Peter Margulies on Koh on the WPR (at the Naval War College Last Week)

The NWC Conference on Non-International Armed Conflict (NIAC) featured remarks from Harold Koh on Libya and detention and hints of an emerging consensus on “direct participation in hostilities.”  Panelists also stressed fairness as both legal duty and signal to relevant audiences.  Here are some of the high points: 1. Koh on Libya and Detention At lunch, Harold Koh discussed Libya, citing the administration’s now-familiar view that the US role did not constitute participation in “hostilities.”  Edwin Williamson, former Legal Adviser, questioned Dean Koh’s argument that US participation in the NATO effort did not constitute hostilities under § 8(c).  Koh responded that § 8(c) wasn’t about NATO, since that subsection’s application to NATO would make surplusage of § 8(b), which expressly mentions NATO.  Williamson pointed out that § 8(b) only discusses “headquarters operations,” and hence should not be read to address other NATO activities.  Koh pivoted to the more general argument that the WPR promotes dialog and deliberation, and that the administration had carefully crafted the US role out of respect for the WPR’s underlying values.  He also noted that the administration would welcome congressional approval of the Libya intervention. On detention, Dean Koh got a question from a military defense lawyer about an NGO report arguing that indefinite detention caused psychological and other symptoms equivalent to those yielded by cruel, inhuman, and degrading treatment.  Koh said he would read the report, just as he regularly read dossiers of alleged members of Al Qaeda (and used to read files of prospective law students about the same age).  He cautioned, however, that NGO reports on Guantanamo sometimes compared “apples, oranges, and pears,” grouping old cases with newer ones.  Koh cited the administration’s “functional” test for who should be detained, and noted that test’s success at the D.C. Circuit.  He said nothing about possible detainee legislation.  However, Steve Pomper, the Legal Adviser for Political-Military Affairs, said at a panel that legislation could only throw a monkey wrench into detainee matters, since the D.C. Circuit had been so receptive to administration arguments. 2. DPH: An Emerging Consensus? A number of panelists, including Steve Pomper and Mike Schmitt (incoming NWC Int’l Law Dep’t chair), criticized features of the ICRC’s controversial Direct Participation in Hostilities study.  Mike singled out the ICRC’s narrow definition of “Continuous Combat Function” (CCF), which he said would create a convenient “revolving door” for terrorists.  Leavening this critique, Mike praised the ICRC’s concept of an “Organized Armed Group.”  Steve Pomper, who also provided a new synthesis of the views of American allies, echoed Mike’s perspective.  Knut Dormann of the ICRC offered no defense of the CCF definition, and also earned praise from DOD’s Bill Lietzau.  Government officials and the ICRC appeared eager for a rapprochement that would downplay the most drastic departures in the ICRC study. 3. COIN and Signaling Fairness Many panelists, including Bill Lietzau and officers from Colombia and the Philippines, stressed the need for transparency and fairness as an aid to COIN efforts.  While stopping short of Gabby Blum’s innovative Common-but-Differentiated Responsibilities model, all emphasized the importance of both the reality and perception of fairness in targeting and detention decisions.  The Philippines representative insisted on the importance of mixing military action with development efforts to blunt the impact and appeal of Maoist and jihadist rebels.  The Colombia representative spoke of the significant number of criminal prosecutions of military personnel for violations of Colombia law and human rights.  To guide the military, commanders now give out different-colored cards for different missions: Red for actions where IHL applies, and blue for missions under a law-enforcement/human rights rubric.  Yoram Dinstein complained that this was a little too easy, but I’m considering getting some cards myself!  More seriously, I was struck by the commitment of international speakers to a hybrid approach, which seems due in part to the influence of recent US military thinking – quite a change from the vocabulary and approach of the Cold War.