war.194 Accordingly, the US government’s position is that it can hold detainees at Guantánamo without charge under the laws of war until a competent authority determines that “the conflict has ended or that active hostilities have ceased”.195 158. ODIHR’s view is that the “global war against terrorism” does not constitute an armed conflict and does not justify an extended application of international humanitarian law beyond those events that constitute part of an armed conflict as defined by international humanitarian law. ODIHR recognizes the conflict in Afghanistan from 7 October 2001 until 19 June 2002 as an international armed conflict. Therefore, the Third and Fourth Geneva Conventions, customary international law, including Article 75 of API, and international human rights law196 were all applicable to the detention of Guantánamo detainees directly involved and apprehended in the context of this conflict from the date of apprehension to the end of the international armed conflict.197 For those apprehended in connection with the subsequent non-international armed conflict in Afghanistan, detention is regulated by Common Article 3, customary international law, international human rights law, domestic law and other relevant bodies of law.198 159. Additionally, ODIHR considers that many of the detainees at Guantánamo were apprehended outside any armed conflict involving the United States at the time of their arrest.199 ODIHR rejects the US position that it is enabled to capture individuals anywhere in the world and subject them to detention under the law of armed conflict based on mere allegations that they are or intended to be a member200 of al Qaeda, the Taliban or associated forces.201 For instance, ODIHR does not agree with the position that the 194 ODIHR meeting with the Department of Defense Office of the General Counsel and Office of Detainee Policy, 5 September 2014. 195 Department of Defense Directive 2310.01E, op. cit., note 14, paras. 3(f), 3(m)(5). See, also, UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, para. 19. 196 International human rights law does allow for some derogation during times of armed conflict. Thus, international human rights law is applicable during armed conflict but it is subject to acceptable derogations given the proper notification is given. As mentioned in the introduction of this report, a lex specialis construction may only be resorted to where there is an irreconcilable conflict between international humanitarian law and international human rights law. 197 United States Supreme Court, Hamdi v. Rumsfeld, op. cit., note 47: “It is a clearly established principle of the law of war that detention may last no longer than active hostilities”. See, also, Third Geneva Convention, Art. 118; Laws and Customs of War on Land (Hague II), The Hague, 29 July 1899, Art. 20, <http://avalon.law.yale.edu/19th_century/hague02.asp>; Convention (IV) Respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land, Hague Convention (IV), The Hague, 18 October 1907, Art. 20, <https://www.icrc.org/applic/ihl/ihl.nsf/52d68d14de6160e0c12563da005fdb1b/1d1726425f6955aec125641e0038bfd6>. See, also, ICJ, Legality of the Threat or Use of Nuclear Weapons, op. cit., note 37, para. 25; ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, op. cit., note 37, para. 106; UN Working Group on arbitrary detention, Obaidullah v. United States of America, Communication No. 10/2013, 25 July 2013, paras. 28-33, <http://www1.umn.edu/humanrts/wgad/10-2013.html>; UN HRC, General Comment No. 31, op. cit., note 36, para. 11. 198 “International Humanitarian Law and the Challenges of Contemporary Armed Conflicts”, ICRC, September 2007, op. cit., note 18, p. 726; “Customary International Humanitarian Law, Rule 99”, ICRC website, op. cit., note 134; Pejic, “Procedural Principles and Safeguards”, op. cit., note 16, pp. 377-379; “The relevance of IHL in the context of terrorism”, ICRC Resource Centre, op. cit., note 24. 199 UN Special Procedures, “Situation of detainees at Guantánamo Bay”, op. cit., note 23, para. 25. 200 This was the stance of the Bush administration. The current stance is that the individual must have been part of or substantially supported al Qaeda, the Taliban or associated forces. All Guantánamo detainees were apprehended under the Bush administration. 201 Mark Denbeaux, Joshua Denbeaux et al., “Report on Guantanamo Detainees: A Profile of 517 Detainees through Analysis of Department of Defense Data”, Seton Hall Public Law Research Paper No. 46, February 2006, <http://law.shu.edu/publications/GuantanamoReports/Guantanamo_report_final_2_08_06.pdf>: A study of Defense Department data found that US authorities only identified eight percent of detainees as al Qaeda fighters, and only 45 percent of detainees 64