Academic journal article Houston Journal of International Law

"The End of Active Hostilities": The Obligation to Release Conflict Internees under International Law

Academic journal article Houston Journal of International Law

"The End of Active Hostilities": The Obligation to Release Conflict Internees under International Law

Article excerpt

I. INTRODUCTION II. WHICH CONFLICT? WHICH AUTHORITY TO DETAIN?     A. The Obligation to Release and the Temporal Scope     of International Humanitarian Law     B. Transnational Armed Conflict: A Contested Model     C. The Authority to Detain in Armed Conflict III. GUANTANAMO AND THE INDEFINITE DETENTION    CONUNDRUM     A. The AUMF, Hamdi, and NDAA 2012 as Legal     Basis for Internment     B. An Unsatisfactory Solution: Preventing Indefinite     Detention through a Hybrid Model IV. THE OBLIGATION TO RELEASE UNDER IHL     A. The Obligation to Release in International Armed     Conflict     B. Obligation to Release in Non-International Armed     Conflict     C. The Obligation to Release under Hamdi v. Rumsfeld V. THE END OF HOSTILITIES IN NON-INTERNATIONAL    ARMED CONFLICT     A. The Pitfalls of Fact-based Conflict Classification     B. Decrease in Intensity and Fragmentation of     Armed Group     C. Non-International Armed Conflict with a Foreign     Support Force     D. When Will Hostilities in Afghanistan End? VI. DOES IHL ALLOW INDEFINITE DETENTION? VII. CONCLUSION 

I. INTRODUCTION

In August 2014, the United States, upon request of the Iraqi government, and with support of a growing coalition of Western and Arab states, launched air strikes on the Islamic State in Iraq and Syria, reviving a conflict that had ended with the withdrawal of all United States troops in 2011. The Obama administration argued--mainly for domestic reasons--that the Islamic State was a successor organization of Al Qaeda, raising concerns that the "Forever War" would indeed never end. (1) The start of this operation coincided with the drawdown of troops and the end of detention operations in Afghanistan. (2) While that withdrawal anticipated the end of combat operations there, and many hoped for a declaration of the end of hostilities with regard to the conflict against the Taliban by President Obama, the rhetoric around the emergence of IS suggested the "conflict" against Al Qaeda, whether in Afghanistan, Iraq, or Syria, was not to end anytime soon. (3) Since, doubts have emerged about whether the conflict against the Taliban has indeed ended, as the United States continues to support Afghan operations through air strikes and Special Forces advisors. (4) In October 2015, Obama announced a halt to the drawdown of troops from Afghanistan, given the deteriorating security situation, 5 and ultimately decided to keep 5.500 troops in the country beyond the end of 2016. (6)

Both the Bush and the Obama administrations have argued they are in an armed conflict against Al Qaeda and associated forces independent of the conflict in Afghanistan. (7) The 2001 Authorization for Use of Military Force (AUMF 2001) authorizes operations against those responsible for the attacks of September 11 and those harboring them, as well as to prevent further attacks by "such nations, organizations, and persons." (8) The lack of geographical limitation in the AUMF 2001 contributes to a lack of clarity over which hostilities have to end, against whom, and where, before the government has an obligation to release detainees. (9) Obama has not suggested that the operation against IS would change his intention to close Guantanamo. But it is likely his administration would want to rely on a continuation of hostilities with some variant of Al Qaeda to claim continued detention authority for those individuals at Guantanamo it does not want to, or practically cannot release. (10) Without ground troops, the United States is unlikely to capture many detainees in the conflict against IS; yet, it already held Umm Sayyaf, the wife of an IS leader, since her capture during a Special Forces raid on May 15, 2015, in military detention until she was transferred to Iraqi-Kurdish authorities on August 6, 2015. (11) U.S. allies may also be tempted to borrow from the U.S. blueprint for detention authorities for extraterritorial non-international armed conflicts developed in the past years. …

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