waxman, The Structure of Terrorism Threats and the Laws of War, 20 Duke J. Comp. & lnt’l L. 429 (2010)Google Scholar (discussing difficulties of applying IHL to armed conflicts against nonstate actors whose organizational structure is loose, evolving, and subject to debate).
40 See Eminent Jurists Panel on Terrorism, Counter-Terrorism, and Human Rights, supra note 14, at 52 (arguing that in conflict between the United States and Al Qaeda, “the legal framework that applies is not international humanitarian law, but that of international human rights law and domestic criminal law”); Gabor Rona, A Bull in a China Shop: The War on Terror and International Law in the United States, 39 Cal. W. Int’l L.J. 135, 148 (2008) (arguing that in absence of noninternational armed conflict rules on detention, “domestic law, tempered by international human rights obligations,” governs); UN Expert Praises Spain’s Role on Terrorism But Calls for Legal Reforms, UN News Centre (May 14, 2008), at http://www.un.org/apps/news/story.asp?NewsID=26674&Cr=terrorism&Crl (quoting Martin Scheinin saying that “terrorism must be combated within the framework of the law, including human rights law”).
41 See Alain, Pellet, No, This Is Not War! (Oct. 3, 2001), at https://www.unodc.org/tldb/bibliography/Biblio_ Internat_Law_Pellet_2001.doc Google Scholar (arguing 9/11 attacks were not an act of war, because they did not emanate from a state actor).
42 See Tadić, supra note 37, para. 70 (holding armed conflict exists “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”); see also Hamdan v. Rumsfeld, supra note 18, at 630 -31 (holding that conflict between the United States and Al Qaeda is a “conflict not of an international character” to which common Article 3 of the Geneva Conventions applies).
43 A vibrant literature theorizes on how human rights law and IHL should interact. See, e.g., Geoffrey S., Corn, Mixing Apples and Hand Grenades: The Logical Limit of Applying Human Rights Norms to Armed Conflict, J. Int’l Humanitarian L. Stud,Google Scholar (forthcoming) (arguing human rights law can play gap-filling role in parts of IHL dealing with peacelike activities, such as detention, but not with rules related to actual combat); Cordula, Droege, The Interplay Between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, 40 Isr. L. Rev. 310, 312 (2007)Google Scholar (arguing complementarity and specificity guide determination of when to apply which body of law); Theodor Meron, The Humanization of Humanitarian Law, 94 AJIL 239 (2000) (tracing the history of relationship between these two bodies of law).
44 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 ICJ Rep. 136, para. 106 (July 9).Google Scholar
45 See Legality of the Threat or Use of Nuclear Weapons, supra note 35, at 240 (“The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict.. . .”).
46 See Vienna Convention on the Law of Treaties, Art. 31, para. (3)(c), opened for signature May 23, 1969, 1155 UNTS 331 (“There shall be taken into account, together with the context:. . . [a]ny relevant rules of international law applicable in the relations between the parties.”).
47 See Cordula, Droege, Elective Affinities? Human Rights and Humanitarian Law, 90 Int’l Rev. Red Cross 501, 527 (2008)Google Scholar (arguing that the limit of complementarity arises when rules conflict).
48 Art. 9(3), Mar. 23, 1976, 999 UNTS 171.
49 one point of some dispute is whether human rights obligations extend extraterritorially. The United States has long rejected the view that the ICCPR applies to extraterritorial actions by state agents. The plain words of ICCPR Article 2(1) limit its application to “all individuals within its territory and subject to its jurisdiction.” The United States, for many years and across administrations, has interpreted this provision as limiting the scope of application of the ICCPR to individuals who are both in state territory and subject to its jurisdiction. U.S. Dep’t of State, Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights, annex 1 (Oct. 21, 2005), at http://www.state.gov/g/drl/rls/55504.htm. The U.S. position relies not only on the text of Article 2, but also on its negotiating history, which appears to support the U.S. position.
The ICCPR Human Rights Committee, by contrast, has written that the “and” in Article 2 actually means “or.” UN Human Rights Comm., General Comment No. 31 , The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, para. 10, UN Doc. CCPR/C/21/Rev.l/Add.l3 (2004) (“[A] State party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State Party, even if not situated within the territory of the State Party.”) Such an interpretation would mean that the Covenant protects individuals who are within the State’s territory and also those who are subject to its jurisdiction. In his commentary on the Covenant, Manfred Nowak explains that this interpretation “correct[s] the wording of this provision” by bringing it closer to the object and purpose of the treaty. Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary 43–44 (2d rev. ed. 2005).
Unlike the ICCPR, the European Convention on Human Rights contains no textual territorial limitation to application. See Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 1, Nov. 4, 1950, ETS No. 5,213 UNTS 221 (“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”). The European Court of Human Rights has interpreted this provision to mean that the Convention’s protections extend to those under the “effective control” of a state party to the treaty. See Banković v. Belgium, App. No. 52207/99, para. 70 (Eur. Ct. H.R. Dec. 12,2001), 41 ILM 517 (“ [T] he responsibility of a Contracting Parry was capable of being engaged when as a consequence of military action . . . it exercised effective control of an area outside its national territory.”).
The American Convention on Human Rights, Nov. 22, 1969, 1144 UNTS 123 [hereinafter American Convention], similarly has no express territorial limitations on its application. Article 1 provides: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms The Inter-American Commission on Human Rights has interpreted the American Convention to apply extraterritorially in certain circumstances. See, e.g., Coard v. United States, Case 10.951, Inter-Am. C.H.R., Report No. 109/99, para. 37 (1999) (holding Convention may extend “to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state—usually through the acts of the latter’s agents abroad”).
50 See Michael, Ratner, Letter to the Editor, A New Court for Terror Suspects?, N.Y. Times, July 16,2007,Google Scholar at A15 (“No domestic or international law permits preventive detention under the current circumstances.”); Rona, supra note 40, at 148 (arguing absence of detailed IHL detention provisions in noninternational armed conflict means that criminal trial must be used prior to detention).
51 Preventive detention has been approved in some instances by human rights bodies outside the security context at issue here. For example, the Human Rights Committee rejected a complaint against a New Zealand law permitting preventive detention of sexual predators. See UN Human Rights Comm., Rameka v. New Zealand, Communication No. 1090/2002, para. 7.3, UN Doc. CCPR/C/79/D/1090/2002 (Nov. 6, 2003) (allowing preventive detention provided periodic review requirement was met). By contrast, the Committee was critical of a French law permitting preventive detention of sex offenders for one-year periods after the completion of their criminal detention based on a finding of continued dangerousness. See UN Human Rights Comm., Consideration of Reports Submitted by States Parties Under Article 40 of the Covenant: Concluding Observations, France, para. 16, UN Doc. CCPR/C/FRA/CO/4 (July 31, 2008) (describing the law as “problematic under Articles 9, 14 and 15 of the Covenant”). The Committee has not been clear about when it believes such detention is permissible and when it becomes problematic.
52 See UN Human Rights Comm., General Comment No. 8, Art. 9, para. 4 (1992), UN Doc. HRI/GEN/1/ Rev. 1 (1994) (“if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary”).
53 Supra note 49.
54 See Ciulla v. Italy, 13 Eur. Ct. H.R. 346, paras. 41–42 (1989) (holding Italian preventive detention law targeting organized crime violated exhaustive list of purposes for detention in European Convention on Human Rights Article 5, which “must be interpreted strictly”).
55 See Lawless v. Ireland (No. 3), 3 Eur. Ct. H.R. (ser. A), para. 48 (1961) (upholding Irish law allowing for security detention without trial based on proper invocation of European Convention on Human Rights Article 15 derogation from Article 5). Article 15 allows for derogation “in time of war or other public emergency threatening the life of the nation.” It is doubtful that all conflicts with nonstate actors that are the subject of this article would meet this standard.
56 See Matthew C., Waxman, Administrative Detention of Terrorists: Why Detain and Detain Whom?, 3 J. Nat’l Security L. & Pol’y 1, 11 (2009)Google Scholar (summarizing arguments against use of criminal law in conflicts with terrorists).
57 See Robert, Chesney & Jack, Goldsmith, Terrorism and the Convergence of Criminal and Military Detention Models, 60 Stan. L. Rev. 1079, 1085-86 (2008)Google Scholar (evaluating common Article 3 and Additional Protocol II to support this proposition).
58 This problem exists under the classical formulation of customary international law, which looks both for uniform and extensive state practice and for opinio juris to support a finding of custom. See International Law Association, Statement of Principles Applicable to the Formation of General Customary International Law 21 (2000) (“For State practice to create a rule of customary law, it must be virtually uniform, both internally and collectively.”); Restatement (Third) of the Foreign Relations Law of the United States §102(2) (1987) (“Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation.”). Modern human rights scholars often label as custom various norms that are not supported by uniform or extensive state practice but that are widely acclaimed as legally obligatory. & John O., McGinnis & Ilya, Somin, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175, 1200–01 (2007)Google Scholar (discussing move to describe norms as custom based on opinio juris alone).
59 See Lawless v. Ireland; see also Kellenberger, supra note 2 (arguing that because human rights law permits derogations during times of emergency, there is no substitute for IHL on detention questions in noninternational armed conflict). ICCPR Article 4 allows for derogation from Article 14 of the treaty, which regulates detention. In General Comment No. 24, Issues Relating to Reservations Made upon Ratification or Accession to the Covenant or the Optional Protocols Thereto, para. 8, UN Doc. CCPR/C/21/Rev.l/Add.6 (1994), however, the Human Rights Committee has listed the right to be free from being “arbitrarily arrest[ed] and detain[ed]” as not subject to derogation. The Restatement (Third) of the Foreign Relations Law of the United States, supra note 58, §702 cmt. N, also lists arbitrary detention as a jus cogens norm not subject to derogation.
60 See Neil A., Lewis, Fate of Guantánamo Detainees Is Debated in Federal Court., N.Y. Times, Dec. 2, 2004,Google Scholar at A36 (quoting Justice Department official to the effect that “a little old lady in Switzerland” could be detained as enemy combatant for donating money to a charity that, unbeknownst to her, funded Al Qaeda).
61 U.S. Dep’t of Army Field Manual 27-10, Art. 3 (1956).
62 See War Dep’t, General Orders No. 100: Instructions for the Government of Armies of the United States in the Field, Art. 15 (1863), reprinted in The Laws of Armed Conflicts: A Collection of Conventions, Resolutions and Other Documents (Dietrich Schindler & Jiri Toman eds., 1988) (“Military necessity. . . allows of the capturing of every armed enemy, and every enemy of importance to the hostile government, or of peculiar danger to the captor . . . .”).
63 See Yoram Dinstein, the Conduct of Hostilities Under the Law of International Armed Conflict 16–17 (2004) (describing tension in IHL between principle of necessity and the need to protect humanitarian interests).
64 one clear restraint on military necessity is the Martens Clause. See Hague Convention (II) Respecting the Laws and Customs of War on Land, pmbl., July 29, 1899, 32 Stat. 1803:
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience.
Nevertheless, it is difficult to concretize application of this general provision to detention operations in conflicts with nonstate actors.
65 For a discussion of the substantive scope of detention authority and its importance in balancing liberty and security, see Waxman, supra note 56.
66 See supra notes 34–36 and accompanying text. Even if the international armed conflict detention rules are not legally applicable, they may be useful by analogy or as representing the potentially most stringent restrictions on detention in noninternational armed conflict. See Ryan Goodman, The Detention of Civilians in Armed Conflict, 103 AJIL 48,49 - 51 (2009) (explaining that when detention is allowed in international armed conflict, it must a fortiori be permitted in noninternational armed conflict).
67 Article 4 has itself engendered vigorous legal debate regarding whether members of regular armed forces must meet the four criteria of Article 4(A)(2) to qualify for prisoner-of-war status. Compare Sean D. Murphy, Evolving Geneva Convention Paradigms in the “War on Terrorism “: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Combatants, “75 Geo. Wash. L. Rev. 1105, 1125-26 (2007) (arguing that armed forces are not “regular” unless they meet the four criteria), with Evan J. Wallach, Afghanistan, Quirin and Uchiyama. Does the Sauce Suit the Gander?, 2003 Army Law., Nov. 2003, at 18, 24 (contending that four criteria are applicable only to “militia or volunteer corps,” not to regular state troops).
68 See Knut, Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants, “85 Int’l Rev. Red Cross 45, 45–46 (2003)Google Scholar (summarizing rights and burdens associated with combatant status).
69 See Steven, Erlanger, Yemen Says Bomb Suspect Met with Qaeda Figures, N.Y. Times, Jan. 8, 2010,Google Scholar at A12 (describing use of “underwear bomb”).
70 Some observers have urged that, as a matter of policy, detained members of Al Qaeda should be provided prisoner- of-war privileges. See Brett, Shumate, New Rules for a New War: The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan, 18 N.Y. Int’l L. Rev., Summer 2005,Google Scholar at 1, 47-52 (summarizing support for this position). We do not understand those who support granting prisoner-of-war privileges to detainees in conflicts with nonstate actors as saying that anyone may be detained under the laws of war provided that the state grants prisoner-of-war privileges to them. Such an argument would give states unbridled detention authority at the cost of relatively meager treatment protections. Nevertheless, it may be that states have sometimes granted prisoner-of war status to undeserving groups in order to claim authority to detain. See Luisa, Vierucci, Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to Which Guantanamo Bay Detainees Are Entitled, 1 J. Int’l Crim. Just. 284, 300 n.76 (2003)Google Scholar (explaining that the British detained Iraqi students as prisoners of war during the first Gulf war in order to exercise detention authority).
71 See, e.g., Antonio, Cassese, Expert Opinion on Whether Israel’s Targeted Killings of Palestinian Terrorists Is Consonant with International Humanitarian Law, at 14, HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr.Google Scholar , supra note 26, available at http://www.stoptorture.org.il/files/cassese.pdf (“It must be underlined again that no ‘intermediate status’ exists between that of combatant and the status of civilian.”); Dörmann, supra note 68, at 72 (“Thus for the purposes of the law on the conduct of hostilities, there is no gap. Either a person is a combatant or a civilian.”); Goodman, supra note 66, at 51 (arguing that civilians who take part in hostilities remain civilians); Marco Sassòli, Use and Abuse of the Laws of War in the “War on Terrorism, “22 L. & Ineq. 195, 207–08 (2004) (marshaling support for this position). This approach is taken by the Israeli Supreme Court. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr., supra note 26, para. 28 (“It is difficult for us to see how a third category can be recognized in the framework of the Hague and Geneva Conventions.”).
72 See HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr., supra note 26, para. 28 (holding Palestinian terrorists to be civilians because the law does not recognize any categories other than lawful combatant and civilian).
73 See Geneva Convention IV, supra note 1, Art. 42 (allowing for detention of civilians when demanded by security). Article 43 of the Fourth Geneva Convention specifies procedures for authorizing detention that require individualized review, as is discussed in part III.
74 See Int’l Comm. Red Cross, Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War: Commentary 51 (Jean S. Pictet gen. ed., 1960) [hereinafter Fourth Geneva Convention Commentary] (“Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.”).
75 See Geneva Convention IV, supra note 1, Art. 5 (describing protections for protected persons who are detained as “a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power”); see also Fourth Geneva Convention Commentary, supra note 74, at 53 (explaining that the need to provide protections to those accused of acts like sabotage and terrorism requires treating them as protected persons).
76 Geneva Convention IV, supra note 1, Art. 4. “Normal diplomatic representation” requires that the state have at least one diplomatic representative accredited to the belligerent state who has the freedom to make diplomatic representations. Fourth Geneva Convention Commentary, supra note 74, at 49. The consequence of normal diplomatic relations is that states may use normal diplomatic channels, including consular visits, to protect the interests of their nationals with the belligerent state. Id.
77 The ICTY in Tadić held that in some instances ethnicity may trump formal nationality in determining whether a person qualifies for protected person status. Thus, Bosnian Yugoslavs held by the rump, Serb-dominated Yugoslavia were effectively diplomatically abandoned and consequently entitled to protected person status. Prosecutor v. Tadić, Jurisdiction, Case No. IT-94-1-AR72, paras. 165-69 (July 15, 1999). Under a more functional approach to protected person status, some nonstate groups might gain protected person status based on diplomatic abandonment by their home states.
78 For example, a British delegate at the Geneva Conference explained that “the whole conception of the Civilian Convention was the protection of civilian victims of war and not the protection of illegitimate bearers of arms,” who “could not expect full protection under rules of war to which they did not conform.” 2 Final Record of the Diplomatic Conference of Geneva of 1949, sec. A, at 621 (1949); see also Jason, Callen, Unlawful Combatants and the Geneva Conventions, 44 Va. J. Int’l L. 1025, 1053 (2004)Google Scholar (detailing Geneva Conference debate on application of the Fourth Convention to unlawful combatants).
79 During the Bush administration, Taliban and Al Qaeda fighters were labeled “unlawful combatants” or simply “enemy combatants.” See Memorandum from President George W. Bush to the Vice President, Secretaries of State and Defense, Attorney General, and Other officials, para. 2(d) (Feb. 7,2002), at http://www.washingtonpost.com/wp-srv/nation/documents/020702bush.pdf [hereinafter Bush memorandum] (concluding that Taliban detainees are “unlawful combatants” and that Al Qaeda detainees do not get prisoner-of-war protections); Memorandum from Deputy Secretary of Defense Paul Wolfowitz to the Secretary of the Navy, para, (a) (July 7,2004), at http://www.defense.gov/news/Jul2004/d20040707review.pdf [hereinafter Wolfowitz memorandum] (defining as enemy combatant “an individual who was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.”). The Obama administration dropped the term “enemy combatant” but continues to assert the right to detain members of Al Qaeda, the Taliban, and their associated forces and “substantial supporters” as authorized by Congress. Brief for Respondent, Hamlily v. Obama, 6l6F.Supp.2d63(D.D.C. 2009) (No. 05-0763). Observers have rightly concluded that both administrations have claimed the right to detain these individuals until the end of hostilities based on their status. See Benjamin, Wittes, Robert, Chesney, & Rabea, Benhalim, the Emerging Law of Detention: the Guantánamo Habeas Cases as Lawmaking 16-17 (2010)Google Scholar (describing the minor changes to detention authority claimed by the Obama administration).
80 See Curtis, A. Bradley, The United States, Israel & Unlawful Combatants, 12 Green Bag 2D 397, 404–05 (2009)Google Scholar (marshaling arguments in favor of viewing nonstate fighters as a subset of combatants not entitled to protections as either prisoners of war or protected persons); Ingrid Detter, the Law of War 148 (2000) (arguing that an unlawful combatant is one committing belligerent acts against a state while not part of a regular military force or militias); Dinstein, supra note 63, at 29 (explaining that an unlawful combatant “is a combatant in the sense that he can be lawfully targeted by the enemy, but he cannot claim the privileges appertaining to lawful combatancy”); Instructions for the Government of Armies of the United States in the Field, Arts. 84, 85 (1898) (originally issued as General Orders No. 100) (categorizing private persons who sabotage behind enemy lines as undeserving of prisoner-of-war status and subject to summary execution); W. Hays Parks, Air War and the Law of War, 32 A.F. L. Rev. 1, 83 (1990) (criticizing Additional Protocol I for failing to respect the traditional category of “unprivileged belligerent”); Adam Roberts, Counterterrorism and the Laws of War: A Critique of the U.S. Approach, Remarks at the Brookings Institution (Mar. 11, 2002), at http://www.brookings.edu/events/2002/031 lterrorism.aspx (“There is a long record of certain people coming into the category of unlawful combatants—pirates, spies, saboteurs, and so on. It has been absurd that there should have been a debate about whether or not that category exists.”); Michael, N. Schmitt, Humanitarian Law and Direct Participation in Hostilities by Private Contractors or Civilian Employees, 5 Chi. J. Int’l L. 511, 522 (2005)Google Scholar (“[U]nlawful combatants or unprivileged belligerents . . . are either civilians who have joined the conflict or members of a purported military organization who do not meet the requirements for lawful combatant status.”).
81 See Bradley, supra note 80, at 402 (arguing against viewing members of terrorist groups as civilians).
82 Civilians are not subject to targeting unless and for such time as they take a direct part in hostilities. Additional Protocol I, supra note 23, Art. 51 (3). Categorizing nonstate fighters as civilians would mean that the state could not target these fighters at all times, as it could a state army, but rather only “for such time” as they are participating. It also means that some nonstate group members could not be targeted at all because their participation is insufficiently direct, even though someone engaged in an identical function for a state army would be subject to targeting. See Richard, D. Rosen, Targeting Enemy Forces in the War on Terror: Preserving Civilian Immunity, 42 Vand. J. Transnat’l L. 683, 736-39 (2009)Google Scholar (commenting on perverse consequences of viewing militant groups as groups of civilians). The Israeli Supreme Court acknowledged these difficulties in concluding that Palestinian militants were civilians, but sought to resolve the concern by defining “direct participation” broadly and viewing the rest period between terrorist acts by committed militants as a form of participation. HCJ 769/02 Pub. Comm. Against Torture in Isr. v. Gov’t of Isr., supra note 26.
83 As discussed earlier, unlawful combatants would still be entitled, at a minimum, to the treatment protections of common Article 3 as a matter of customary international law.
84 Hamdi v. Rumsfeld, 542 U.S. 507, 516 (2004).
85 See Brief for Respondent, Hamlily v. Obama (“The detention authority conferred by the AUMF is necessarily informed by principles of the laws of war.”). As discussed below, the D.C. Circuit rejected this view in Al-Bihani v. Obama, 590 F.3d 866, 871 (D.C. Cir. 2010).
86 Hamlily v. Obama, 616 F.Supp.2d at 67–68 (quoting Respondent’s Memorandum Regarding the Government’s Detention Authority (Mar. 13, 2009)).
87 See Brief for Respondent, Hamlily v. Obama (“It is neither possible nor advisable . . . to attempt to identify, in the abstract, the precise nature and degree of ‘substantial support’. . . that. . . would be sufficient to bring persons .. . within the foregoing framework.”).
88 Hamlily v. Obama, 616 F.Supp.2d at 75; see also Chesney & Goldsmith, supra note 57, at 1122 (advocating similar approach).
89 See Hamlily v. Obama, 616 F.Supp.2d at 76 (explaining difference in application of command-structure test from a previous D.C. district court opinion).
90 Al-Bihani v. Obama, 590 F.3d at 871 (describing as “mistaken” the contention that AUMF detention authority must be read in light of international law). Seven judges of the D.C. Circuit subsequently indicated their view that this statement was dictum. Al-Bihani v. Obama, 619 F.3d 1, 1 (2010) (Sentelle, J., concurring in denial of reh’g en banc). The conclusion also appears to be at odds with the Supreme Court decision in Hamdi, where the Court looked to international law to interpret the AUMF. See Hamdi v. Rumsfeld, 542 U.S. at 518 (plurality opinion) (relying on international law to conclude that AUMF grants authority to the executive to detain members of the Taliban); see also Curtis A., Bradley & Jack, L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 Harv. L. Rev. 2047, 2092 (2005)Google Scholar (arguing law of war is limiting principle on detention authorized by AUMF).
91 Al-Bihani v. Obama, 590 F.3d at 872.
92 See, e.g., Goodman, supra note 66, at 62 n.74 (summarizing statements from senators critical of this definition); Jordan, J. Paust, Responding Lawfully to Al Qaeda, 56 Cath. U. L. Rev. 759, 777 (2007)Google Scholar (“one who merely materially supports hostilities is not a fighter or combatant.”); Joanne Mariner, A First Look at the Military Commissions Act of 2009, at http://writ.news.findlaw.com/mariner/20091104.html. (“[T]here is no basis in the laws of war for treating people who merely support hostilities as belligerents. So in this sense, the law is clearly overbroad.”).
93 See supra notes 50–59 and accompanying text (describing problems with “prosecute or release” model).
94 See Monica, Hakimi, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 Yale J. Int’l L. 369, 389 (2008)Google Scholar (arguing that more attention needs to be paid to substantive standards for preventive detention in human rights jurisprudence).
95 See ICCPR, supra note 48, Art. 9(1) (“No one shall be subjected to arbitrary arrest or detention.”).
96 UN Human Rights Comm., Views: Communication No. 1085/2002, para. 8.3, UN Doc. CCPR/C/86/D/ 1085/2002 (2006).
97 See UN Human Rights Comm., Views: Communication No. 1324/2004, para. 7.2, UN Doc. CCPR/C/88/ D/1324/2004 (2006) (explaining that detention is “arbitrary if it is not necessary in all the circumstances of the case and proportionate to the ends sought”).
98 See UN Human Rights Comm., Concluding Observations: Israel, para. 21, UN Doc. CCPR/C/79/Add.93 (1998) (criticizing practice of holding Lebanese as bargaining chips in return for captured Israeli soldiers or their corpses).
99 Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force, Exec. Order No. 13,567, 76 Fed. Reg. 13,277 (Mar. 7, 2011).
100 See David, C. Fathi, Dangers of a Preventive Detention Law, Boston Globe, Jan. 1, 2009,Google Scholar at A19 (arguing that allowing preventive detention without requirement of mental illness risks “civil commitment exception from swallowing the rule that those whom the government wants to imprison must first be provided with the protections of a criminal trial”); cf. Allen v. Illinois, 478 U.S. 364,380 (Stevens, J., dissenting) (arguing that to allow civil commitment statute for sexual predators to evade Fifth Amendment requirements could lead to expansion of civil commitment statutes to avoid constitutional protections for criminal defendants).
101 An alternative to preventive, wartime detention would be to criminalize membership in an enemy organization. Indeed, many of the criteria suggested below for determining membership in an enemy nonstate group are acts that are illegal under the domestic law of many states. See, e.g., 18U.S.C. §2339 (2010) (criminalizing various acts as material support for terrorism). Criminalizing membership in enemy nonstate groups is limited by national and international law protections for freedom of association. See, e.g., Scales v. United States, 367 U.S. 203, 222 (1961) (describing “close constitutional questions” created if Congress criminalized “passive” membership in an organization); id. at 263-64 (Douglas, J., dissenting) (arguing that criminalization of even active membership in an organization violates freedom of association unless the actions are themselves criminal). In any event, as we discussed above, we are skeptical whether it is practical in the context of military conflicts with nonstate actors to require states to hold a criminal trials in order to prove the acts required for detention of individuals captured outside their territory.
102 The ICRC has used a functional approach to determine which members of nonstate groups should be treated like combatants for targeting purposes. The “continuous combat function” test allows states to target—in the same manner as combatants—members of armed groups whose “continuous function involves the preparation, execution, or command of acts or operations amounting to direct participation in hostilities.” Int’l Comm. Red Cross, supra note 9, at 34.
103 The two questions are related. The substantive test for detention will influence the kind of process needed to evaluate the test. See Waxman, supra note 56, at 25 (discussing interrelationship between substantive definition of who may be detained and process provided).
104 See Kellenberger, supra note 2 (describing ICRC conclusions that” [t]here are simply no procedural safeguards in treaties of humanitarian law to deal with [security internees] during non-international armed conflicts.”).
105 Article 75 of Additional Protocol I provides procedural protections accompanying trials on criminal charges of combatants in an international armed conflict. It provides nothing, however, regarding the procedures that must accompany the decision to detain the combatant.
106 Third Geneva Convention Commentary, supra note 26, at 77 (explaining that a consequence of the tribunal determination would be whether detainee could be prosecuted for “taking part in the fight without the right to do so”).
107 The limited scope of Article 5 is confirmed by the provision’s negotiating history. The original draft text of Article 5(2) read as follows: “Should any doubt arise whether any of these persons belong to one of the categories named in said Article “ Fourth Geneva Convention Commentary, supra note 74, at 77.
During the negotiation of the Geneva Conventions, the Dutch proposed an amendment limiting “these persons” entitled to a “competent tribunal” to persons who had committed a belligerent act and fell into the powers of the enemy. This amendment reflected the concern that captured prisoners who had committed belligerent acts were subject to summary execution as franc tireurs and therefore needed a competent tribunal to adjudicate their status. See Final Record of the Diplomatic Conference of Geneva of 1949, at 270–71 (1949) (quoting Dutch representative explaining that multiple individuals needed to be involved in determining whether someone who committed a belligerent act deserved prisoner-of-war status because of the risk that “he will be considered to be a franc tireur and be put against the wall and shot on the spot.”); see also Fourth Geneva Convention Commentary, supra note 74, at 78 (stating that the Dutch clarification of who received Article 5 tribunals “reduce[d] the number of doubtful cases in any future conflict”).
108 See Murphy, supra note 67, at 1131 (arguing that “spirit” of Article 5 encompasses this question).
109 U.S. Army, Regulation 190-8, Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees, para. l-6(e)(10)(c) (Oct. 1, 1997), at http://www.au.af.mil/au/awc/awcgate/law/arl90-8.pdf [hereinafter Army Regulation 190-8].
110 See Bush memorandum, supra note 79, para. 2(d) (finding that Al Qaeda and Taliban fighters were not entitled to prisoner-of-war status); see also Katharine, Q. Seelye, Detainees Are Not P.O.W.’s, Cheney and Rumsfeld Declare, N.Y. Times, Jan. 28, 2002,Google Scholar at A6 (quoting then Secretary of Defense Rumsfeld explaining decision not to grant Article 5 hearings).
111 The question of whether actual Taliban members are entitled to prisoner-of-war status has been die subject of intense academic debate. See Derek, Jinks, The Declining Significance of POW Status, 45 HARV. Int’l L.J. 367, 372–73 & nn. 24–25 (2004)Google Scholar (summarizing debate regarding prisoner-of-war status in conflict with Al Qaeda and the Taliban).
112 Detainees were screened by the U. S. military after capture on the battlefield and later at a centralized detention facility to ensure that only belligerents were subject to further detention. Brief for Respondents at 5-6, Rasul v. Bush, 542 U.S. 466 (2004) (Nos. 03-334,03-343). But there was no formalized process of executive branch review outside the theater of operations, or any external check on that determination, including no right to legal representation or judicial review. See id. at 13-16 (summarizing U.S. government arguments against judicial imposition of formalized review requirements at Guantánamo Bay). As a consequence, only about one-third of the detainees initially brought to Guantanamo Bay were linked to Al Qaeda. Benjamin Wittes & Zaahira Wyne, the Current Detainee Population at Guantanamo: an Empirical Study 2 (2008), at http://www.brookings.edu/reports/2008/1216_detainees_wittes.aspx. Subsequent judicial review demonstrated a large percentage of detainees were held without adequate evidence of their participation in the conflict. See Wittes et al., supra note 79, at 10 (explaining that in three-fourths of Guantánamo habeas cases, the Court has ordered the detainee released).
113 See Rasul v. Bush, supra note 112, at 485 (holding that the federal habeas statute allowed courts to hear petitions filed by detainees at Guantánamo Bay).
114 See Hamdi v. Rumsfeld, supra note 84, at 533 (holding that the Fifth Amendment Due Process Clause required that a U.S. citizen picked up on the battlefield in Afghanistan be provided both notice of the reasons for his detention and the opportunity to rebut those reasons in front of a neutral decision maker).
115 See Wolfowitz memorandum, supra note 79 (creating CSRTs).
116 See Boumediene v. Bush, 553 U.S. 723 (2008) (criticizing CSRTs for limiting, because of lack of counsel, detainees’ opportunity to present exculpatory evidence). The Defense Department also employed personnel for the tribunals who lacked experience in evaluating the intelligence information that was generally the basis for government detention. Declaration of Lt. Col. Stephen Abraham, Bismullah v. Gates, 501 F.3d 178 (D.C. Cir., 2007); see also Janet Cooper Alexander, Jurisdiction-Stripping in a Time of Terror, 95 Cal. L. Rev. 1193,1205 (2007) (criticizing CSRTs for restrictions on counsel and for unfair evidentiary rules); Jonathan Hafetz, Torture, Judicial Review, and the Regulation of Custodial Interrogations, 62 N.Y.U. Ann. Surv. Am. L. 433,451–52 (2007) (same).
117 Detainee Treatment Act of 2005, §1005 (2006).
118 See, e.g., Brian J., Foley, Guantanamo and Beyond: Dangers of Rigging the Rules, 97 J. Crim. L. & Criminology 1009, 1034–35 (2007)Google Scholar (criticizing Detainee Treatment Act review scheme); Rona, supra note40, at 148–49 (same). In Boumediene v. Bush, 553 U.S. at 732, the Court held that detainees held at Guantánamo Bay are protected by the Suspension Clause, and found Congress acted unconstitutionally in stripping their habeas rights.
119 of course, Article 5 does expect that tribunals be “fair, competent, and impartial.” See United States v. Noriega, 808 F.Supp. 791, 796 (S.D. Fla. 1992) (describing concerns of the drafters of the Geneva Conventions). The lack of opportunity for Guantanamo detainees to rebut secret evidence and to introduce exculpatory evidence has raised concerns about fairness.
120 The original text of Article 5 proposed resolution of such doubt by a “responsible authority.” This text was replaced by “competent tribunal” in order to preclude giving responsibility for this determination to a single person of subordinate authority. Third Geneva Convention Commentary, supra note 26, at 77; see also Thomas L., Hemingway, Wartime Detention of Enemy Combatants: What If There Were a War and No one Could Be Detained Without an Attorney?, 34 Denv. J. Int’l L. & Pol’y 63, 79 (2006)Google Scholar (“A ‘competent tribunal’ is not based on the law enforcement model; Article 5 tribunals are not courts.”).
121 The United States uses a panel of three commissioned officers, one of whom must be of field grade, to conduct Article 5 reviews. Army Regulation 190-8, supra note 111, para. l-6(c).
122 See Ministry of National Defence, Regulations Respecting the Determination of the Entitlement of Persons Detained by the Canadian Forces to Prisoner-of-War Status, SOR/91-134 (Jan. 25,1991) (Can.), at http://www.canlii.org/en/ca/laws/regu/sor-91-134/latest/sor-91-134.html (allowing military authority to appoint a military legal officer to conduct review).
123 See Geneva Conventions Act, 1957, Part III, §10(A) (Austl.) (granting jurisdiction to the Supreme Court of the state or territory where person is being held to hear status-review claims); Incarceration of Unlawful Combatants Law, sec. 5 (2002) (Isr.), at http://www.justice.gov.il/MOJHeb/HeskeminVeKishreiHutz/KishreiChutz/Hukim English/ (granting judges of district court the authority to determine whether prisoner does not meet requirement for prisoner-of-war status).
124 See Yasmin, Naqvi, Doubtful Prisoner-of-War Status, 84 Int’l Rev. Red Cross 571, 587 (2002)Google Scholar (describing practice in the United Kingdom).
125 Ministry of National Defence, supra note 124, sec. 10 (providing for an officer or noncommissioned member of the military to assist the detainee).
126 U.S. Army Regulation 190-8 makes no mention of representation by counsel or military personnel to assist the detainee.
127 Ministry of National Defence, supra note 122, sec. 17 (allowing military authority that appointed review officer to review determination).
128 See Naqvi, supra note 124, at 591 (explaining that Israel allows appeal of prisoner-of-war determinations to its Supreme Court).
129 Geneva Convention IV, supra note 1, Art. 43. Article 78 does not spell out the locus of review, but the ICRC commentary suggests a requirement similar to Article 43. See Fourth Geneva Convention Commentary, supra note 74, at 368 (explaining that occupying power “must observe the stipulations of Article 43, which contains a precise and detailed statement of the procedure to be followed when a protected person . . . is interned”).
130 Geneva Convention IV, supra note 1, Art. 78. Whether appeals are heard by a “court” or a “board” is left to the occupying power. Fourth Geneva Convention Commentary, supra note 74, at 368–69. Protected persons detained in the territory of a party to the conflict have no comparable right.
131 Geneva Convention IV, supra note 1, Arts. 43, 78.
132 Additional Protocol I, supra note 23, Art. 75(3) (“Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken.”).
133 See, e.g., ICCPR, supra note 48, Art. 9(2) (“Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.”) The Human Rights Committee has interpreted this provision to extend a right to administrative detainees to know the reasons for their detention. UN Human Rights Comm., supra note 52, para. 4.
134 See ICCPR, supra note 48, Art. 9(4) (“Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”); American Convention, supra note 49, Art. 7(6) (“Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful.”); European Convention on Human Rights, supra note 49, Art. 5(4) (“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”).
135 See UN Human Rights Comm., Concluding Observations: Israel, para. 13, UN Doc. CCPR/CO/78/ISR (2003) (recommending Israel provide anyone detained access to a lawyer within forty-eight hours); see also Hamdi v. Rumsfeld, supra note 84, at 539 (holding that a U.S. citizen detained as an enemy combatant “unquestionably has the right to access to counsel” in habeas proceedings).
136 See Chesney & Goldsmith, supra note 57, at 1128–29 (describing difficult evidentiary questions that follow from recognizing such a right); Ashley S. Deeks, Administrative Detention in Armed Conflict, 40 Case W. Res. J. Int’l L. 403,433 (2009) (arguing for application of Article 75 notice requirements in detentions in noninternational armed conflict); Hakimi, supra note 94, at 410 (“[T]he detainee must be informed of the factual basis for detention and be given a genuine opportunity to respond.”); Jelena Pejic, Procedural Principles and Safeguards for Internment/Administrative Detention in Armed Conflict and Other Situations Violence, 87 Int’l Rev. Red Cross 375, 384 (2005) (describing notice as requirement in both IHL and human rights law).
137 See Chesney & Goldsmith, supra note 57, at 1131 (describing as “preferable” insertion of “a judicial decision-maker at the front end of the process”); Deeks, supra note 136, at 433 (arguing that Fourth Geneva Convention requirement of “initial review of the detention by an independent court or board” be extended to detainees in noninternational armed conflict); Pejic, supra note 136, at 386 (“Review of the lawfulness of internment/administrative detention must be carried out by an independent and impartial body”).
138 See Deeks, supra note 136 (arguing for “right of appeal” in detention in noninternational armed conflict).
139 See Mahjoub v. Canada,  F.C. 156, para. 54 (Can.) (refusing to accept Immigration Ministry finding that Mahjoub posed a threat to Canada, absent evidence that minister had independently reviewed intelligence information, including source material); Parhat v. Gates, 532 F.3d 834, 846-47 (D.C. Cir. 2008) (holding government evidence could not be assessed without consideration of the reliability of the sources).
140 See Brief for Respondent at 25-27, Hamdi v. Rumsfeld, supra note 84 (No. 03-6696) (arguing that the “Executive’s Determination That an Individual Is an Enemy Combatant Is Entitled to the Utmost Deference by a Court”); Brief for Respondents at 52-59, Rasul v. Bush, supra note 112 (same). The Obama administration has questioned in other contexts the role of the judiciary in reviewing classified information. See, e.g., Mohamed v. Jeppesen Dataplan, Inc., 614 F.3d 1070 (9th Cir. 2010) (en banc) (affirming government contention that suit concerning extraordinary renditions could not be heard, because of the link between the allegations in the case and classified information).
141 See Bismullah v. Gates, supra note 116, at 187 (“Counsel simply cannot argue, nor can the court determine, whether a preponderance of the evidence supports the Tribunal’s status determination without seeing all the evidence.”).
142 See id. at 187–8 8 (suggesting judicial deference to executive branch determinations that evidence was so sensitive that disclosure was impossible).
143 See id. at 435 (questioning whether it is feasible to provide counsel and judicial review in conflicts in which state detains thousands of individuals); Marco Sassòli & Laura M. Olson, The Relationship Between International Humanitarian and Human Rights Law Where It Matters: Admissible Killing and Internment of Fighters in Non-international Armed Conflicts, 90 Int’l Rev. Red Cross 599, 622 (2008) (same).
144 Bismullah v. Gates, supra note 116, at 180.
145 Petition for Writ of Certiorari at 29, Gates v. Bismullah, 554 U.S. 913 (2008) (No. 07-1054).
146 The Obama administration apparently agrees. See Motion for Certification of This Court’s April 2, 2009 Order for Interlocutory Appeal Pursuant to 28 U.S.C. §1292(b), Maqaleh v. Gates, 604 F.Supp.2d 205 (D. D.C. 2009), rev’d 605F. 3d 84 (D.C. Cir. 2010) (arguing that so many individuals would be able to bring habeas petitions in Afghanistan under the district court’s ruling that implementation would be prohibitively difficult).
147 See Waxman, supra note 56, at 35.
148 See Maqaleh v. Gates, 605 F.3d at 87 (holding detainees picked up outside of Afghanistan and transported there have no right of habeas corpus).
150 See Geneva Convention III, supra note 1, Art. 19 (“Prisoners of war shall be evacuated, as soon as possible after their capture, to camps situated in an area far enough from the combat zone for them to be out of danger.”); Geneva Convention IV, supra note 1, Art. 83 (“The Detaining Power shall not set up places of internment in areas particularly exposed to the dangers of war.”).
151 See Additional Protocol II, supra note 274, Art. 2(2) (“At the end of the armed conflict, all the persons who have been deprived of their liberty or whose liberty has been restricted for reasons related to such conflict. . . shall enjoy the protection of Articles 5 and 6 until the end of such deprivation or restriction of liberty.”).
152 Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, at 1360 (Yves Sandoz et al., 1987). Because traditional noninternational armed conflicts are internal conflicts, internal security reasons may give states continuing security rationales for maintaining detention after the cessation of active hostilities, an option not available in international armed conflict. See Geneva Convention III, supra notel, Art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”).
153 It is unclear whether the federal courts will accept detention until the end of active hostilities based on the finding that a detainee is a member of Al Qaeda or the Taliban. See Hamdi v. Rumsfeld, supra note 84, at 521 (O’Connor, J., plurality) (“If the practical circumstances of a given conflict are entirely unlike those of the conflicts that informed the development of the law of war, [detention authority predicated on the law of war] may unravel.”).
154 See Choe, Sang-Hun, Korean Tensions Grow as South Curbs Trade to North, N.Y. Times, May 24, 2010,Google Scholar at Al (detailing South Korean accusation that North Korea sank a South Korean submarine).
155 See Brooks, supra note 34, at 726 (“ [T] here is no obvious point at which the U.S. will be able to declare victory and end the conflict [against terrorism].”); Joan, Fitzpatrick, Rendition and Transfer in the War Against Terrorism: Guantánamo and Beyond, 25 LOY. L.A. Int’l & Comp. L. Rev. 457, 484–85 (2003)Google Scholar (arguing that end of hostilities in the war against terrorism is impossible to picture). of course, there are exceptions to this general pattern. Noninternational armed conflicts with traditional rebel groups that hold and govern territory are more subject to a formal end. For example, the conflict between Sri Lanka and the Tamil Tigers came to a definite end in 2009 with the complete military defeat of the latter. See Somini, Sengupta & Seth, Mydans, Rebels Routed in Sri Lanka After 25 Years of War, N.Y. TIMES, May 18,2009,Google Scholar at Al (reporting on announcement from the Tigers that its fight against the Sri Lankan government had “reached its bitter end.”).
156 See Waxman, supra note 39, at 435–36.
157 See In re Guantanamo Detainee Cases, 355 F.Supp.2d 443,465–66 (D.D.C. 2005) (“Short of the death penalty, life imprisonment is the ultimate deprivation of liberty, and the uncertainty of whether the war on terror—and thus the period of incarceration—will last a lifetime may be even worse than if the detainees had been tried, convicted, and definitively sentenced to a fixed term.”).
158 See Adam, Roberts, The Laws of War in the War on Terror, in International Law and the War on Terror 175, 196 n.38 (Fred L., Borch & Paul S., Wilson, eds., 2003)Google Scholar (quoting aide-mémoire from the ICRC to the United States dated November 19,2002); see also Allen, S. Weiner, Hamdan, Terror, War, 11 Lewis & Clark L. Rev. 997, 1018–19 (2007)Google Scholar (arguing plausible argument can be made that United States had to release all Taliban and Al Qaeda detainees after installation of transitional government in Afghanistan); Amnesty International, U.S. Detentions in Afghanistan: an Aide-Mémoire For Continued Action 3 (June 7,2005), available at http://www.amnesty.org/en/library/asset/AMR51/093/2005/en/4fa11d9e-d4de-11 dd-8a23-d58a49c0d652/amr510932005en.pdf (arguing that United States was obligated to release all prisoners in June 2002 that it did not intend to charge criminally). But see Murphy, supra note 67, at 1123 (questioning conclusion of ICRC that international armed conflict in Afghanistan ended in June 2002 despite the continued presence of tens of thousands of U.S. troops); Maqaleh v. Gates, supra note 148, at 97 (“It is undisputed that Bagram, indeed the entire nation of Afghanistan, remains a theater of war.”).
159 See, e.g., UN Human Rights Comm., Concluding Observations: Cameroon, para. 204, UN Doc. CCPR/A/49/40 (1994) (explaining that ICCPR Article 9(4) requires a time limit on administrative detention).
160 Hakimi, supra note 94, at 412–13 (raising as an example a two-year maximum on security detentions before detainees must be prosecuted, deported, or released).
161 But see Christiane Shields Delessert, Release and Repatriation of Prisoners of War AT THE end of Active Hostilities 108 (arguing that after some time in detention, prisoners of war lose their value and therefore should be subject to release and repatriation).
162 See Elisabeth, Bumiller, Many Ex-detainees Said to Be Engaged in Terror, N.Y. Times, Jan. 7, 2010,Google Scholar at A16 (citing to a classified Pentagon report). However, many critics of the Defense Department statistics allege that many of those accused of returning to the fight have done nothing more than speak critically of the United States. See Rajiv, Chandrasekaran, Detainees ‘Return to the Fight,’ Wash. Post, Feb. 23, 2009,Google Scholar at A11 (quoting Mark Denbeaux and Human Rights Watch regarding their skepticism about Pentagon figures).
163 See Steven, Erlanger, Yemen’s Chaos Aids the Evolution of a Qaeda Cell, N.Y. Times, Jan. 3, 2010,Google Scholar at Al (explaining former Guantanamo detainee Said Ali al-Shihri’s role in Al Qaeda in Yemen).
164 Alissa, J. Rubin, Bomber’s Final Messages Exhort Fighters Against U.S., N.Y. Times, May 9, 2008,Google Scholar at A14.
165 See Geneva Convention IV, supra note 1, Art. 132 (“Each interned person shall be released by the Detaining Power as soon as the reasons which necessitated his internment no longer exist.”).
166 Exec. Order No. 13,567, supra note 99; Administrative Review of the Detention of Enemy Combatants at U.S. Naval Base Guantanamo Bay, Cuba, para. 1(c), Memorandum from Gordon R. England, Sec’y of the Navy, to Sec’y of State and Others (Sept. 14, 2004) (specifying purpose of review as to determine whether “the enemy combatant represents a continuing threat to the U.S. or its allies in the ongoing armed conflict against al Qaida and its affiliates and supporters”).
167 Bradley & Goldsmith, supra note 90, at 2125.
168 The Bush administration tried this approach for Guantanamo detainees by establishing Administrative Review Boards (ARBs). See Administrative Review of the Detention of Enemy Combatants at U.S. Naval Base Guantanamo Bay, Cuba, supra note 166. While the ARBs were a good idea in theory, in reality the Defense Department allocated too few resources and provided the detainees too little process to make them effective. These failings led the Obama administration to establish its own Guantanamo Review Task Force to address much the same task.
169 See Geneva Convention IV, supra note 1, Arts. 43 (requiring review “at least twice yearly”), 78 (requiring review “if possible every six months”).
170 The U.S. federal courts are already wrestling with the question of whether a detainee may secure earlier release by renouncing his relationship with Al Qaeda and the Taliban during confinement. The district courts have divided on the question. See WITTES et al., supra note 79, at 29-31 (comparing Basardh and Award habeas decisions).
171 Bradley & Goldsmith, supra note 90, at 2125.
172 See Hakimi, supra note 94, at 413 (arguing for increasing the standard of review in administrative detentions as the length of detention increases); Waxman, supra note 6, at 1408–12 (same).
173 See In re Guantanamo Detainee Cases, supra note 157 (explaining that detainee liberty interest grows as the length of anticipated detention increases).
174 See Tung, Yin, Ending the War on Terrorism one Terrorist at a Time: A Noncriminal Detention Model for Holding and Releasing Guantanamo Bay Detainees, 29 Harv. J. L. & Pub. Pol’y 149, 202–07 (2005)Google Scholar (arguing that periodic reviews in the U.S. conflict with Al Qaeda should take place in Article III courts, with detainees represented by counsel).
175 See Christopher, Slobogin, A Jurisprudence of Dangerousness, 98 Nw. U. L. Rev. 1, 3 (2003)Google Scholar (describing criticism of U.S. Supreme Court decision in Kansas v. Hendricks allowing for civil commitment of sex offenders after the completion of criminal sentence).
176 See generally Matthew, C. Waxman, Guantánamo, Habeas Corpus, and Standards of Proof: Viewing the Law Through Multiple Lenses, 42 Case W. Res. J. Int’l L. 245 (2009)Google Scholar (discussing procedural and evidentiary rigor in relation to problem of false positives and negatives).
177 See Peter, Baker & Charlie, Savage, Terror Attempt May Hinder Plans to Close Guantánamo, N.Y. Times, Jan. 1, 2010,Google Scholar at A14 (describing Senators McCain, Graham, and Lieberman’s effort to use Christmas-day attempt as reason for blocking potential transfer of Guantánamo detainees to Yemen).
178 See Kathleen T., Rhem, Detainees Living in Varied Conditions at Guantanamo, Am. Forces Press Serv., Feb, 16, 2005, at http://www.defense.gov/news/newsarticle.aspx?id=25882 (quoting Defense Department press release)Google Scholar .
179 See Kellenberger, supra note 2 (concluding that “the legal guidance available to detaining authorities [with respect to transfers] is insufficient. There is an immediate need for a set of workable substantive and procedural rules for protecting the integrity and dignity of those [who are transferred from one authority to another].”).
180 Article 118 provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”
181 See Agreement Relating to Prisoners of War and Civilians Liberated by Forces Operating Under Soviet Command and Forces Operating Under United States of America Command, U.S.-Soviet Union, Art. l, Feb. 11,1945 (“All Soviet citizens liberated by the forces operating under United States command . . . will, without delay after their liberation, be separated from enemy prisoners of war and will be maintained separately from them in camps or points of concentration until they have been handed over to the Soviet... authorities . . . .”).
182 See Delessert, supra note 175, at 151–56 (reporting on Soviet atrocities).
183 The Austrian proposal would have given prisoners of war the right “to apply for their transfer to any other country which is ready to accept them.” Third Geneva Convention Commentary, supra note 26, at 542.
184 Meron, supra note 43, at 254–55. Meron explains that states were concerned that the logical corollary of a right to opt out of repatriation was a duty to offer asylum on the part of the detaining state, a duty no major state was willing to assume. Id. at 255.
185 Such pressure is not unprecedented in modern warfare. See John Quigley, Iran and Iraq and the Obligations to Release and Repatriate Prisoners of War After the Close of Hostilities, 5 Am. U.J. Int’l L. & Pol’y 73, 81 (1989) (describing ICRC’s concerns that Iran and Iraq were pressuring prisoners to oppose repatriation after their war). States may see a propaganda benefit when enemy state prisoners refuse to return to their home states. See id. (explaining that Iran pressured Iraqi prisoners to demonstrate against Iraq for propaganda purposes).
186 See Jan, P. Charmatz & Harold M., Wit, Repatriation of Prisoners of War and the 1949 Geneva Convention, 62 Yale L.J. 391, 391–94 (1953)Google Scholar (describing struggle between the United States and Soviet Union over this issue).
187 Meron, supra note 43, at 256.
188 See Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention: United States of America, annex 1, at 57, UN Doc. CAT/C/48/Add.3 (2005):
U.S. policy is not to transfer a person to a country if it is determined that it is more likely than not that the person will be tortured or, in appropriate cases, that the person has a well-founded fear of persecution and would not be disqualified from persecution protection on criminal- or security-related grounds.
See also Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-277, §2242(a), 112 Stat. 2681-761, 822:
It shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States.
189 See Hum. Rts. Watch, Still at Risk: Diplomatic Assurances no Safeguard Against Torture (2005) (claiming detainees returned from Guantánamo to Russia were mistreated after transfer).
190 For a comprehensive discussion of the treaty and customary international law bases for this norm, see Elihu Lauterpacht & Daniel Bethlehem, The Scope and Content of the Principle of Non-refoulement: Opinion, in Refugee Protection in International Law: Unhcr’s Global Consultations on International Protection 87 (Erika Feller, Volker Turk, & Frances Nicholson eds., 2003).
191 See Michael Byers, Legal Opinion on the December 18, 2005 “Arrangement for the Transfer of Detainees Between the Canadian Forces and the Ministry of Defence of the Islamic Republic of Afghanistan,” at 3 (Apr. 7, 2006), Amnesty Int’l Can. v. Canada,  F.C. 336 (Can.).
192 See Christopher Greenwood, Report: International Law Framework for the Treatment of Persons Detained in Afghanistan by Canadian Forces, at 27, para. 64, Amnesty Int’l Can. v. Canada (arguing that neither the text of common Article 3 nor state practice supports an implied transfer obligation).
193 See Fourth Geneva Convention Commentary, supra note 74, at 266 (explaining that Article 45 does not restrict expulsions of “undesirable foreigners” from state territory).
194 See Emanuela-Chiara, Gillard, There’s No Place Like Home: States’ Obligations in Relation to Transfers of Persons, 90 Int’l Rev. Red Cross 703, 706 (2008)Google Scholar (arguing that Refugee Convention and Torture Convention non-refoulement provisions apply during armed conflicts); Cordula, Droege, Transfers of Detainees: Legal Framework, Non-refoulement and Contemporary Challenges, 90 Int’l Rev. Red Cross 669, 676 (2008)Google Scholar (explaining that lex specialis does not preclude application of human rights non-refoulement protections during armed conflict). But see John, Yoo, Transferring Terrorists, 79 Notre Dame L. Rev. 1183, 1230 (2004)Google Scholar (arguing that Third Geneva Convention provides complete set of treatment protections for prisoners of war precluding application of Torture Convention protections).
195 Convention Relating to the Status of Refugees, Art. 33(1), July 28, 1951, 189 UNTS 150.
196 See id., Art. 1(F):
The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the United Nations.
197 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Art. 3(1), Dec. 10, 1984, S. Treaty Doc.No. 20-100 (1988), 1465 UNTS 85. In its ratification of the Torture Convention in 1990, the United States entered an understanding stating that it interpreted the phrase “substantial grounds for believing” as “if it is more likely than not.” 136 Cong. Rec. 36, 198 (1990) (enacted). The Committee Against Torture has been critical of this understanding. See UN Comm. Against Torture, Consideration of Reports Submitted by States Parties Under Article 19 of the Convention, Conclusions and Recommentations of the Committee Against Torture: United States of America, para. 40, UN Doc. CAT/C/USA/CO/2 (July 25, 2006) (recommending that United States withdraw its reservation).
198 The United States has interpreted Article 3 of the Torture Convention to apply only to transfers originating from the United States. See United States Written Response to Questions Asked by the Committee Against Torture, at 32 (Apr. 28, 2006), available at http://www.state.gOv/g/drl/rls/68554.htm (“[T]he United States, while recognizing that some members of the Committee may disagree, believes that Article 3 of the CAT does not impose obligations on the United States with respect to an individual who is outside the territory of the United States.”). Many international organizations and human rights groups, including the Committee Against Torture, disagree with the territorial limitations identified by the United States. See Robert, M. Chesney, Leaving Guantánamo: The Law of International Detainee Transfers, 40 U. Rich. L. Rev. 657, 673 n.65 (2006)Google Scholar (summarizing opposition to U.S. interpretation).
The United States has nevertheless applied the Torture Convention standard as a policy matter, albeit with some notable exceptions, in transfers from one state to another in the conflict with Al Qaeda. See supra note 189 (describing policy and its failings). The Obama administration recently reaffirmed this policy. See U.S. Dep’t of Justice Press Release No. 09-835, Special Task Force on Interrogations and Transfer Policies Issues Its Recommendations to the President (Aug. 24,2009), at http://www.justice.gov/opa/pr/2009/August/09-ag-835.html (confirming U.S. policy not to transfer detainees to face torture in different scenarios).
199 See UN Human Rights Comm., General Comment No. 20: Replaces General Comment 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment, para. 9, UN Doc. HRI/GEN/1/Rev.l (1992) (“[S]tates parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”).
200 See Soering v. United Kingdom, 161 Eur. Ct. H.R. (ser.A), para. 88 (1989) (interpreting Article 3 to include an implicit obligation not to extradite someone when he could face treatment that, if it occurred in the transferring state, would violate Article 3); Chahal v. United Kingdom, 1996-V Eur. Ct. H.R. 1831, para. 80 (finding non refoulement obligation to be absolute); Saadi v. Italy, App. No. 37201/06, para. 127 (Eur. Ct. H.R. Feb. 28, 2008) (same).
201 See Geneva Convention IV, supra note 1, Art. 49 (“Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of their motive.”). As discussed earlier, detainees may not be protected persons. Nevertheless, it would remain unclear precisely what an occupying power should do with a detainee if he cannot be returned to the control of his home government.
202 See Gillard, supra note 194, at 712–15 (describing the dispute between the United Kingdom, United States, and Committee Against Torture).
203 See id. at 732–36 (describing jurisprudence of European Court of Human Rights, Human Rights Committee, and Committee Against Torture recognizing a procedural element to the non-refoulement right without specifying the content of that right).
204 The D.C. Circuit has held that U.S. federal courts cannot second-guess the executive branch’s determination that a detainee being transferred from Guantánamo Bay will not be tortured after repatriation. See Kiyemba v. Obama, 561 F.3d509, 514–15 (D.C. Cir. 2009) (relying on Supreme Court decision in Munaf v. Geren).Thus, at least for transfers from outside the United States, detainees get no judicial process on the repatriation question.
205 Detainees at Guantanamo Bay have, in many instances, opposed resettlement in their home countries or third countries, sometimes for reasons having nothing to do with fears of mistreatment. See Editorial, The Clock Is Ticking: The White House and Congress Can Still Do Right by the Uighurs, Wash. Post, Oct. 21, 2009, at A26 (explaining that a Uighur detainee refused to be resettled in Palau because that country refused to accept his brother for resettlement).
206 See Gillard, supra note 194, at 707 (regretting lack of clear answers to the practical problems posed by imposition of non-refoulement protections).
207 See Zadvydas v. Davis, 533 U.S. 678, 689 (2001) (using constitutional avoidance doctrine to conclude that Congress had not authorized indefinite detention of aliens pending deportation).
208 See A v. Sec’y of State for the Home Dep’t,  UKHL 56 (holding that indefinite detention of dangerous aliens pending deportation was a disproportionate restriction of European Convention rights).
209 Zadvydas v. Davis, 533 U.S. at 696.
210 See Kiyemba v. Obama, 555 F.3d 1022, 1024 (D.C. Cir. 2009) (describing argument of Chinese national Uighur detainees who claimed right to resettle in the United States). Although the D.C. Circuit rejected this claim, id. at 1028–29, the Supreme Court, 130 S.Ct. 1235 (2010), vacated the decision. on remand, 605 F.3d 1046 (2010), the D.C. Circuit reinstated, with modifications, its earlier holding.
211 For example, Article 3 of the Torture Convention permits transfers in the absence of “substantial grounds” for believing that the individual will be tortured.
212 See Ashley, S. Deeks, , Avoiding Transfers to Torture 33–34 (2008)Google Scholar , available at http://www.cfr.org/ terrorism-and-the-law/avoiding-transfers-torture/p16693 (arguing in favor of assurances that employ robust monitoring mechanisms and “increase incentives to comply and raise the costs of noncompliance”).
213 See, e.g., Hum. Rts. Watch, supra note 189 (arguing that mistreatment of Russian detainees after their transfer from Guantánamo Bay demonstrates ineffectiveness of diplomatic assurances).
214 Prominently cited cases of failures of assurances include the deportation of Maher Arar from the United States to Syria and transfers of Guantánamo detainees to Russia and Tunisia. See Deeks, supra note 212, at 20–21 & n.32 (collating examples of failures of assurances cited by human rights groups).
215 U.S. Dep’t of Justice Press Release No. 09-835, supra note 198.
217 Prevention of Terrorism Act, 2005, c.2 (Eng.).
218 See Sec’y of State for the Home Dept. v. AF,  UKHL 28, para. 59 (relying upon European Court of Human Rights judgment in A v. United Kingdom).
219 Lord Hoffman explained the “dilemma” that this ruling created for the British government: it could either release information that it believed would compromise national security, or allow a potentially dangerous terrorist to go free without restriction. Id., para. 51.
220 See Sec’y of State for the Home Dep’t v. JJ,  UKHL 45, para. 24 (setting aside an eighteen-hour curfew as a deprivation of liberty contrary to European Convention on Human Rights Article 5).
221 See Sec’y of State for the Home Dept. v. AP,  EWCA(Civ.) 731,paras. 86-89 (holding a requirement that detainee relocate from London violated the European Convention on Human Rights).
222 See Fresh Perspectives on the ‘War on Terror’ 343 (Miriam Gani & Penelope Mathew eds., 2008) (describing failures of the control-order system); see also Vijay M. Padmanabhan, Introductory Note to Human Rights Committee and the European Court of Human Rights—Treatment of Terrorism Suspects, 48 ILM 567, 569 (2009) (detailing difficulties that British have faced with use of control orders).
223 See American Service-Members’ Protection Act of 2002, §2006 (mandating that president set up measures to prevent the transfer of classified information to the International Criminal Court for use in investigations, apprehensions, or prosecutions).
224 See supra notes 197–200 and accompanying text.
225 See Saadi, supra note 200, para. 122 (summarizing British position).
226 Kellenberger, supra note 2.
227 John Reid, 20th-century Rules, 21st-century Conflict, Remarks at the Royal United Services Institute for Defence and Security Studies (Apr. 3, 2006), at http://www.responsibilitytoprotect.org/files/UK_Secretaryof State_Speech_Apr_2006.pdf.
228 See Foreign Affairs Comm., supra note 5, para. 85 (“We conclude that... the Geneva Conventions are failing to provide necessary protection because they lack clarity and are out of date. We recommend that the Government work with other signatories to the Geneva Conventions and with the International Committee of the Red Cross to update the Conventions. .. .”).
229 See Stigall et al., supra note 13, at 1378 n.47 (describing collapse of the Harvard Process).
230 The International Court of Justice has recognized the importance of “specially affected States” in determining when a practice may amount to customary international law. North Sea Continental Shelf Cases (F.R.G./Den.; F.R.G./Neth.), 1969 ICJ Rep. 3, 42 (Feb. 20).
231 See Kenneth Anderson, The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War, 4 Chi. J. Int’l L. 445, 448 (2003) (explaining that nongovernmental organizations, unlike affected states, have “no security interest to defend” and are therefore “without any pressure to take the real world into account”).
232 The failure to account for these interests is the cause of instruments like the Ottawa Convention, which regulates landmines, and to which most important war-fighting states are not parties. See id. at 452–53 (noting limited worth of Ottawa Convention because critical states, such as the United States, are not parties).
233 The ICRC recently announced its intent to begin bilateral consultations with states on areas where IHL needs further clarification and development, and to address the subject at the next International Conference of the Red Cross and Red Crescent. See Kellenberger, supra note 2. These consultations could play an important role in developing the law in the directions we are suggesting.