Same or different? Bush and Obama administration approaches to fighting terrorists.

Position:International Law in a Time of Change - Proceedings of the 104th Annual Meeting of the American Society of International Law - Discussion

This panel was convened at 10:45 a.m., Friday, March 26, by its moderator, Gabor Rona of Human Rights First, who introduced the panelists: Marco Sassoli of the University of Geneva; Diane Marie Amann of the University of California, Davis; P. Sabin Willett of Bingham McCutchen; John B. Bellinger III of Arnold & Porter; and Brad Wiegmann of the U.S. Department of Justice, National Security Division. *

* P. Sabin Willett, John B. Bellinger III, and Brad Wiegmann did not submit remarks for the Proceedings.


Before this panel can compare the approaches of the Bush and the Obama administrations toward fighting terrorists, and discuss whether they conform to international law, we must clarify the legal framework. In this respect (and contrary to such important humanitarian issues as the humane treatment of detainees and the abolition of secret detention), both administrations have, for the time being, taken the same approach. In my view, this approach is not correct under international law. If it were, the attitude of the Obama administration concerning the admissibility of detaining terrorists and the trial of terrorists would be correct.

Following September 11, 2001, the Bush Administration declared that the United States was engaged in a global "war on terror." (1) That "war" not only included a military campaign against Afghanistan, but also attacks and arrests directed at suspected members of Al Qaeda or other "terrorists" elsewhere around the worId. The initial line of argument made by the Bush Administration to justify indefinite detention without trial of suspected terrorists in Guantanamo and in other, often undisclosed locations may be summed up as follows. (2) The United States was engaged in an international armed conflict--the "war on terror"--against a nonstate actor (AI Qaeda) and its associates. While the Bush Administration claimed in this conflict all the prerogatives conferred by the laws of armed conflict upon a party to an international armed conflict, in particular to attack "unlawful enemy combatants" without necessarily trying to arrest them, and to detain them without any judicial decision, the Administration denied these individuals the protections of most of those laws, arguing that the detentions were governed neither by the rules applying to combatants nor by those applicable to civilians. The Administration argued that no trial or judicial decision was needed to detain such "unlawful combatants" until the end of active hostilities in the "war on terror."

In 2006 the U.S. Supreme Court held that every armed conflict which "does not involve a clash between nations" is not of an international character, and that the latter phrase "bears its literal meaning." (3) In 2008 the Court granted detainees in Guantanamo habeas corpus rights, (4) but both the Bush and the Obama Administrations argue that this does not apply elsewhere, e.g., in Bagram airbase detention facility in Afghanistan.

The Obama Administration has abandoned the terms "war on terror" and "unlawful combatants." While its position remains under review, the Administration nevertheless continues to argue that an armed conflict exists (and that the laws of war apply) between the United States, on the one hand, and Al Qaeda, the Taliban, and "associated" forces, on the other hand. While it does not explicitly classify the legal character of this conflict, it applies, at least by analogy, the laws of international armed conflicts. It considers that those who provide "substantial support" to those enemies may be attacked and detained under the laws of war, just as enemy combatants may be attacked and detained under the law of international armed conflicts. (5)

I consider that what I prefer to call the international humanitarian law (IHL) of non-international armed conflicts does not have a world-wide geographical field of application. Non-international armed conflicts exist in Afghanistan and in Pakistan, but not elsewhere. Moreover, even if and where IHL of non-international armed conflicts applies, I think enemy fighters may not be detained in the same manner as combatants in international armed conflicts, without any individual decision or procedural safeguard until the end of active hostilities. Rather, I consider than they may be detained only under the much more elaborate procedural and substantive requirements of international human rights law (IHRL). (6) IHL treaty rules applicable to non-international armed conflict prescribe how persons deprived of liberty for reasons related to the armed conflict must be treated, (7) and they prescribe judicial guarantees for those who are prosecuted for offenses relating to the conflict (such as individual nonstate actor participation in the conflict, which always constitutes a crime under the domestic law of the state affected by the conflict). (8) Those treaty rules do not clarify for which reasons and by which procedures a person may be interned for security reasons. (9)

There are several arguments against an analogy to the regime of IHL of international armed conflicts on the question of detention of fighters. First, it is more difficult at the time of arrest to identify fighters (i.e., members of an insurgent armed group with a continuous fighting function) than to identify soldiers of armed forces of another state. Many non-international armed conflicts are fought against or between groups that are not well structured. Positive IHL of non-international armed conflicts does not even prescribe explicitly, as the law of international armed conflicts does, that fighters must distinguish themselves from the civilian population. Persons join and quit armed groups in an informal way, while members in governmental armed forces are incorporated and formally dismissed. As armed groups are inevitably illegal, their members will do their best not to appear as such. The correct classification can be made by a tribunal, which will only have its say if the arrested person is not treated by analogy to prisoners of war (POWs) in an international armed conflict. Indeed, POWs may be...

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