The Second Annual Solf-Warren Lecture in International and Operational Law

• Author: Professor Ryan Goodman
• Pages: 07

THE SECOND ANNUAL SOLF-WARREN LECTURE IN INTERNATIONAL AND OPERATIONAL LAW†

PROFESSOR RYAN GOODMAN*

Thank you very much for that introduction. I want to begin by saying how special an honor and pleasure it is for me to be here with you and engage you on this topic and discussion. I've thought very specifically about the ways in which it's an honor and pleasure for me. First, I regard you as an exceptional audience. I'm deeply respectful and grateful for your service to the country, and I'm also keenly aware that you have been thinking about these topics and will be thinking about these topics a lot, probably much more than me and especially collectively by magnitudes more than me. So I'm very much looking forward to our conversation after the presentation. It's also an honor and a privilege for me to be here given that this distinguished lecture series is in the name of Colonels Solf and Warren, and it's also humbling given the extraordinary individuals who have been invited to speak on prior occasions of this

distinguished lecture series. I also want to express my gratitude for the hospitality that's been shown to me by the faculty, staff, and students when I had to postpone this lecture due to an unforeseen family illness. When I received the re-invitation to come, at a later occasion, there was a paranoid part of me that thought it might be a joke given that we had scheduled this for April Fool's Day. So it's a relief to actually see that the auditorium has people in it besides myself.

The discussion that I want to engage in with you today is the question of the detention of civilians in the armed conflict with al Qaeda, or more particularly, the question concerning which civilians can be detained in the armed conflict with al Qaeda. It's obviously an extraordinarily timely topic, more timely than I had even imagined when the date for this event was scheduled. What's taken place, just to make sure that we're all on the same page, is that the Supreme Court has expressed its interest in deciding the matter, if it remains controverted, by having granted cert in the Al-Marri1 case. The Court subsequently dismissed the case as moot, but the Justices are presumably keeping a watchful eye on the developments that take place. Also since January there have been congressional bills introduced that would redefine the application of detention authority with respect to enemy combatants whether or not that term is used, and the administration is now engaged in a multiagency review of the question. Just a couple of weeks ago, the Department of Justice submitted a memo in the In re Guantanamo Detention Litigation staking out its preliminary position on this topic. I will talk to you about my paper on which this presentation is based,2 and I will also incorporate these more recent events.

I have organized the presentation in three parts. The first part outlines the long-standing law of armed conflict framework. In other words, I want to examine the regime that constitutes the legal background against which post-9/11 policies, practices, and representations were made by the Government, by civil society actors, and others. The second part of the presentation describes and identifies misunderstandings or misconceptions of that legal framework that have occurred over the last eight years, on the part of the Executive Branch, members of Congress, some federal judges, and litigators. So in some ways no group escapes that kind of a challenge or critique. The third

part of the lecture describes the consequences or implications of those misunderstandings.

First, let's look at the structure of the existing framework that long predated 9/11. Before I turn to the table, I should say a few words about the material field of application with respect to noninternational armed conflicts. I accept and take as granted that we are currently in an armed conflict with al Qaeda which is governed at least by Common Article 3;3

all three branches of the U.S. Government have agreed to that proposition, and we can open it up to discussion if you'd like to, but I'm taking it as an accepted premise for the purpose of this initial presentation.

I should also note that I naturally understand that status-based categories, like prisoners of war, do not apply in noninternational armed conflicts, and therefore I'll generally refer to classes of actions and classes of individuals, such as civilians or direct participation in armed conflict, which have referents in conventional sources like Common Article 34 and Additional Protocol II5 to the Geneva Conventions, but, as you can tell from the table, I will refer to part of the legal regime that applies to international armed conflict as well. And I want to give you three reasons why I think it's relevant that we consider the legal regime applicable in international armed conflict before, then transposing it or applying it to the noninternational armed conflict with al Qaeda. This is especially important because the Department of Justice memo that was submitted in recent litigation in fact states that such an analytic move is a predicate for the position of the administration.

Three reasons justify that application. The first is a reactive reason; simply put, many commentators and practitioners have applied the law of international armed conflict to the conflict with al Qaeda by analogy. It's a prevalent practice that's used, for example, in debates about whether or not we can hold fighters until the cessation of hostilities and with or without access to an attorney. The analog or the referent in those discussions is often international armed conflict. And if that's a prevalent mode of discourse or argument, then we at least need to

understand better the referent, which is the law of international armed conflict, to evaluate those kinds of claims.

A second reason is an affirmative one. On my view, it's valid to use the law of international armed conflict as an analogy. In fact, if we have to think of an analogy, it's the closest fit or closest approximation- especially the Fourth Geneva Convention6-for questions of who may be detained and what types of activities on the part of civilians are subject to detention. That is, the rules contained in the Civilians Convention, are the closest analog that we have and therefore the best reference point for trying to approximate what the law of armed conflict should look like or will look like when it applies in a noninternational scenario like the conflict with al Qaeda.

The third reason is the strongest, and it's an affirmative argument not just by way of analogy. The argument here is that the law in international armed conflict establishes an outer boundary of permissive action. The idea is fairly simple, which is that the law of armed conflict uniformly involves more exacting, more restrictive obligations on parties in international armed conflict than in noninternational armed conflict. We could even state this point as a maxim: if states have authority to engage in particular practices in an international armed conflict, they a fortiori possess the authority to undertake the same practices in noninternational armed conflict, or simply put, whatever is permitted in international armed conflict is permitted in noninternational armed conflict. Therefore, if the law of armed conflict permits a state to detain civilians in international armed conflict, the law of armed conflict surely permits states to detain civilians in a noninternational armed conflict. The same logic does not apply to prohibitions or proscriptive rules: it does not follow that if the law of armed conflict forbids states from engaging in a practice in international armed conflict that the law would also forbid states from engaging in that practice in noninternational armed conflict. Nevertheless, I think we'll see in our discussion that the permissive rules are sufficient to answer many of our questions, and the remaining open questions concerning what else is forbidden will be answered by other ordinary sources of international legal authority that have addressed the question whether a party can preventively detain civilians who pose no security threat. So those remaining questions, in the end, will be fairly easy to answer.

The table that I've created tries to make sense of the existing legal framework.

Actions Permitted by the Law of Armed Conflict

COERCIVE MEASURES

I.

Targeting

II.

Military

Trial

III.

Detention

1. Members of regular armed forces and irregular forces that meet Geneva Convention III or Additional Protocol I criteria

   (1)

   YES

   (2)

   YES

   (3)

   YES

2. DPH: Direct participants in hostilities ("unlawful combatants")

   (4)

   YES

   (5)

   YES

   (6)

   YES

   SUBJECTS

3. IPH: Indirect participants in hostilities (security threats)

   (7) NO

   (8)

   NO?

   (9)

   YES

4. NPH: Nonparticipan ts in hostilities ("innocent civilians")

   (10) NO

   (11) NO?

   (12) NO

   The substantive rules reflected in the table are meant to reflect the structure of the law of armed conflict with respect to the detention of civilians, in particular, as well as interactions or relationships with other elements of the law of armed conflict regime. In that respect it's useful

   to distinguish three types of coercive measures. The table thus distinguishes targeting, military trial, and detention across four different groups of individuals. Group A includes members of regular armed forces and irregular forces that meet either Geneva Convention III7 or Additional Protocol I8 criteria, with the obvious caveat that the U.S. Government has not ratified Protocol I9 and considers many of its provisions, especially these, not reflective of customary international law. But with that caveat, we can still usefully proceed because the U.S. Government would just place some of those individuals in Group "B"; and as you can tell from the rows for Groups "B" and "A," it actually makes no difference. The Group "B" category includes direct participants in hostilities...