The geography of the battlefield: a framework for detention and targeting outside the "hot" conflict zone.

• Author: Daskal, Jennifer C.
• Position: II. A New Approach: Zones of Active Hostilities and Beyond B. Current State Practice through Conclusion, with footnotes, p. 1198-1234

2. Current State Practice

   Since 2006, the United States has, at least implicitly and as a matter of policy, distinguished between zones of active hostilities and elsewhere. (100) The Bush Administration initially placed a significant number of off-the-battlefield captures into long-term law-of-war detention. Detainees reportedly included persons captured in places as far-flung from the Afghanistan battlefield as Bosnia, Mauritania, and Thailand--as well as the United States. (101) These off-the-battlefield detentions turned out to be highly controversial. They have been the subject of numerous court challenges, international criticism, and endless commentary. (102) Moreover, they raise difficult questions about repatriation--issues with which the United States continues to struggle. (103)

   Beginning in September 2006, the Bush Administration initiated a shift in policy. Largely in response to the Supreme Court's ruling in Hamdan v. Rumsfeld, (104) President Bush announced that he was closing CIA-run black sites, at least temporarily, and ordered the transfer of fourteen long-term CIA detainees to Guantanamo. (105) Subsequently, the number of out-of-battlefield captures transferred to Guantanamo fell to a mere three captures in 2007 (106) and only one capture in 2008). (107) All were described as high-value targets based on alleged links to al Qaeda leadership or involvement in specific terrorist attacks. (108)

   On January 22, 2009, two days after taking office, President Obama declared the permanent shuttering of CIA black sites as well as his plan to close the detention center at Guantanamo Bay. (109) While Guantanamo remains open today, the Obama Administration has committed not to transfer any additional detainees there. (110) Since 2009, Warsame is the only known case of an out-of-battlefield detainee being placed in anything other than very short-term military custody. (111)

   Some have argued that the low number of out-of-battlefield detentions is due in part to the lack of viable locations for holding detainees. But while that may be a factor, it seems that the difficulty of apprehension, the high diplomatic, reputational, and transactional costs of such detentions, and the relative effectiveness of the criminal justice system in responding to threats, are equal--if not more--important factors in limiting the reliance on law-of-war detention. (112)

   As out-of-battlefield detentions have declined, targeted killings reportedly have increased dramatically. (113) The vast majority of these killings appear to have been concentrated in northwest Pakistan--an area that most concede is a spillover of the zone of active hostilities in Afghanistan. (114) A growing number of strikes reportedly have been launched in Yemen as well. (115)

   The Obama Administration also appears to have adopted a distinction between Afghanistan and elsewhere in setting the rules for these strikes. While top administration officials have argued that their military authorities are not restricted to the "hot" battlefield of Afghanistan, they also have argued that "outside of Afghanistan and Iraq" targets are focused on those "who are a threat to the United States, whose removal would cause a significant--even if only temporary--disruption of the plans and capabilities of al-Qa'ida and its associated forces." (116) Whether or not one agrees with the standard employed, it is clear that the administration itself recognizes a distinction between Afghanistan (and, earlier, Iraq) and other areas embroiled in the conflict with al Qaeda. Procedural rules in terms of who must authorize the strike also reportedly vary depending on whether one is operating within Afghanistan and the border regions of Pakistan or elsewhere. (117) While there are good reasons to demand additional safeguards, the United States' own actions already reflect the importance and value of distinguishing between zones of active hostilities and other areas.

   3. THE SPECIFICS: DEFINING THE ZONES AND SETTING THE STANDARDS

   Given the basis for distinguishing between zones of active hostilities and elsewhere, this Part provides the specifics of the proposed approach. It first lays out criteria for distinguishing between a zone of active hostilities and elsewhere by drawing on both existing law and the normative justifications for the distinctions. It then describes the proposed substantive and procedural standards that ought to apply, consistent with the goals of protecting individual liberty, peacetime institutions, and the fundamental security interests of the state.

   This task is both necessary and inherently difficult. It is an attempt to develop a set of clear standards, or on-off triggers, for a situation in which the gravity, imminence, and likelihood of a threat are dynamic, uncertain, and difficult to categorize. My aim is to propose an initial set of standards that will regulate the use of force and detention without charge outside a zone of active hostilities, consistent with the state's legitimate security needs. The expectation is that debate and discussion will help develop and refine the details over time.

1. The Zone of Active Hostilities

   Commentary, political discourse, court rulings, and academic literature are rife with references to the distinction between the so-called "hot battlefield" and elsewhere. Yet despite the salience of this distinction, there is no commonly understood definition of a "hot battlefield," let alone a common term applied by all. (118) In what follows, I briefly survey the relevant treaty and case law and offer a working definition of what I call the "zone of active hostilities." This definition takes into account such sources of law as well as the normative and practical reasons for this distinction.

   1. Treaty and Case Law

      While not explicitly articulated, the notion of a distinct zone of active hostilities where fighting is underway is implicit in treaty law. The Geneva Conventions, for example, specify that prisoners of war and internees must be moved away from the "combat zone" in order to keep them out of danger, (119) and that belligerent parties must conduct searches for the dead and wounded left on the "battlefield." (120) While there are no explicit definitions provided, the context suggests that these terms refer to those areas where fighting is currently taking place or very likely to occur. The related term "zones of military operations," which is spelled out in a bit more detail in the Commentaries to the Geneva Conventions, is described as covering those areas where there is actual or planned troop movement, even if no active fighting. (121)

      In a variety of contexts, U.S. courts also have opined on whether certain activities fall within or outside of a zone of active hostilities, indicating that the existence and quantity of fighting forces are key. In Hamdi v. Rumfeld, for example, the Supreme Court observed that the large number of troops on the ground in Afghanistan supported the finding that the United States was involved in "[a]ctive combat" there. (122) A panel of the D.C. Circuit subsequently noted that the ongoing military campaign by U.S. forces, the attacks against U.S. forces by the Taliban and al Qaeda, the casualties U.S. personnel incurred, and the presence of other non-U.S. troops under NATO command supported its finding that Afghanistan was "a theater of active military combat." (123) Previous cases have similarly used the presence of fighting forces, the actual engagement of opposing forces, and casualty counts to identify a theater of active conflict. (124)

      Conversely, U.S. courts have often assumed that areas in which there is no active fighting between armed entities fall outside of the zone of active hostilities. Thus, the Al-Marri and Padilla litigations were premised on the notion that the two men were outside of the zone of active hostilities when taken into custody in the United States. (125) The central issue in those cases was how much this distinction mattered. (126) The D.C. Circuit in Al Maqaleh similarly distinguished Afghanistan--defined as part of "the theater of active military combat"--from Guantanamo--described as outside of this "theater of war"--presumably because of the absence of active fighting there. (127) In the context of the Guantanamo habeas litigation, D.C. District Court judges have at various times also described Saudi Arabia, Gambia, Zambia, Bosnia, Pakistan, and Thailand as outside an active battle zone. (128)

      In defining what constitutes a conflict in the first place, international courts have similarly looked at the existence, duration, and intensity of the actual fighting. Specifically, in Tadic, the ICTY defined a noninternational armed conflict as involving "protracted armed violence between governmental authorities and organized armed groups." (129) In subsequent cases, the ICTY described the term "protracted armed violence" as turning on the intensity of the violence and encompassing considerations such as "the number, duration, and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of weapons fired; the number of persons and type of forces partaking in the fighting; the number of casualties; [and] the extent of material destruction." (130) Security Council attention is also deemed relevant. (131)

      The International Committee of the Red Cross (ICRC) has similarly defined noninternational armed conflicts as "protracted armed confrontations" that involve a "minimum level of intensity." (132)

   2. Identifying the Zone

      Consistent with treaty and case law, overt and sustained fighting are key factors in identifying a zone of active hostilities. Specifically, the fighting must be of sufficient duration and intensity to create the exigent circumstances that justify application of extraordinary war authorities, to put civilians on notice, and to justify permissive evidentiary presumptions regarding the...