On Saturday, October 5, 2013, the US captured terrorist suspect Nazih Abdul-Hamed al-Ruqai (Abu Anas al-Libi) in Tripoli, Libya, and, reportedly, is now interrogating him on a US Navy ship. Al-Libi was wanted by the US for his alleged role in the 1998 bombings of US embassies in Kenya and Tanzania, in which over 220 people were killed. Some reports suggest that the US intends to bring al-Libi to a US criminal court or tribunal to stand trial.
The circumstances of his capture and ongoing detention raise a range of complex legal questions. This Q & A, intended for an audience of non-law specialists, provides an overview of some of the key legal issues and debates. Other posts at JustSecurity.org address some of these issues in more detail, as well as US domestic law. See especially Jennifer Daskal and Steve Vladeck’s post on the domestic law issues, as well as Meg Satterthwaite’s post on “Rendition to Justice,” and others (here, here, here).
In this post, we outline the law on the following questions:
Q & A
1. Which body of law governs the legality of the raid and capture, and the determination of al-Libi’s rights?
A number of different areas of law are relevant.
The international law related to inter-state use of force (particularly as set out in the UN Charter, Art 2(4)) governs whether the US action inside Libya is legal or a violation of Libya’s state sovereignty. This law does not directly relate to al-Libi’s individual rights, but is the source of legal obligations between states. (See Question 2 below).
Separately, one of the most important legal issues is whether the operation and detention are governed only by international human rights law, or primarily by the law of armed conflict (also called the laws of war, or international humanitarian law). Which body of law applies has significant implications for the legality of al-Libi’s detention, and the rights to which he is entitled. The US government’s position is clear: the detention is lawful under the laws of war because al-Libi is a member of al-Qaeda, a group with which the United States is in an armed conflict. However, the notion of a global armed conflict with al-Qaeda has been disputed by many over the last decade, and leading human rights voices have argued this week that there is no global armed conflict with al-Qaeda that could justify applying the laws of war to any suspected al-Qaeda member found outside areas of hostilities (such as al-Libi). Because of the sharp differences of legal opinion over the relevant legal framework, in the analysis below we discuss the law under both frameworks where relevant, and highlight the various viewpoints.
2. Does international law permit the US to carry out raid and capture operations in other countries, including Libya?
The general rule is no — countries are not permitted to capture individuals residing in other states or to forcibly transfer them elsewhere. But the US action in this case may have been lawful if Libya consented to the operation, or, potentially, if the US was acting in national self-defence against an armed attack. The legal analysis depends on facts which are currently unclear.
International law generally prohibits the use of force by one state in the territory of another state, and such use of force would violate state sovereignty (UN Charter, Art 2(4)). States are thus not entitled to unilaterally conduct military raids to capture criminal suspects or terrorists in the territory of other states (even where the alleged crimes are very serious, as in the case of al-Libi).
However, if Libya consented to the US operation, there is no violation of Libya’s sovereignty. The facts on this are currently unclear. Libya has claimed that it did not know in advance about the operation, called it a “kidnapping” and a violation of their sovereignty, and has asked for al-Libi to be returned. But anonymous US officials have suggested that Libya knew in advance about the operation, consented to it, and provided assistance.
If Libya did not consent, the capture may still have been lawful vis-a-vis Libya, if the US was acting in self-defence. A valid claim for self-defence requires that the force was both necessary and proportionate. The US might argue that the capture was taken in response to al-Libi’s 1998 embassy attacks. Some lawyers have argued that the length of time since the embassy attacks may make the self-defence claim now difficult. Alternatively, the US might argue that the capture was necessary because of an ongoing or imminent threat. It is unclear from publicly available information what ongoing role al-Libi played in al-Qaeda (some have questioned whether he has one) or whether he was part of organizing a recent or future attack. To successfully make this legal argument, the US would at the very least need to argue that it had to act to detain al-Libi because the Libyan authorities were unwilling or unable to do so.
3. Does the forcible transfer of al-Libi from Libya to his current place of detention violate the law of armed conflict?
The laws of war prohibit the forced removal and transfer of individuals from one country to another in certain situations.
In a war between states, it is prohibited to transfer “protected persons” out of occupied territory for long-term detention in another country. That prohibition is absolute when it involves persons who are “accused of offenses.” A draft memo by Jack Goldsmith, head of the Office of Legal Counsel in the Bush Administration, accepted those propositions as unassailable. Furthermore, the Supreme Court of the United Kingdom recently held that the British and US forces’ “forcible transfer of [a suspected terrorist] from Iraq to Afghanistan is, at least prima facie, a breach” of the laws of war. The Court concluded that such an unlawful transfer invalidates the subsequent detention. “On that account alone,” the Court stated, “his continued detention [at Bagram] post-transfer is unlawful.”
These international armed conflict rules inform–and many would say provide a baseline for–the rules that apply in non-international armed conflict and thus to al-Libi’s case. Indeed, the general prohibition on forcible transfers applies equally–if not more broadly–in non-international armed conflicts. It applies to all civilians, and it applies regardless of the area in which the individual is found. Specifically, for non-international armed conflicts, Additional Protocol II specifies: “Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.” And the ICRC Commentaries explain further that the rule “covers measures taken against civilians, either individually or in groups.”
But do these rules apply to al-Libi? On one view, al-Libi, like the terrorist fighter in the British Supreme Court case, could be considered a civilian who participates in hostilities. Accordingly, these rules might apply to him. Another view would hold that this proves too much and would invalidate the transfer of all suspected fighters in the conflict with al-Qaeda–whether transferred to Guantanamo or the US. For a nuanced analysis of these viewpoints, we refer readers to a discussion (pp. 230 et seq) by Colonel (ret.) Gary Solis, the author of a leading textbook on the law of armed conflict.
4. If al-Libi’s capture and detention were not part of an armed conflict, were his rights violated?
If al-Libi’s capture and detention are not considered part of an armed conflict, then his case must be examined according to the principles and laws relevant to any other detention of a suspected terrorist or criminal. On this basis, leading human rights organizations — such as Amnesty International — have stated that the capture was an “abduction” that violated human rights.
There are two possible ways to categorize the facts of al-Libi’s capture and detention, each with different associated rights. One, he may have been “arrested,” pursuant to the US indictment, for the purposes of prosecuting him for his alleged role in the embassy bombings (triggering the rights associated with a criminal procedure). Second, the US could argue that his detention is “preventative” i.e., he is being held for reasons of public security (triggering the more limited rights associated with administrative detention).
International law prohibits arbitrary arrest and detention: any deprivation of liberty must observe legally established procedures. Specifically, human rights law requires that anyone arrested must be informed of the reasons, and if arrested on criminal charges, informed of the charges against them. This requirement to inform of the reasons applies whether al-Libi’s detention is considered “preventative” or as part of criminal proceedings. (To our knowledge, there has been no public information on whether the US has fulfilled this requirement or not).
Anyone detained on any basis also has the right to challenge the legality of their detention before a court (the right to habeas corpus), and is entitled to legal counsel. The US does not appear to have yet respected these rights.
Further, anyone arrested on criminal charges must be brought “promptly” before a judge. Delays must “not exceed a few days,” and numerous cases have found violations where individuals were not brought before a judge within a week or less.
The longer al-Libi is detained aboard a US ship, the more the US risks being in violation of these fundamental principles.
Notably, states are permitted to suspend some procedural protections during an armed conflict (the technical term is a “derogation”). However, states are not permitted to suspend core procedural protections such as habeas corpus; and states are not permitted to suspend any procedural protections in death penalty cases. That said, states are allowed to suspend some protections only if they submit a formal declaration of “derogation.” The United States has not done so.
5. If al-Libi’s capture and detention were part of an armed conflict, were his rights violated?
In an armed conflict, states are permitted to detain enemy combatants or fighters for the duration of the conflict. If al-Libi is detained as part of an armed conflict, he is entitled to a status-based determination (to decide whether he is a fighter who can be detained), but not necessarily before a court. An independent administrativetribunal would suffice. This form of detention is forward-looking (preventive), not backward-looking (punitive). The key question, therefore, is whether al-Libi poses a future threat. Prior activities (such as al-Libi’s alleged involvement in the embassy bombings) are important in making that determination. But, an individual who has allegedly engaged in hostilities against the United States in the past could theoretically prove that he is no longer associated with al-Qaeda and does not pose a future threat.
Because al-Libi is accused of a crime and under indictment in a US court, al-Libi is in a different situation than an individual detained only because of their status as a fighter in an ongoing conflict. In any criminal proceedings for the 1998 bombings, al-Libi must be afforded“all the judicial guarantees which are recognized as indispensable by civilized peoples” (see alsohere). Indeed, that rule applies specifically in non-international armed conflicts. And it is an area of the laws of war in which experts generally agree that international human rights norms define the procedural protections. As discussed above, those human rights protections include expeditious presentment of the accused to a judge. (See also this statement by Human Rights Watch).
Finally, an important but overlooked rule in al-Libi’s case concerns the detention of individuals solely for the purpose of interrogation. International law permits law enforcement agencies, in peacetime, to temporarily detain individuals to obtain information about threats to the public. And, the laws of war naturally do not preclude such governmental actions in wartime. However, as one of us has written in the US Naval War College’s publication, the law of war does prohibit the long-term detention of individuals for the sole purpose of gathering intelligence.
6. Under the laws of war, can the US detain al-Libi on a US ship?
Al-Libi’s detention on a US ship (rather than a regular, fixed detention facility) raises unique legal questions.
Some media accounts of this issue have cited to Article 22 of the Third Geneva Convention, which states that POWs can be lawfully “interned only in premises located on land.” One of the most authoritative sources on the meaning of this provision–the ICRC Commentaries–explains that “boats, rafts or ‘pontoons’” are thus “absolutely forbidden” (note: one news report incorrectly discounts the importance of the ICRC Commentaries on this provision, describing them as “a kind of explanatory gloss”). Article 22, however, is likely inapplicable because it applies only to POWs–which al-Libi is presumably not, because he did not wear arms openly, abide by the laws of war, etc. The provision also applies only in international armed conflicts between states. Any US armed conflict with al-Qaeda is a non-international armed conflict.
That said, while Article 22 does not directly apply, there may be a broader prohibition (relevant in all kinds of armed conflicts) against holding suspected combatants on boats. The US Justice Department’s brief in In re Guantanamo Detainees explained that the rules of international armed conflict should help define detention authority in the non-international armed conflict with al-Qaeda, where the latter are less clear or less defined. That said, one has to know the reason for the legal prohibition on detention on naval vessels. If the rationale behind the rule involves assumptions about health and hygeine available on land versus ocean, then the rule is probably not applicable to al-Libi’s situation. If the rationale more generally concerns the ability to monitor conditions of confinement, it is directly applicable. The legal issue deserves further exploration.
Additional rules for non-international armed conflicts apply to al-Libi. According to the leading contemporary treatise on non-international armed conflict, a presumption exists against mobile detention facilities: “Fixed detention facilities are the preferred option.” Further, in an highly regarded analysis, the Legal Advisor to the ICRC explains that one of the most basic rules is that “any person interned/administratively detained must be registered and held in an officially recognized place of internment/administrative detention” (see also here). It is doubtful that the US naval vessel is an “officially recognized place of internment/administrative detention.” In an analogous case of US detention of a terror suspect on the high seas, an in-depth news report noted: “It’s not just that most of the fleet isn’t equipped for the detention mission. It’s that the whole enterprise is an improvised, stopgap measure.”
7. How is the US able to treat al-Libi in detention and during interrogations? Do the conditions of confinement or nature of interrogation raise legal concerns?
Whether al-Libi’s detention conditions are examined under the laws of war, or human rights, he is entitled to be treated humanely.
The US has said that al-Libi is being treated humanely, although the specifics of his treatment have not been publicly described. The President’s executive order prohibiting torture provides important protections. The possibility of sleep manipulation and isolation under the Army Field Manual Appendix M, however, does raise legal concerns (see discussion by Amnesty International, Physicians for Human Rights, and Human Rights First). In addition, while short-term solitary detention may be permissible, prolonged solitary has been found to breach detainee rights and can amount to inhuman treatment. The short time he has thus far been in confinement means that there is currently no basis for such a claim.
8. Does the US have to tell al-Libi’s family where he is, and permit them to communicate with or visit al-Libi?
Under human rights law, failure to notify al-Libi’s family of his location or refusal of communication with or visits from his family can be a violation.
The ICRC Commentariesprovide that for detainees in a non-international armed conflict, “persons deprived of their liberty must be allowed to receive visits from family members to the degree practicable.” Additional Protocol IIprovides thatdetainees “shall be allowed to send and receive letters and cards, the number of which may be limited by competent authority if it deems it necessary.”
9. Does the US have to permit the International Committee of the Red Cross access to al-Libi?
A general understanding it that the law of war treaties essentially require states to permit the International Committee of the Red Cross (ICRC) to visit detention facilities only in armed conflicts between states. In armed conflicts with nonstate actors, the treaty-based rule is much more modest, and simply refers to the idea that the ICRC “may offer its services to the parties to the conflict.”
That said, practices have evolved over time, and an important study of binding customary international law concludes: “an ICRC offer to visit persons deprived of their liberty in the context of a non-international armed conflict must be examined in good faith and may not be refused arbitrarily.”