Capture, Detain and COIN: merged thread

[jmm99]

This thread is a non-identical twin to the thread, The Rules - Engaging HVTs & OBL, which deals with the kill aspect of neutralizing the enemy. This thread deals with the capture (detention) aspect of neutralizing the enemy. It also can tie in with the convert aspect of the tri-part neutralization concept (kill, capture or convert).

Two reasons for the thread are (1) the apparent uncertainty within the ICRC concerning the rules of capture and detention in non-international armed conflicts (to the US, Common Article 3 situations); and (2) the definite uncertainty in what US law will be as the President and Congress work toward (or away from) a common detention and trial framework in the National Defense Appropriations Act (NDAA; see Lawfare over the last few weeks).

As to the ICRC's issue, we have from Lawfare, Red Cross Conference Acknowledges “Gaps” in International Humanitarian Law Governing Detention (Lawfare 3 Dec 2011; by John Bellinger, who is a partner at Arnold & Porter LLP. Prior to that, he was Legal Adviser at State [2005-2009], and previously was Legal Adviser to the National Security Council (NSC) [2001-2005]):

The 31st Quadrennial Conference of the International Red Cross and Red Crescent closed on Thursday in Geneva with the adoption of a resolution inviting the International Committee of the Red Cross (ICRC) to study whether existing international humanitarian law is adequate, or needs to be strengthened and clarified, as applied to persons detained in armed conflicts. The Quadrennial Conference comprises the 194 States Party to the Geneva Conventions and all the national humanitarian aid societies that are part of the Red Cross and Red Crescent Movement. The resolution, and the ICRC reports that preceded them, constitute a candid and remarkable acknowledgment that — contrary to the adamant assertions of some observers — international law in general, and the Geneva Conventions in particular, do not in fact provide clear guidance to states engaged in detention activities and instead have some legal gaps.

Although the next steps are not clear, it appears likely that the ICRC will convene some kind of working group, in coordination with states, to examine the gaps and how to fill them. In an interview on the Conference website, an ICRC expert says “One possibility would be to negotiate a new treaty on detention issues. But other possibilities would also have to be considered, because some States may not see the need to adopt new treaty law. One of these, for example, would be to use more “soft-law” instruments – i.e. detailed rules that provide guidance without being legally binding. Or we could state more precisely what constitutes good practice.”

The ICRC prepared two important background reports for the conference:

Report on International Humanitarian Law and Challenges of Contemporary Armed Conflicts

Strengthening Legal Protection for Victims of Armed Conflicts

The ICRC has conducted a two-year internal survey to consider whether the GCs are "relevant" to present-day armed conflicts. I would suggest that the issue is not whether the GCs are "relevant" (a fairly low bar); but whether they are "material" (and if so, to what extent).

In any event, here is Bellinger's assessment of the present ICRC position on a number of key issues:

While international humanitarian law contains detailed rules on conditions of detention in international armed conflicts, this is not the case in conflicts not of an international character, especially those governed by Article 3 common to the Geneva Conventions, the minimum norm applicable in all non-international armed conflicts. There is a need to elaborate specific provisions on the various elements that make up a detention regime with a view to ensuring that detaining parties, whether State or non-State, ensure that those who are in their power are treated humanely.

The relevant rules of customary law are by necessity formulated in general terms, and thus do not provide sufficient guidance to detaining authorities on how an adequate detention regime may be created and operated.

In contrast to the Fourth Geneva Convention rules governing international armed conflicts, there are no international humanitarian law treaty provisions on procedural safeguards for internment in non-international armed conflicts.

Customary international humanitarian law prohibits arbitrary deprivation of liberty, but does not provide criteria for determining what is “arbitrary”. Article 3 common to the Geneva Conventions contains no provisions regulating internment, apart from the requirement of humane treatment. Internment is, however, clearly a measure that can be taken in noninternational armed conflicts, as evidenced by the language of Additional Protocol II, which mentions internment in Articles 5 and 6 respectively, but likewise does not give details on how it is to be organized.

Given the evident challenges faced by persons who might have reason to fear for their safety if they are transferred to another State, it is absolutely necessary to provide legal guidance to detaining authorities in such cases. The lack of legal provisions in the humanitarian law governing non-international armed conflicts suggests that it would be highly advisable to provide for a set of workable substantive and procedural rules that would both guide the actions of States and non-governmental armed groups and protect the rights of affected persons.

Some of the gaps in the existing applicable law require the preparation of new legal solutions.

Bellinger and co-author Vijay Padmanabhan recently addressed a similar set of concerns, “Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law.”

The most extensive practice in the area of detention lies in the US Courts (primarily the DC Circuit and District judges), as we have seen in individual cases discussed in this thread, Crimes, War Crimes and the War on Terror.

Regards

Mike

[davidbfpo]

Mike,

My apologies I should have mentioned this blogsite before, run by a contact in Belgium, Legal Issues in the Fight Against Terrorism:http://legalift.wordpress.com/

Currently for example it has:

An Interview with Jeremy Sarkin, Chair-Rapporteur of the United Nations Working Group on Enforced and Involuntary Disappearances, on the Study on Global Practices in Relation to Secret Detention

Link:http://projects.essex.ac.uk/ehrr/V8N...iew_Sarkin.pdf

[jmm99]

David, since the blogger is Mathias Vermeulen, Research assistant of Martin Scheinin, the UN Special Rapporteur on the Protection of Human Rights while Countering Terrorism, at the European University Institute.

Scheinin, Helsinginpoika, is well-known in the International Law "community" - as an advocate of a "law enforcement" approach to terrorism; that is, that International Humanitarian Law (Laws of War, Armed Conflict) is not directly applicable and that primary recourse must lie in International Human Rights Law. That is also the approach taken by our Mary Ellen O'Connell; as is exemplified in this post by Vermeulen, Last thoughts on the ‘kill-or-capture’ order of Bin Laden:http://legalift.wordpress.com/2011/0...-of-bin-laden/

I mentioned Scheinin's credentials in this post from a couple of years ago, Martin Scheinin.

To make it clear (so that no one will mistake me for what I am not), my position on Violent Non-State Actors is not defined by whether one calls them "terrorists". Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs). So, unlike Vermeulen, Scheinin and O'Connell (mentioned by me more regularly), I follow the 2001 AUMF and the Law of Armed Conflicts as being available in situations they would find exclusively belonging to "law enforcement". I also see criminal law as a useful adjunct (as I've stated numerous times).

In various cases, these people and I reach the same results; but for different reasons.

Regards

Mike

[Entropy]

Below a certain violence level, they are criminals; above that level, they are combatants (albeit probably irregular and not privileged under the GCs).

Where is the line and who draws it?

[jmm99]

from Entropy
Where is the line and who draws it?

In the absence of a One World Government (which is not one of my goals), the duly constituted government in each state decides. That means that one state could decide that the situation is an armed conflict; and another state could decide it is a criminal law situation.

The bottom line is that the decision is political - not legal (despite many in the I Law "community" who would like to be the "Deciders").

The affected Violent Non-State Actor may or may not contest the State's decision. For example, AQ has not disputed that it is engaged in an armed conflict with the US.

Regards

Mike

[Presley Cannady]

From WaPo:

KABUL — The United States has for several years been secretly releasing high-level detainees from a military prison in Afghanistan as part of negotiations with insurgent groups, a bold effort to quell violence but one that U.S. officials acknowledge poses substantial risks.

As the United States has unsuccessfully pursued a peace deal with the Taliban, the “strategic release” program has quietly served as a live diplomatic channel, allowing American officials to use prisoners as bargaining chips in restive provinces where military power has reached its limits.

We've discussed something similar on the theory that most detainees are useless rank and file--if even that much. So where do folks stand on paroling senior detainees?

[jmm99]

Whether to "parole" a detainee ("senior" or otherwise) is a matter within the discretion of the Executive Branch, subject to Congressional action where Congress elects to take such action. As such, it is a Political Question.

Parole has been around for a long time. For a pre-9/11 look, see, 1998 Brown, Prisoner of War Parole.

In a civil war, POW questions (including parole and exchange) are complicated by the issues underlying the armed conflict. The Lieber Code of 1863 has a lengthy section (119-134) covering parole. That General Order was preceded by the 1862 Dix–Hill Cartel (Wiki and Agreement). Despite the outlines provided by these legal sources, the Chronology of the Prisoner of War Exchange and Parole Cartel amply illustrates that a "one size fits all suit" did not exist.

My view: as a general rule I'd follow Grant (snips from the Chronology link):

April 17, 1864 Grant issues orders to Butler essentially forbidding exchanges unless and until the Confederates agree to treat black troops equally with white, and agree to compensate the U.S. for the early release from parole of the Vicksburg and Port Hudson garrisons.
...
August 18, 1864 Grant writes to Butler, "It is hard on our men held in Southern prisons not to exchange them, but it is humanity to those left in the ranks to fight our battles. Every man we hold, when released on parole or otherwise, becomes an active soldier against us at once either directly or indirectly. If we commence a system of exchange which liberates all prisoners taken, we will have to fight on until the whole South is exterminated."

August 19, 1864 Grant writes to Union Secretary of State Seward, "We ought not to make a single exchange nor release a prisoner on any pretext whatever until the war closes. We have got to fight until the military power of the South is exhausted, and if we release or exchange prisoners captured it simply becomes a war of extermination."
...
Oct. 1, 1864 Lee proposes an exchange with Grant, but the idea founders on the question of black troops.
...
Oct. 15, 1864 Stanton places all prisoner of war issues in Grant's hands, with instructions to "take any steps that you may deem proper to effect the release and exchange of our soldiers and all loyal persons held as prisoners by the rebel authorities."
...
Jan. 21, 1865 Grant informs Stanton that he has given instructions that negotiations be re-opened with a view to resuming a general exchange.
...
Feb. 2, 1865 Grant informs Stanton that he intends to exchange about 3,000 men per week until one side or the other has no more prisoners. The Federals intend to exchange men from states such as Missouri and Kentucky first, to minimize the chances that they could be put back into their units.

but every rule has its exceptions ("METT-TC").

Regards

Mike

[davidbfpo]

Presley asked:

So where do folks stand on paroling senior detainees?

I thought that the US-run prison at Bagram AFB had been handed over to the Afghans, so this question in the Afghan context maybe academic.

There is a historical parallel in Northern Ireland, during the long-running 'Troubles' and IIRC is still in use today - as some parolees have been recalled to jail, for breaching their conditions. Before the Good Friday Agreement it is well documented, although I have no references to hand, that the para-military convicts were decisive in arguing the case for a ceasefire and making peace.

Somehow I doubt if there is the capacity, let alone the will in Afghanistan to recall parolees. So are we in fact talking about hostages?

Incidentally in both Italy and Spain, with their own internal terrorist campaigns, made extensive use of imprisonment in reaching a political solution and so curtailing the use of violence.

Further back Rhodesia at one point made use of releasing temporarily jailed nationalist leaders, including Robert Mugabe, to enable political talks and at one point released several of them - where upon they left to lead the violent struggle from neighbouring states. That seems to be a more suitable example.

[davidbfpo]

From a student "lurker":

Does anybody know of any documentaries made in which the psychological impacts of terrorism detention/internment are discussed/analysed?

[davidbfpo]

In the last few days prisoners have escaped from jails in Iraq, Libya and Pakistan - when external attacks have been successful. Those who escape are often the "cream" or hard-core of insurgencies.

For Iraq I read this sombre report, although I've seen one suggestion some escapees have already been recaptured and one that many were awaiting execution:http://www.thedailybeast.com/article...nightmare.html

Benghazi, Libya appears to be a jail riot and an external riot:http://www.bbc.co.uk/news/world-africa-23479913

Pakistan, incidentally the second such attack this year:http://www.bbc.co.uk/news/world-asia-23493323 Ahmed Rashid on BBC radio just referred to the prison being informed three days ago of a planned attack and nothing was done in response.

Prison escapes are not unknown, we had them in Northern Ireland and the mainland a few times involving terrorist prisoners / suspects.

Do these incidents reflect official and external inattention, even blindness, to "downstream" aspects of CT - in providing adequate, secure prisons? What is the point of capture if sometimes they escape?

Merged into 'Capture, Detain and COIN: merged thread':http://council.smallwarsjournal.com/...?t=4358&page=4

[jmm99]

This week I was reminded that repatriation and parole still play a role in detentions, whether as EPWs (Enemy Prisoners of War) or ODs (Other Detainees). From Stars & Stripes, In rare move, US won't fight release of sick Guantanamo prisoner (By Ben Fox, AP, October 3, 2013):

MIAMI — The U.S. government has dropped its opposition to releasing a Guantanamo Bay prisoner with severe mental and physical illnesses, apparently conceding the argument that he is far too sick to keep locked up at the U.S. base in Cuba.

In court papers filed late Wednesday, lawyers for the Justice Department said the government would not object to a judge issuing a release order for Ibrahim Idris. The native of Sudan has been held for more than 11 years as an enemy combatant despite being diagnosed as mentally ill soon after his arrival at Guantanamo. ...

Wiki - Ibrahim Othman Ibrahim Idris; and Carol Rosenberg, Lawyers argue Guantánamo captive so sick he should go home (8 Jul 2013).

Ironically, since 2009, Idris could simply have been repatriated by an executive order because, as disclosed in the USG's filing:

In late 2009, the Executive Branch decided, pursuant to the recommendation of the Guantanamo Review Task Force, that the United States could relinquish custody of Petitioner with certain assurances from a receiving country, including assurances related to the availability of medical care in the receiving country. See Exhibit A, Guantanamo Review Task Force Dispositions Chart.[2]

2. Exhibit A is an excerpt from a publicly disclosed chart reflecting disposition decisions from the Guantanamo Review Task Force process, except that the entry regarding Petitioner on the chart lifts redactions of unclassified information. The remaining redaction in the entry regarding Petitioner protects from public disclosure information that remains classified.

One suspects this case was contested within the Obama administration, as something of a hot potato.

Royce Lamberth ("... Captain in the Judge Advocate General's Corps of the United States Army from 1968 to 1974, including one year in Vietnam."), being a crafty dinosaur, simply tossed the hot potato back in the lap of the Executive (Habeas Order):

Petitioner’s unopposed Petition for Writ of Habeas Corpus is hereby granted. The United States shall take all necessary and appropriate diplomatic steps to facilitate Petitioner’s release.

Had this case been opposed and gone to SCOTUS, it would have squarely presented a very important issue: Do the courts have any role in ordering repatriation of EPWs (Enemy Prisoners of War) or ODs (Other Detainees) [this is the contested issue], where their health conditions require their repatriation under Armed Forces regulations [posit this issue as uncontested] ?

The affirmative of this issue was presented (Brief), in a clever argument based on the Laws of War, by Idris' lawyer, Jennefer Cowan of NYC's Debevoise & Plimpton (45 years ago, a solid, "white shoe" international law firm - as contrasted to the more "L.L. Bean hunting boot" shod crew at Sullivan & Cromwell). Ms Cowan's argument is primarily based on DoD regulations, "informed" (not mandated) by the Geneva Conventions.

First, the DoD regulations:

1. Army Regulation 190-8 Requires The Repatriation Of Seriously Ill Detainees

Regulation 190-8 is domestic law, applicable to all branches of the military, which

“implements international law, both customary and codified, relating to EPWs [enemy prisoners of war] . . . and ODs [other detainees] [4] which includes those persons held during military operations other than war.”

4. The term “Other Detainees” is defined as “[p]ersons in the custody of the U.S. Armed Forces who have not been classified as an EPW [enemy prisoner of war] (article 4, GPW), RP [retained person] (article 33, GPW), or CI [civilian internee] (article 78, GC).” Regulation 190-8 Appendix B, Section II “Terms.” Regulation 190-8 requires that Other Detainees be treated as EPWs until a legal status is ascertained by competent authority. Id.

Regulation 190-8 at ch.1, §1(b); see also Al Warafi, 2013 WL 2278201, at *2 (Guantanamo detainee may invoke Regulation 190-8 “to the extent that the regulation explicitly establishes a detainee’s entitlement to release from custody”). With respect to sick and wounded prisoners, Regulation 190-8 provides that:

The following EPW and RP [“Retained Personnel”] are eligible for direct repatriation:
….
(2) Sick or wounded EPW and RP whose conditions have become chronic to the extent that prognosis appears to preclude recovery in spite of treatment within 1 year from inception of disease or date of injury.

Regulation 190-8, ch.3, § 12(l)(2) (emphasis added).[5]

5. Regulation 190-8 also calls for the establishment of a Mixed Medical Commission to determine whether prisoners are eligible for repatriation. Army Regulation 190-8 at ch. 3, §12(a)(2). However, the Mixed Medical Commission need not assess prisoners who are eligible for direct repatriation. Id. at ch. 3, § 12(k)(2). To the best of counsel’s knowledge, no Mixed Medical Commission has been established for the detainees at Guantanamo.

and, as a supplement, the Geneva Conventions:

2. The Third Geneva Convention Requires The Repatriation Of Seriously Ill Detainees

In addition to domestic law, it is appropriate to look to “longstanding law-of-war principles” to assist in determining the rights of Guantanamo detainees. See Hamdi, 542 U.S. at 521; Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“Common Article 3 [of the Geneva Conventions] ... affords some minimal protection ... to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory.”). ...
...
The government has taken a similar position:

“Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”

Respondents’ Mem. Regarding The Government’s Detention Authority Relative To Detainees Held At Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009) 1 (Dkt. No. 1689) (attached hereto as Exhibit C); id. 6, 9 (citing to the Third Geneva Convention).

The Third Geneva Convention requires that certain prisoners be repatriated directly to their home countries:

(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.

(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely
diminished.

(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.

Third Geneva Convention, art. 110. This repatriation requirement is grounded in the principle that seriously ill detainees “are no longer likely to take part in hostilities against the Detaining Power.” 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules 345 (Cambridge Univ. Press 2005).

Ms Cowan's argument is so close to what I'd make that I'd have a hard time deciding the case if I were a judge. The countervailing argument is that the relief requested would infringe on the President's CinC powers. But, sometimes, a case that can be limited to its specific facts (this one) could be a good vehicle for reminding the "Chief" that someone is looking over his or her shoulder.

Regards

Mike

[davidbfpo]

An update from The Independent, which raises the issue if detention is used in a COIN / FID campaign, what do you do with the prisoners?

Link:http://www.independent.co.uk/news/wo...s-9838905.html

[davidbfpo]

A long article in The Guardian, based on an interview with an ISIS veteran and entitled 'Isis: the inside story'. Some content is new IIRC.
Link:http://www.theguardian.com/world/201...e-inside-story

Cross-posted on the current Iraq thread.

[davidbfpo]

A Soufan Group IntelBrief 'The Wider Threat of Terrorist Prison Breaks' which opens with a reminder:

Breaking their members out of prisons is one of the most effective tactics used by terrorist groups to reenergize and repopulate their ranks

Link:http://soufangroup.com/tsg-intelbrie...prison-breaks/

Since the Yemen is one of the cited examples, I do wonder why no jails have been opened on its islands, in particular Socotra. Somehow I doubt yemeni jails match those in the visiting facilities in the West.

[SWJ Blog]

It is Time to Reassess How the US Conducts Detention Operations in the Current Fight and the Need to Incorporate our Regional Partners in the Future - Insurgents are Not Traditional Enemy Prisoners of War

A SWJ article and here for reference.

[SWJ Blog]

President Obama on Closing the Guantanamo Bay Detention Center

Entry Excerpt:



--------
Read the full post and make any comments at the SWJ Blog.
This forum is a feed only and is closed to user comments.

[davidbfpo]

Catching up on my reading aboard a train was this article in the hard copy journal 'Survival' from IISS by Elizabeth Grimm Arsenault @ Georgetown University. Her slim bio:https://sfs.georgetown.edu/faculty-b...imm-arsenault/

The article may appear on her website, others in journals have:https://www.elizabethgrimmarsenault.com/publications

I'd missed current policy is to transfer ISIS detainess to Iraqi or Kurdish custody. The author asks is humane treatment ensured and how will the USA craft a policy if the fight extends beyond the current - mainly - air campaign?