What's Your Advice, Counsel? From Distinction to Detention, Financial Support to Ground Support, and Everything in Between.

• Position: Special Issue: The Law of Armed Conflict

INTRODUCTION

The following is an informal summary of the discussions that took place in the Workshop Session of the 2nd IDF International Conference on the Law of Armed Conflict, held April 25-27, 2017. In this session, conference participants were given practical scenarios on a range of issues for consideration. (1) In adherence with the Chatham House Rule, the summary is presented without reference to the identity or affiliation of the participants. (2)

SCENARIO 1; QUESTIONING AND DETENTION

State A (the State) is engaged in an armed conflict with an organized armed group (the OAG) outside the borders of State A. During this operation, the State ground forces are required to maneuver in the outskirts of the village "Valhalla." According to intelligence reports, both civilians and OAG fighters are likely to be present in the village when State forces pass through; the OAG fighters in the village are in fortified positions, well concealed amongst civilian objects (OAG positions). State intelligence is unable to provide the precise locations of these positions; however, it is reasonably certain that they are located within the "Kia" neighborhood and in the southern and western outskirts of Valhalla.

The ground forces maneuver towards the outskirts of the village. Despite the State's efforts in warning the civilian population to vacate the area (including dropping leaflets), intelligence reports assess that approximately 20 percent of the civilian population has remained in Valhalla.

In light of this, the commanding officer (CO) of the ground forces decides to change his maneuvering route towards the eastern side of Valhalla. Consequently, the CO wants to order his forces to stop and question every male who appears to be aged 16-50, so as to inquire if any of them are affiliated with the OAG, as well as to gather intelligence on the OAG positions.

Question 1: What legal advice do you give to the CO regarding this order? Would your advice change if such questioning would require holding the persons for a number of hours in order to properly question them? Would your advice change if the questioning was to inquire to where the civilian population has evacuated?

The discussion considered the legal basis and legal threshold for the deprivation of liberty of persons in an armed conflict, and whether there is a distinction between an international armed conflict (IAC) and non-international armed conflict (NIAC) in this regard.

There was broad agreement that it would be lawful for the CO to order his forces to stop and question every male who appears to be aged 16-50 and that such questioning should be limited to the shortest period of time possible in the circumstances. No precise period of time was specified, with the acknowledgement that strict predetermined timeframes cannot accommodate the different circumstances of each specific case.

There were various suggestions as to the legal basis for such action, some of which were said to also express a standard for carrying out detention during hostilities. These included a commander's inherent authority to detain persons during hostilities; the existence of a military necessity; this not being a case of arbitrary detention; and the ability to take necessary security measures pursuant to Article 27 of the Geneva Convention (GC) IV (in the case that the operation was taking place as part of an IAC in which the treaty would apply). One participant also mentioned in this regard the need to clarify the status of suspected persons in the context of Article 5 of GC III (also applicable only in IACs).

One participant added that the fact that the civilian population in the area had already been warned and had been asked to leave raises a general suspicion about the remaining persons in a way that justifies their questioning.

The participants were not concerned about the fact that the questioning was solely for the purpose of intelligence gathering, so long as it was limited to the shortest period of time possible in the circumstances. At the same time, they agreed that the persons questioned are not obliged to answer the questions they are asked and that they must not be tortured.

One of the participants, who maintained that that there is an inherent authority to detain persons during hostilities, recalled the contemporary legal dispute regarding the existence of such authority in non-international armed conflicts (NIACs), in case the scenario indeed described an NIAC. This participant, however, argued that it is doubtful that the actions described in the scenario amount to "detention." Another participant suggested that the scenario involved "tactical questioning," short of "detention."

Question 2: During questioning of the aforementioned persons, one of them admits that he is a member of the OAG. Consequently, the possibility of long term internment is considered. What legal advice do you give to the CO?

On this issue, the participants considered, more specifically, the legal basis for long term interment in IAC and in NIAC.

Regarding an IAC, the participants agreed that there is no difficulty in internment on the basis of one of the applicable legal sources that address this issue, namely, GC IV, GC III, or Articles 33-34 of the Additional Protocol 1 (API) (for states party to API).

With respect to an NIAC, it was noted that internment is the subject of a contemporary legal controversy. Two participants maintained that it is permissible to intern a person on security grounds until the end of hostilities, pursuant to a procedure of periodic review. Another participant referred to the provisions in GC IV regulating internment, suggesting that they may be applied to the scenario by way of an analogy. No participants suggested that the action in the scenario is altogether prohibited.

Question 3a: During questioning of one of the civilians, Roth, it emerges that he himself has not taken part in any of the OAG's activities, however his relative, who is a member of the OAG, has revealed to him the locations of OAG positions. The CO wants to transfer Roth to a command and control center, located on the border of State A, so that he may indicate to intelligence officers on a map the locations of the OAG positions. What legal advice do you give to the CO?

Question 3b: The CO wants Roth to accompany the forces and point out the locations of the OAG positions. What legal advice do you give to the CO?

Discussion on this issue highlighted the question whether intelligence gathering is a lawful reason for temporarily holding civilians, and what limits may exist therein, particularly with regard to what the person is being asked to do or provide.

The participants did not consider the questioning of a civilian for intelligence-gathering purposes to present a difficulty as a matter of principle. Consequently, most of the discussion focused on possible situations where Roth is being coerced and/or put into risk while accompanying the soldiers and pointing out OAG positions, and whether this would affect the legality of the actions.

With regard to coercion, some participants raised the factual question of whether Roth is being coerced or rather agrees (or at least does not object) to accompanying the soldiers. One participant opined that physical resistance is where the line should be drawn, but others refrained from determining at what point the force's action would amount to illegitimate coercion.

With regard to risk, one participant indicated that there is no difficulty in principle with the fact that Roth is being held by troops, even though they are legitimate military objectives and thus prone to attack, seeing as sending Roth to the command and control center would also mean that he would be held by troops there. One participant assumed that taking Roth to the battlefield would itself put him at an undue risk and therefore cannot be done. Another participant noted that the fact Roth is assisting the force might even make him a direct participant in hostilities and thus prone to attack, but that international law does not prohibit such a result. No agreed-upon conclusions were reached in this regard.

SCENARIO 2: ORGANIZED ARMED GROUPS

The Intelligence Corps of State A (the State) is in the process of gathering information regarding an organization belonging to non-state actor B (the Organization). You, as the State's military legal officer, are presented with an intelligence report on the Organization, including its organizational structure.

The intelligence report explains that the Organization is comprised of two branches. The first can be easily defined as a...