What's Your Advice, Counsel? from Distinction to Detention, Financial Support to Ground Support, and Everything in Between

Vanderbilt Journal of Transnational Law, May 2018 | Go to article overview

What's Your Advice, Counsel? from Distinction to Detention, Financial Support to Ground Support, and Everything in Between


INTRODUCTION

The following is an informal summary of the discussions that took place in the Workshop Session of the 2nd IDF International Conference on the Law of Armed Conflict, held April 25-27, 2017. In this session, conference participants were given practical scenarios on a range of issues for consideration. (1) In adherence with the Chatham House Rule, the summary is presented without reference to the identity or affiliation of the participants. (2)

SCENARIO 1; QUESTIONING AND DETENTION

State A (the State) is engaged in an armed conflict with an organized armed group (the OAG) outside the borders of State A. During this operation, the State ground forces are required to maneuver in the outskirts of the village "Valhalla." According to intelligence reports, both civilians and OAG fighters are likely to be present in the village when State forces pass through; the OAG fighters in the village are in fortified positions, well concealed amongst civilian objects (OAG positions). State intelligence is unable to provide the precise locations of these positions; however, it is reasonably certain that they are located within the "Kia" neighborhood and in the southern and western outskirts of Valhalla.

The ground forces maneuver towards the outskirts of the village. Despite the State's efforts in warning the civilian population to vacate the area (including dropping leaflets), intelligence reports assess that approximately 20 percent of the civilian population has remained in Valhalla.

In light of this, the commanding officer (CO) of the ground forces decides to change his maneuvering route towards the eastern side of Valhalla. Consequently, the CO wants to order his forces to stop and question every male who appears to be aged 16-50, so as to inquire if any of them are affiliated with the OAG, as well as to gather intelligence on the OAG positions.

Question 1: What legal advice do you give to the CO regarding this order? Would your advice change if such questioning would require holding the persons for a number of hours in order to properly question them? Would your advice change if the questioning was to inquire to where the civilian population has evacuated?

The discussion considered the legal basis and legal threshold for the deprivation of liberty of persons in an armed conflict, and whether there is a distinction between an international armed conflict (IAC) and non-international armed conflict (NIAC) in this regard.

There was broad agreement that it would be lawful for the CO to order his forces to stop and question every male who appears to be aged 16-50 and that such questioning should be limited to the shortest period of time possible in the circumstances. No precise period of time was specified, with the acknowledgement that strict predetermined timeframes cannot accommodate the different circumstances of each specific case.

There were various suggestions as to the legal basis for such action, some of which were said to also express a standard for carrying out detention during hostilities. These included a commander's inherent authority to detain persons during hostilities; the existence of a military necessity; this not being a case of arbitrary detention; and the ability to take necessary security measures pursuant to Article 27 of the Geneva Convention (GC) IV (in the case that the operation was taking place as part of an IAC in which the treaty would apply). One participant also mentioned in this regard the need to clarify the status of suspected persons in the context of Article 5 of GC III (also applicable only in IACs).

One participant added that the fact that the civilian population in the area had already been warned and had been asked to leave raises a general suspicion about the remaining persons in a way that justifies their questioning.

The participants were not concerned about the fact that the questioning was solely for the purpose of intelligence gathering, so long as it was limited to the shortest period of time possible in the circumstances. …

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