Analogies in Detentions: Distorting the Balance Between Military Necessity and Humanity

Abstract

Sixteen years after the 9/11 attacks, the United States’ detention authority in the conflict against Al Qaeda, the Taliban, and associated forces is as its zenith. Congress and the federal courts have endorsed the Executive’s position that the 2001 Authorization for Use of Military Force (AUMF), as informed by the laws of war, permits the President to detain individuals who were part of, or substantially supported, such enemy armed groups until the end of the ongoing armed conflict. To support this position, the United States has argued that certain provisions of the Third Geneva Convention on Prisoners of War (POWs), a treaty that applies only to international armed conflicts (IACs), apply by analogy to the current non-international armed conflict (NIAC). The result is a sweeping authority to indefinitely detain individuals who may never have participated in hostilities against the United States and who may not currently pose any threat to the United States or its allies. This status-based theory of detention is unsustainable in light of the circumstances of the ongoing conflict. The conflict against Al Qaeda and its various off-shoots has proven to be entirely unlike the IACs that informed the development of the laws of war. The initial campaign against core Al Qaeda, which planned and implemented the 9/11 attacks, and the Taliban government that harbored it, has morphed into a transnational conflict against various terrorist groups like the Islamic State of Iraq and the Levant (ISIL) that did not exist in 2001. This conflict is likely to continue for the foreseeable future, and the United States’ legal positions must evolve to address the challenges presented by this type of modern conflict. This Article makes three significant contributions to the robust scholarship and debate on detentions in NIAC. First, it explains the pitfalls of applying certain IAC rules by analogy to NIACs. In particular, this analogy approach can disrupt the careful balance between the two fundamental principles of the laws of war that bind States in all armed conflicts: military necessity and humanity. Second, it shows how the United States’ use of the Third Geneva Convention on Prisoners of War to justify, by analogy, the indefinite detention of non-State actors in NIACs has distorted this balance, rendering its detention practice unsustainable as a matter of international law. Importantly, military necessity permits the detention of POWs for the duration of an international armed conflict only because they have a legal obligation to return to the battlefield if released, rendering periodic threat reviews unnecessary. Non-State actors, by contrast, do not have a similar legal obligation, which makes it problematic to assume their threat for the duration of the hostilities. Third, this Article proposes several realistic reforms that the United States can implement to ensure its legal theory for detentions is fully consistent with international law. Rather than applying IAC rules by analogy, the United States should develop criteria and procedures that replicate the delicate balance between military necessity and humanity that permeates the Geneva Conventions.