The Indo-Pacific Command (USINDOPACOM) Area of Responsibility (AOR) is comprised of thirty-six nations and over half of the world population, some of the world’s largest militaries, and a significant portion of the world’s maritime commerce. Much of the international community is inextricably tied to this region through commerce, politics, and security interests. These activities are governed by international law, primarily developed through treaties established as part of the post-World War II international order under the United Nations (U.N.).
The complexity of the USINDOPACOM AOR makes armed conflict likely in the near future. While international law governs armed conflict, the debate as to which bodies of international law apply in armed conflict is not settled.
The U.S. view is that the Law of War (LOW) is lex specialis, displacing laws that normally apply in peace. Many other states, to include several U.S. allies and key partners in the USINDOPACOM AOR, either expressly reject this view, or, through their own official statements and jurisprudence, indicate a propensity to reject this view.
Generally, the opposing view asserts that states’ legal obligations during peace, specifically those pertaining to human rights, continue during armed conflict without being wholly displaced by the LOW. This opposing view is commonly referred to as the legal concept of convergence, and the body of law is generally referred to as International Human Rights Law (IHRL). The Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), among other key human rights treaties, instruments, and customary international law (CIL), make up IHRL
The complexities of this debate are myriad, and arguments for and against convergence have been litigated and made the subject of numerous publications. The purpose of this article is not to argue the virtues of the LOW vis-à-vis IHRL, or re-hash this well documented discourse. The purpose of this article is to survey our Indo-Pacific region allies’ legal obligations in detention operations and identify areas of divergence with the U.S. Department of Defense (DoD) view. Specifically, this article focuses on the likely friction that will arise regarding the detention of individuals that the United States classifies as “unprivileged belligerents.” This issue, if not addressed now between the United States and its allies and partners in the Indo-Pacific AOR, will create legal vulnerabilities caused by lawfare or lack of inter-operability.
For example, Russia’s use of “irregulars” in Ukraine, China’s militarization of their civilian fishing vessels, and the activities of rogue states and Violent Extremist Organizations (VEOs) indicate their proclivity to operate in legal grey zones during competition activities and low intensity armed conflict. This practice has become known as conducting “lawfare.” Identifying and addressing areas of divergence now is essential to reducing the risk of disruption through lawfare.
The operational impact of convergence is not theoretical. United States Central Command (USCENTCOM) encountered hurdles in conducting coalition detention operations in Iraq and Afghanistan. Lawsuits brought against U.S. ally the United Kingdom (U.K.) compounded these hurdles. Specifically, human rights lawsuits brought before the European Court of Human Rights (ECtHR) and within the U.K. against the British Armed Forces severely disrupted the U.K.’s ability to conduct detention operations.
Furthermore, it is important to note that unlike the USCENTCOM AOR, the maritime nature of the USINDOPACOM AOR will present our competitors and adversaries an opportunity to manipulate IHRL as a form of lawfare beyond land domain operations. For example, the United Nations Convention on the Law of the Sea (UNCLOS), which addresses, among other things, rights of those detained at sea, may potentially serve as a new legal platform to challenge future coalition detention operations in the USINDOPACOM AOR.
In order to frame the discussion on potential areas of divergence between the United States and its allies, this article first briefly reviews the European line of cases against the U.K. These cases will likely serve as persuasive authority for our allies and partners in the USINDOPACOM AOR. Then, this article considers the current legal posture of those allies in the Indo-Pacific region who appear to take a convergent approach by reviewing the official government statements, applicable laws, and open source military regulations and policies of Australia, Japan, the Philippines, and the Republic of Korea.
Worth particular analysis is New Zealand’s legal posture. The U.S. military and the New Zealand Defense Forces (NZDF) continue to participate in coalition operations despite the suspension of the U.S.’s collective security obligations to New Zealand under the Australian-New Zealand-United States (ANZUS) security agreement. Furthermore, the United States and New Zealand are “Five Eye” partners, and technically remain parties to the Southeast Asia Treaty, a multi-lateral collective defense agreement still in effect despite the dissolution of the treaty’s North Atlantic Treaty Organization (NATO)-like enforcement organization, Southeast Asia Treaty Organization (SEATO).
II. The European Model
Convergence is real, the significance of which is best illustrated through what our ally, the United Kingdom, endured in over a decade of litigation on these issues. Several cases from Europe stemming from British operations in Afghanistan and Iraq highlight the legal complexity of coalition detention operations: Al-Skeini v. The United Kingdom; Al-Jedda v. The United Kingdom; Hassan v. The United Kingdom; and Serdar Mohammad v. The Ministry of Defence.
This litigation occured in both the European Court of Human Rights (ECtHRs) and the U.K.’s domestic judicial system. In aggregate, these cases stand for the extra-territorial application of human rights obligations, and although states must accommodate the LOW, they must also complement it with IHRL. Of particular note, the ECtHR rather explicitly disregarded Common Article 3 (CA3) as providing independent authority to detain or constituting relevant law under any modern armed conflict scenario.
Our allies in the Indo-Pacific AOR are not members of a regional human rights convention like the European Convention on Human Rights (ECHR). However, the European model will likely serve as persuasive authority in Indo-Pacific regional domestic courts considering their countries’ human rights obligations during armed conflict.
III. Allies and Partners in the Indo-Pacific
Australia signed the ICCPR in 1972 and incorporated it into the law of the commonwealth in 1980. The Australian delegation did not express any reservations at that time with respect to application of the ICCPR in armed conflict. However, in a 2009 response in the U.N.’s Universal Periodic Review process by the U.N. Human Rights Council, Australia’s representatives stated that the LOW is the lex specialis in armed conflict. The Australian officials then described what is actually a complementary approach to the interplay of the LOW and IHRL. Specifically, the Australian officials acknowledged that certain aspects of Australia’s obligations under the ICCPR extended to its activities in armed conflict when the two laws were not in conflict. This view mirrors the accommodation approach applied by the U.K. Supreme Court in Serdar.
Under domestic law, Australia’s treaty obligations do not constitute a direct source of individual rights or government obligations absent incorporation into its legislature. However, the High Court of Australia (High Court) made clear in its 1995 decision in Minister for Immigration and Ethnic Affairs v. Ah Hin Teoh that treaties signed by Australia’s executive are highly persuasive and shall apply when consistent with domestic law. The High Court emphasized that treaty obligations serve as a “positive statement . . . to the world” that Australia’s “executive government and its agencies will act in accordance” with its treaty obligations.
The High Court’s opinion established what is now referred to as the “legitimate expectation” principle, a principle followed by its courts and by Australia’s Human Rights Commission. The Australian Human Rights Commission interprets this principle to mean that Australia has agreed to adhere to the international system of law created through its treaty obligations, to include its ratification of the ICCPR.
Australia’s 2009 expression of the interplay of the LOW and the ICCPR invites extraterritorial application of IHRL obligations to Australian detention operations in instances of handling unprivileged belligerents. Furthermore, under the “legitimate expectation” principle, Australia’s judiciary would likely grant standing for consideration of relief under the ICCPR to any detainee held by Australian Defense Forces under the auspices of CA3 and Additional Protocol I (API) or Additional Protocol II (APII).
Japan is a party to ten U.N. human rights-based instruments including the ICCPR, which it ratified in 1979. Japan ratified the ICCPR without reservations regarding the treaty’s application in armed conflict. Japan’s Constitution provides that Japan’s treaties constitute domestic law. Furthermore, Japan’s criminal code generally prohibits warrantless detention, and its Habeas Corpus Act allows any individual detained to sue for release for due process violations. Specifically, authorities may detain individuals for up to seventy-two hours without indictment, but then a judge must review the case.
Japan’s Self Defense Force (JSDF) is an armed force but structured primarily to defend Japan’s air, sea, and land. Under a self-defense construct, Japan’s domestic law strictly governs the JSDF and Japan’s Ministry of Defense (MOD). Japan’s MOD utilizes a “national response framework” designed under Japan’s laws for responding to “armed attack.” These laws place a number of requirements on the MOD, including implementation of fundamental principles of International Humanitarian Law (IHL), also referred to as the LOW, in an armed attack.
With respect to detention operations, Japan’s “Prisoner of War Law” applicable in armed attack is designed to guarantee adherence to IHL. It establishes the scope and application of the law, defines categories of those captured, and provides the process for handling detainees. Interestingly, with respect to IHL, the Prisoner of War Law draws entirely from the Third Geneva Convention and API and defines the categories of those that may be interned as spies, saboteurs, and members of enemy armed forces that fail to adhere to their obligations under API. Except for making a reference to “enemy armed forces” including “other similar organizations,” the Japanese Prisoner of War Law is silent as to instances of Non-International Armed Conflicts (NIACs) and does not mention CA3 or APII.
The relevance of Japan’s self-defense legal framework is that it is primarily constructed to address international armed conflict and does not address the legal rights of members of organized armed groups or civilians directly participating in hostilities. Therefore, Japan will likely extend their IHRL and domestic human rights obligations in instances of detaining those categories of unprivileged belligerents.
C. The Philippines
The Philippines ratified the ICCPR in 1986. The Philippines delegation did not register any interpretive limitations with respect to the scope and application of the ICCPR and has incorporated the ICCPR into its domestic laws.
The Human Rights Commission (HRC) of the U.N., throughout periodic reviews, has raised a number of concerns regarding the Philippines’ perceived lack of adherence to their human rights obligations in counter-terrorism operations. Despite these concerns of actual compliance, the Philippines’ official position in its response is that it applies a convergent approach to the military detention activities. Specifically, in the Philippines’ 2012 response to the HRC, the Philippine Government reaffirmed that its obligations under the ICCPR constituted the “law of the land” and applied to all aspects of its government activities.
With respect to military governance, the Armed Forces of the Philippines (AFP) are authorized to conduct counter-terrorism operations pursuant to the Republic Act No. 9372, entitled An Act to Secure the State and Protect Our People from Terrorism and referred to as the Human Security Act of 2007. Pursuant to Section 3 of this Act, terrorism includes piracy, insurrection, and coups, and therefore would likely apply to NIACs. Additionally, the Act is not limited by geography and therefore applies to domestic and extraterritorial operations as written.
Furthermore, in Section 2, Declaration of Policy, the Act mandates that government activities, to include that of its military, “shall not prejudice respect for human rights which shall be absolute.” Specifically, the Act proscribes rigorous compliance with law enforcement and judicial processes associated with principles of human rights. Sections 7 through 18 of the Act establish additional protections pertaining to surveillance, searches and seizures, and the requirement for judicial review within three days of apprehension.
D. The Republic of Korea
The Republic of Korea (ROK) is a state party to ten international human rights instruments including the ICCPR and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The U.N. HRC has expressed concerns about the ROK’s domestic laws and, in application, its conformity with IHRL with respect to “arrests and detentions.”
In its official responses to the U.N. HRC, however, ROK officials reassured the HRC of its intent to comply with its international human rights obligations. First, the ROK argued that its Constitutional Court protects against arbitrary application and violations of due process within its domestic criminal system. Second, the ROK pointed out that its National Assembly incorporated the Rome Statutes into its domestic law, criminalizing, among other grave breaches of international law, crimes against humanity.
The ROK’s domestic criminal laws criminalize armed aggression against the ROK. Specifically, the Criminal Act and the National Security Act criminalize taking part in insurrection or providing material assistance to foreign aggression against the Republic. Jurisdiction under these acts applies within the territory of the ROK and on any ROK sea or air vessel. Furthermore, the Criminal Act extends jurisdiction extraterritorially over Korean nationals and aliens that commit certain acts of aggression or insurrection abroad against the ROK.
The key to understanding the ROK’s approach under its domestic criminal law is to see that individuals considered unprivileged belligerents by the U.S. under the LOW would likely fall under the purview of the ROK’s Criminal Procedure Act. The Criminal Procedure Act is comprehensive and details the investigative and judicial procedures including the rights of the accused from arrest through the judicial appeal process. Of note, the Act extends a number of protections that align with fundamental principles of human rights with respect to judicial guarantees and protections against arbitrary detention.
Specifically, the Act places a time limit on detention prior to the initiation of formal prosecution, a ten-day period of which may only be extended once by a district judge. Furthermore, the suspect must be immediately informed of the basis of detention, and be provided access to an attorney. The National Security Act, Criminal Act, and Criminal Procedure Act do not align with the U.S. view that the LOW permits indefinite detention of unprivileged belligerents for imperative security reasons.
E. New Zealand
In 1948, New Zealand’s Prime Minster Peter Fraser took a lead role in the creation of the UDHR. Today, New Zealand is a signatory to seven U.N. human rights treaties, and has incorporated much of its international obligations in its domestic law. Specifically, with respect to the ICCPR, New Zealand’s Bill of Rights Act of 1993 incorporates many of the enumerated rights of the ICCPR and requires its government agencies to abide by these obligations. During the process for making reservations to the ICCPR, New Zealand did not express any limitations as to the application of the ICCPR with respect to armed conflict.
The NZDF is obligated to comply with New Zealand’s international and domestic legal obligations. The NZDF’s recently updated 2019 Manual of the Armed Forces Law reinforces this point. The Manual provides that the LOW is the lex specialis in the conduct of war and applies specifically to those issues it was intended to address, for example POWs. However, the Manual also applies a complementary approach. It emphasizes that NZDF’s legal obligations “include aspects” of IHRL, and in cases of “overlapping provisions,” the NZDF must comply with all binding provisions.
Chapter 12 of the Manual, titled “Persons Deprived of Their Liberty,” covers NZDF detention operations. This chapter categorizes persons deprived of their liberty as prisoners of war, retained personnel, internees, and detainees. New Zealand’s category for “detainees” mirrors what the U.S. DoD considers unprivileged belligerents. Specifically, in section 12.2.3, the Manual classifies a detainee as a person not entitled to POW, retained personnel, or internee status, and who is detained for any reason in an International Armed Conflict (IAC) or a NIAC.
Like the U.S., the NZDF derives its authority to capture a detainee from the LOW. However, the U.S. DoD and the NZDF positions diverge as to the legal basis, or at least the scrutiny associated with the legal basis, for continued detention. Specifically, the NZDF Manual provides that a “more specific legal basis is necessary” for continued detention other than the fact that hostilities are on-going. The difference in approaches is substantive in that the NZDF Manual cites to the “ICRC Customary IHL rule 99 – Arbitrary deprivation of liberty prohibited” as its source, a rule that draws heavily from IHRL and the ICCPR.
F. Rome Statute of the International Criminal Court
On a related matter, it is also important to note that our security agreement allies discussed in this paper, except for the Philippines and Thailand, are parties to the Rome Statute. The Philippines was a signatory of the Rome Statute but gave notice of withdrawal on March 17, 2018, a decision that became effective one year later. Therefore, except for the Philippines and Thailand, U.S. allies in the region have given legal effect to the Rome Statute within their domestic law and have ceded a portion of their judicial sovereignty to the International Criminal Court (ICC).
The ICC is a court of complementary jurisdiction to a state party’s court and is charged with investigating and trying cases of alleged grave breaches of international law, to include crimes against humanity. The Rome Statute provides that deprivation of liberty in “violation of fundamental rules of international law” is a crime against humanity. Therefore, the ICC would have complementary purview over detention operations conducted by our allies, except for Thailand and the Philippines, and would apply IHRL norms if granted jurisdiction over a complaint.
Conducting coalition detention operations in the USINDOPACOM AOR will be legally complex. Without a plan, the interplay of the LOW and IHRL will be disruptive to the operations. Proper planning is imperative because the joint force has a responsibility to account for “special considerations” that will impact detention operations. While the Army is the DoD-designated Executive Agent for the detainee operations program, the future of coalition detention operations in the Indo-Pacific AOR is a joint force problem, especially considering the maritime nature of the theater.
Consensus between the U.S. and our allies will be essential to conducting effective, interoperable coalition detention operations. A potential starting point for planning for and achieving consensus would be to use “The Copenhagen Process on the Handling of Detainees in International Military Operations” (Copenhagen Process) as a starting point.
The Copenhagen Process provides principles and guidelines for the handling of detainees that the U.S. considers unprivileged. However, the Copenhagen Process has its limitations and really is just a potential starting point. First, of the U.S.’ security agreement allies in the Indo-Pacific, only Australia is a party to this process. Second, the Copenhagen Process was only intended to apply to a NIAC and not an IAC. An IAC, especially with respect to asymmetric threats, does not preclude the inevitability that states will detain belligerents that fall within the grey area between the LOW and IHRL. Finally, the parties to the process did not reach consensus as to the application of IHRL to detention operations in armed conflict.
Despite these limitations, without planning and consensus, interoperable coalition detention operations will not be feasible. Furthermore, absent proper planning, key challengers in this region, specifically Russia, China, the Democratic People’s Republic of Korea, and VEOs will exploit vulnerabilities and leverage IHRL to conduct lawfare through fraudulent lawsuits.