If you have been regularly following this blog, you will know this basic rule: International Humanitarian Law (IHL) applies in times of armed conflict. This principle, however, is not as straightforward as it seems. Aside from the different factors that need to be considered in order to determine whether an armed conflict exists, determining when an armed conflict ends – and when IHL ceases to apply – is an equally complicated question to which relevant treaties provide no clear answer.
Much is at stake in determining when armed conflicts end. Indeed, while IHL is intended to protect civilians and prevent unnecessary suffering, it does allow for the killing of combatants and others directly participating in hostilities, and the detention of prisoners of war without charge or trial. The thorny question of detention, for instance, is particularly relevant today with regard to United States practice at Guantanamo Bay and its armed conflicts in Iraq and Afghanistan.
Many armed conflicts in this day and age, and particularly those involving non-state terrorist actors, are unlikely to have a clear ending, such as a formal peace treaty, an armistice, or even a clear cessation of hostilities. For example, back in 2003, President George W. Bush had announced the end of major combat operations in Iraq. Nevertheless, an overwhelming number of civilian and U.S. military deaths would occur in the years following that speech. According to Article 6 of the Fourth Geneva Convention Relative to the Protection of Civilians in Time of War, IHL would cease to apply “on the general close of military operations.” By almost all accounts, the test is an objective and factual one. For the International Committee of the Red Cross (ICRC), this means the end of fighting between all belligerents. Others define it as the complete cessation of aggressive military maneuvers. Some have argued for the general principle that IHL ceases to apply once the conditions that triggered its application no longer exist.
Regarding detention, however, Article 118 of the Third Geneva Convention Relative to the Treatment of Prisoners of War uses different language, requiring the release and repatriation of prisoners of war at the “cessation of active hostilities.” The ICRC and many commentators agree that this is a different standard, and a state of affairs that could occur prior to the “general close of military operations.” This means that IHL would require the release of prisoners before the end of an armed conflict if active hostilities have ceased. The drafting history of the Geneva Conventions indicates that the drafters wanted to remove the obligation of release from the political will of either party. The cessation of hostilities would therefore depend on a factually objective test, the determinants of which would be the intensity and regularity of the fighting. As a result, the German Military Manual requires neither a formal armistice nor the conclusion of a peace treaty to determine the end of active hostilities. According to the U.K. Army Manual, “active hostilities have ceased where there is no immediate expectation of their resumption. Cessation is not affected by isolated and sporadic acts of violence.”
The question of whether active hostilities have ceased is at the center of the al Warafi v. Obama case. In the most recent developments of his habeas action challenging his continued detention at Guantanamo, al Warafi has filed a brief arguing that, as he is being held as a member of the Taliban’s armed forces, the United States no longer has the authority to detain him. Al Warafi relies primarily on presidential claims that the active hostilities between the United States and the Taliban have ceased, and that while troops remain for ongoing counterterrorism operations against the remnants of al Qaeda, the war in Afghanistan has come to an end. The Department of Justice, on the other hand, is arguing that the end of the combat mission does not entail the end of active hostilities, and that lower-level hostilities between the United States and the Taliban justify ongoing military detention.
The repatriation of prisoners has often been a delicate issue in previous armed conflicts. The talks leading to the Korean War armistice agreement dragged on essentially because of China and North Korea’s insistence that all prisoners, even those wishing to remain, be returned. Once they relented, however, Operation Big Switch began shortly after the armistice and lasted four months. Following the 1980s Iran-Iraq War, the first prisoners repatriation occurred only two years after the cease-fire, and it was only a decade later that all prisoners returned home. In those cases, however, it was clear that the conflict had ended. One identified problem today is that the detention of fighters in the conflicts with al Qaeda and the Taliban could effectively amount to life imprisonment, and even more so given President Obama’s recent announcement of a delay in the withdrawal of troops from Afghanistan.
The unsettled concept of the cessation of active hostilities therefore has very concrete and important consequences, making the need to have a clear-cut definition all the more crucial. Factors such as the regularity and intensity of hostilities are particularly relevant, but statements of political leaders, although not determinative, can also be useful indicators. What additional factors do you think should be taken into account in considering whether an armed conflict has ended?