Yes, We Can: The Authority to Detain as Customary International Law

• Author: Major Robert E. Barnsby
• Pages: 03

YES, WE CAN: THE AUTHORITY TO DETAIN AS CUSTOMARY INTERNATIONAL LAW

MAJOR ROBERT E. BARNSBY*

Many commentators assert customary international law as they would like it to be, rather than as it actually is.1

I. Introduction

Efforts to combat terrorism in the wake of September 11th reveal a "central legal challenge" to the "legitimate preventive incapacitation of uniformless terrorists who have the capacity to inflict mass casualties and enormous economic harms and who thus must be stopped before they act."2 This necessary objective is a challenge precisely because modern terrorism operates in a manner that transcends the paradigm of uniformed opposing forces envisioned by the Geneva Conventions. Even though

the contemporary operational environment poses practical considerations not directly addressed within treaties or documented international laws, armed forces must nevertheless detain individuals who pose a threat in the context of armed conflict. This article will explore the customary international law (CIL)3 sources of the initial right to detain individuals who pose such a threat.

Most international law scholars agree that CIL establishes standards for treatment of individuals detained by an armed force.4 However, the logical precursor to these treatment principles-a rule describing a state's initial authority to lawfully detain individuals-does not currently exist as CIL.5 Even in the present-day Global War on Terror (GWOT), where persons are regularly detained, "an increasing number of legal experts now acknowledge . . . the legal framework for conflicts with transnational terrorists like al Qaida is not clear."6 Because the "Geneva Conventions were designed for traditional armed conflicts between States and their uniformed military forces, and do not provide all the answers for detention of persons in conflicts between a State and a transnational terrorist group[,]"7 it is necessary to determine whether CIL adequately fills this legal gap.

This article argues that, regardless of the type of conflict in which states are engaged,8 the authority to detain individuals rises to the level of

CIL. 9 In reaching this conclusion, Parts II and III of this article trace the background and common threads connecting detention law through various types of conflict, as seen in Additional Protocol I10 and II11 of the Geneva Conventions (AP I & II) and other recognized instruments of CIL.12 Next, Part IV bridges the traditional gap between international and non-international armed conflict by demonstrating states' use of the "fundamental and accepted tool of detention in war."13 Part V lays out a comprehensive test to determine whether the authority to detain rises to the level of CIL. This test includes not only the typical "state practice" and "opinio juris" prongs of CIL,14 but also lesser known-yet equally important-aspects of CIL, including "specially affected" states (describing states with more practice than others in a particular aspect of armed conflict)15 and "permissive rules" (describing state actions that are allowed, but not required, in armed conflict).16 Lesser-known concepts like these are particularly helpful in evaluating the status of initial detention because they offer additional uncommon insights that test the "authority to detain" premise and arrive at the simple, universal rule of CIL.

To answer the question of whether the authority to detain individuals rises to the level of CIL, this article adopts the perspective of a comprehensive study by the International Committee of the Red Cross (ICRC). While this study (ICRC Study) ostensibly codifies the rules and practice of internationally-recognized CIL, it does not contemplate whether the detention authority envisioned by this article rises to the level of CIL.17 However, the ICRC Study gives valuable methods for testing and ultimately concluding what may constitute CIL.18 These methods are particularly useful when viewed jointly with the common threads and fundamental command authority aspects of detention law. Part VI analogizes the rule proposed in this article to uncontroverted CIL through three critical rules of detention to demonstrate that the authority to detain must logically exist in CIL.19

Finally, Part VII addresses various counterarguments to the notion that the authority to detain individuals during conflict rises to CIL. Ultimately, in analyzing state practice in this critical area of international law, this article concludes that existing CIL does provide a legal basis for detention of individuals not falling neatly under the Third Geneva Convention (GC III)20 as Prisoners of War (POWs)21 or the Fourth

Geneva Convention (GC IV)22 as civilians.23 In this way, the article is useful for its implications in the GWOT and beyond. Above all, it will assist in enabling states to approach lawfully "the central legal challenge of modern terrorism."24

II. Background

Treaty law contemplates the detention of individuals during armed conflict.25 However, the initial authority to detain is not explicitly stated in any body of law. Nevertheless, this article argues that this initial authority does exist in CIL. To properly assess this article's claim, one must first examine current treaty law in the detention arena. Treaty law can assist in determining CIL because treaties "help shed light on how states view certain rules of international law."26 To further establish a background for analysis, this Part outlines the ability of CIL to function as a gap-filler for existing detention law. In addition, this Part describes in detail the landmark 2005 ICRC Study, the conclusions of which must weigh heavily in any discussion relating to the subject of CIL.

1. Gaps in Detention Law

   During armed conflict, a state27 may invariably need to detain individuals who pose a threat to its forces. For this reason, each state must seek a legal framework under which it can detain such individuals. Traditional law of war, including "[t]reaty law, principally reflected in the Geneva Conventions of 1949 and their Additional Protocols of 1977,

   is well developed and covers many aspects of warfare."28 Specifically, these treaties address the detention, or internment,29 of individuals during times of conflict. For example, GC III provides protections for those individuals detained by enemy forces as POWs.30 Additionally, GC IV outlines rules for treatment of civilians who are interned, either for their own protection or as a security threat,31 during times of conflict.32

   However, the traditional law of war codified in the Geneva Conventions is inadequate in certain types of conflicts not falling neatly into the international/non-international armed conflict distinction described below.33 For example, the U.S. Government's view of the members of transnational terror organizations in the GWOT is that they do not qualify for the protections of either GC III as POWs or GC IV as civilians.34 In the U.S. Government's view, GC III only covers individuals who follow the law of war and other listed requirements for protection under Article 4 of GC III.35 Consequently, because al Qaida,

   the Taliban, and other terrorist groups do not ostensibly follow these requirements, they do not qualify for protection under GC III.36 Further, because the same individuals are often more than mere civilian bystanders-taking a direct part in hostilities, in contravention of the requirements of GC IV-they do not qualify for protection under the Fourth Geneva Convention.37 Thus, a gap in coverage exists, according to the U.S. Government's view.38

   Gaps in legal coverage can also result from "treaties [that] apply only to the states that have ratified them."39 "Although the four Geneva Conventions of 1949 have been universally ratified, the same is not true for other treaties of humanitarian law, such as the Additional Protocols."40 Nevertheless, the portions of these treaties for which there is universal agreement (i.e., from which countries have not persistently

   objected from the time of a rule's inception),41 and on which states act out of a sense of legal obligation,42 are considered binding as instruments of CIL. For example, the United States did not ratify Additional Protocol I, but "expressed support for many of the principles set forth in that Protocol and believed that many of them should become customary law."43 It is therefore necessary "to determine which rules of international humanitarian law are part of customary international law and therefore applicable to all parties to a conflict, regardless of their treaty obligations."44

   In the detention arena it is particularly important to determine which rules constitute CIL, because treaty law does not provide full legal coverage. Yet, in the area of state practice, CIL is not always clear. "For example, although the terms 'combatants' and 'civilians' are clearly defined in international armed conflicts, [state] practice is ambiguous as to whether members of armed opposition groups are considered members of armed forces or civilians in non-international armed conflicts."45 The next section explores the concept of state practice, which is critical for a particular rule of armed conflict to rise to the level of CIL and fill the legal gap described herein.

2. Customary International Law as Gap-Filler

   Customary International Law maintains functional significance in modern times, in part, because "treaty law does not cover the entire spectrum of [the Laws of War]. Non-international armed conflicts, for example, are subject to far fewer treaty provisions than international armed conflict. Hence . . . 'customary law is of immense significance.'"46 The International Court of Justice defines CIL as "a

   general practice accepted as law."47 Legally, CIL is persuasive because "[r]ules of customary international humanitarian law . . . , sometimes referred to as 'general' international law, bind all States and, where relevant, all parties to...