'The End of Active Hostilities:' The Obligation to Release Conflict Internees Under International Law

Abstract

With the formal announcement of the end of the U.S. combat mission in Afghanistan, habeas courts and the Obama administration are called upon to determine the term “end of active hostilities,” and the proper limits of detention authority “incident to war” as defined in Hamdi v. Rumsfeld. This litigation highlights again the unsolved debate on the proper grounds, under international law, for internment in non-international armed conflict. Detention in Guantanamo raises a number of complex questions about the legal nature of U.S. military operations against Al Qaeda and the authority to detain in a non-international armed conflict not least when the government’s authority to detain under the “law of war” would end. Against the background of U.S. jurisprudence, the article discusses the obligation to release prisoners of war and civilian internees, drawing on the drafting history of the 1949 Geneva Conventions and their Additional Protocols to define grounds of internment and its legal endpoint in international armed conflict. The analysis confirms that the drafters created with the term “cessation of hostilities” a purely factual element, independent of the political solution of a conflict or the repeal of domestic laws. Both Conventions contain an element of necessity: While the Third Geneva Convention considers prisoner of war internment until cessation of hostilities necessary under most circumstances, the Fourth Geneva Convention imposes an obligation to release an individual before the close of hostilities when such internment is not absolutely necessary for security purposes. The article proceeds to analyze challenges to determine the end of a non-international armed conflict under current rules for classification of armed conflict, and proposes criteria for triggering and ending detention authorities that take into account the need for protective and enabling rules in times of armed conflict. Using Afghanistan as an example, it also discusses obligations and authorities related to detention that may arise out of the applicability of international humanitarian law to conduct by foreign forces supporting a host government engaged in an armed conflict with a non-state actor on its territory.