The Distinction Principle and the Guantánamo Military Commissions

In this guest post, LLM in International Law student and GJA Ambassador, Felix Mayr, reflects on a recent Edinburgh Centre for International and Global Law event on the principle of distinction and the application of contemporary international law.

 

On 15 October 2019, The Edinburgh Centre for International and Global Law held a panel discussion exploring the principle of distinction as defined in international humanitarian law. The primary aim of the panel was to Illuminate some of the legal questions concerning the evolving notion of distinction, focusing on the current US point of view. The panel featured both experts from academia and practice, including James Connell and Benjamin R. Farley, two of the defence lawyers in the 9/11 military commission case taking place in Guantánamo Bay, as well as Dylan Craig, senior professorial lecturer of International Relations at American University’s School of International Studies (SIS) in Washington, DC, and Katharine Fortin, Assistant Professor at Utrecht University.

The notion of distinction has proven to impact a variety of issues, including: the obligations of non-state actors in armed conflict; the prosecution of different actors through military commissions; how the distinction principle has been shaped by the US War on Terror; as well as human rights breaches linked to the unlawful detention of individuals inappropriately categorised under international humanitarian law (IHL).

Dylan Craig argued that there are grey zones of formalized war, more aptly framed as interstices where state power and jurisdiction are mismatched. These “sovereign interstices” can be imagined as a black and white chess board. They can be deemed inextricable from the negative spaces of the great war-regulating sovereign orders, but they are, on the other hand, also characterized by recurring characteristics among the fighters who are recruited to fight proxy wars within them. States and the notion of sovereignty have changed greatly in the last four hundred years since the Westphalian Peace, but interstitial fighters have changed far less in comparison, and the same can be said of the recurring styles in which they are employed by their patrons. He argued that there has never been a “static” concept of sovereignty, but one that changes slightly a few times over the course of a hundred years. Hence, he concluded that we might be on the verge of establishing a new concept of sovereignty, reminding the audience that it is up to us, not only as academics but also citizens and human beings, to determine what this concept should look like. Closing on an optimistic note, he argued that events such as Guantánamo Bay give us a chance to productively respond to these incidents.

Katharine Fortin explained that the title of the panel captures the somewhat chaotic state of the legal approaches that have developed to deal with armed groups in the area of IHL, especially with regards to the US. She argued that through a system of judicial self-referencing the US have taken an exclusive stand point in explicit contradiction to the stand point of the International Committee of the Red Cross (ICRC). The US’s own definitions of legal terms such as “hostility” or “membership” (regarding armed groups) has led further and further away from internationally acknowledged rules into an exclusive US approach to the notion of distinction.

According to James Connell, the US has turned its own system on its head since the war on terror began after the events of 9/11. This is due to the fact that military commissions were seeking a way to hold terrorists to account, by twisting existing legal terms and principles to then reach the desired outcome. This has led to a problematic situation in which “pure” civilians can be (and are) subject to military commissions. The blurring concept of the notion of distinction has proved to be particularly problematic against the background of the authority of military commissions to decide upon executions.

Benjamin Farley similarly observed that the US is struggling with the principle of distinction, dividing the law of war into two concepts: the liability to detain and the notion of being targetable. Anyone not falling into either one of these categories can be deemed as a civilian and remains protected by general law. However, civilians who pose a security threat have also become liable to detention for (at least) a restricted period of time, often without a chance for legal review of their detention. Through a system of picking-and-choosing from legal categories by analogy, the US has created a confusing concept regarding the categorization of civilians as members of an armed group. He argues that these conflicts have now become transnational, surpassing the former concept of non-international conflicts, and the application of the distinction principle has not developed coherently.

Overall, the panel presented a vital discussion, building not only on the presentations by the speakers but also from stimulating questions and ideas raised among students, lawyers and other members of the audience. Most importantly, the speakers were able to make the work of military commissions come alive, explaining the dilemma of navigating legal rules adopted in response to narrow and often ill-conceived political agendas.