Yesterday I drew attention to a piece by Daphne Eviatar (Human Rights First) concerning the DRB process for screening detainees in Afghanistan, emphasizing the following passage:
Under international law, a detainee in the Afghan armed conflict has the right to challenge the grounds for his detention to an impartial body with authority to enter final decisions on continued detention or release. The Detainee Review Board process does not meet that standard.
To comply with minimum international standards of due process, the U.S. government should provide detainees with lawyers trained to challenge the government’s evidence.
I asserted that those claims do not reflect IHL, I speculated that Daphne may have had in mind human rights law instead, and I invited her to reply. She has graciously done so. The full text of her reply is below the jump, and my comments follow after that. I think the exchange is an important one insofar as it is a brief but representative illustration of a point of foundational legal disagreement with respect to the war in Afghanistan: whether that war must be conducted in accordance with the International Covenant on Civil and Political Rights.
There is nothing bold in my assertion that NIAC detainees have the right to challenge their detention before an impartial body. That’s not an inaccurate statement of International Humanitarian Law; IHL does not address the issue, and I don’t claim that as the authority for the right to challenge detention. (As you can imagine, I didn’t have room in a short op-ed in Politico on the DRBs to explain the relevant international law in any detail.) That doesn’t mean that IHL doesn’t apply, however. IHL applies to all armed conflict and it certainly applies to the one in Afghanistan. But the relevant provision of IHL -- Common Article 3 -- does not address detention powers.
Human rights law does address the matter, however. Article 9.4 of the International Covenant on Civil and Political Rights, or ICCPR, specifically provides for the rights I discuss. While the U.S. may deny the application of human rights law in armed conflict, the preponderance of international jurisprudence holds otherwise. For that matter, so does IHL. Consider, for example, the reference to “international instruments relating to human rights” in the preamble to the Geneva Conventions Additional Protocol II. See also the reference in Common Article 3 to “judicial guarantees recognized as indispensible by civilized peoples.” (Such judicial guarantees would presumably be found in domestic law, informed by the minimum requirements of human rights law.)
As for my recommendation that lawyers be provided to detainees, I do not claim that this is an IHL obligation. I do believe, however, that it is a logical, and perhaps even necessary, means to a requisite end: the realization of judicial guarantees recognized as indispensible by civilized peoples.
Right to Counsel: At first blush, we seem to be in agreement. I denied that IHL requires a right to counsel in the context of detention screening, and Daphne begins her last paragraph by clarifying that she does not claim otherwise. Her last sentence, however, arguably reopens the door to such a claim. She writes that a right to counsel might be necessary to satisfying an obligation to provide the “judicial guarantees recognized as indispensible by civilized peoples” –an obligation found in Common Article 3. But that passage in Common Article 3 has to do with criminal prosecution, not detainee screening. Here’s the full text:
Article 3 (1) . . . To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
If we were talking about criminal prosecutions of detainees in Afghanistan, then we'd be in complete accord; I don't doubt for a second that the right to counsel is indispensable within the meaning of Article 3(1)(d). But that's not at all what we are talking about. A detainee review board is a process to determine whether a person has properly been categorized as someone subject to detention for the duration of hostilities; it is not in any sense meant to be a criminal trial, and Article 3(1)(d) has no application to it. (See here, by the way, for a detailed discussion of just how the DRB process works.)
In any event, Daphne might respond by turning to IHRL as the source of a right to counsel, which brings us to the next point...
Right to Challenge Detention Before an Impartial Body (and the Relevance of the ICCPR): Do detainees in Afghanistan have a legal right to challenge their detention before some particular type of institution? As Daphne notes, nothing in Common Article 3 requires this. Her claim, instead, is that this right stems from the ICCPR (Article 9.4, to be precise). On this view, the detainees have the right not just to impartial review, but to judicial review in particular:
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
There are two problems with this position. First, as Daphne anticipates, there is the extraterritoriality issue. Article 2.1 of the ICCPR states:
1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant...
The United States government has long taken the view that this language compels the conclusion that ICCPR obligations apply only within a state’s own territory, not abroad. To be sure, there are many other states, IOs, NGOs, and scholars who construe this language differently (most famously, perhaps, the UN Human Rights Council). None, however, are in a position to authoritatively construe the ICCPR in a manner that binds the United States.
The resulting disagreement, in any event, explains much of the apparent cross-talk when it comes to examining the legality of US detention practices. And much the same can be said of the second objection to Daphne’s position, which she expressly anticipates above: i.e., the argument that IHRL even if applicable as a notional matter either is displaced by or at least must be harmonized to the standards of IHL, pursuant to the lex specialis principle.