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Print This PageSo Maybe Hamdan is a Big Deal After All
Marty Lederman, the tireless blogger-critic of the Administration’s detention and interrogation policies, argues that because the Supreme Court has held that Common Article 3 of the Geneva Conventions applies to the war with al-Qaeda, “[p]er today’s decision, the Administration appears to have been engaged in war crimes, which are subject to the death penalty.” (He further notes that such prosecutions are unlikely for past actions because they were undertaken pursuant to legal advice).
Still, this is a startling conclusion. It is echoed by Professor Derek Jinks of U.Texas, who argues in a WPost discussion that the Court’s ruling will “likely have far reaching consequences for rendition and interrogation policies.”
I was originally a bit baffled about these claims because the Court’s decision went out of its way to avoid a clear holding on whether the Geneva Conventions apply of their own force, as a self-executing ratified treaty. Rather, the Court several times pointed out that the Geneva Conventions apply because Congress has incorporated them by statute as a limitation on military commissions. This means that, per the Court’s holding, the Geneva Conventions are judicially enforceable against the military commissions, but it doesn’t have any effect on whether the Geneva Conventions are judicially enforceable against other U.S. policies, such as rendition.
If I now understand Marty’s argument correctly (see his comments to my post below), however, Congress has also incorporated Common Article 3 into the War Crimes Act, 18 U.S.C. s 2441(c)(3). This does not, however, automatically criminalize all other U.S. policies toward al-Qaeda. Rather, the Court would have to separately determine whether or not the various techniques of detention or interrogation violate Common Article 3′s prohibition on “cruel treatment”, torture, “outrages upon personal dignity”, and “humiliating and degrading treatment.” In theory at least, all such activities are already prohibited by the McCain Amendment and President Bush’s policy determination to treat all detainees “humanely”, so I am somewhat doubtful as to this holding’s practical significance. Moreover, I suppose the Court considering such a prosecution would also have to determine whether the individuals being detained and interrogated qualified as “persons taking no active part in the hostilities,” which is another requirement for Common Article 3 protection.
But, having thought about this some more, it is indeed possible that Common Article 3′s application to Al Qaeda will sharply change current U.S. policies on interrogation and rendition and the war on terrorism in general. It is not so much that criminal liability might ensue, but more that the courts will not likely give lots of deference to the President’s interpretation of Common Article 3 since they didn’t here in Hamdan. So maybe Hamdan is a big deal, after all.
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Nice title for a post, Prof. Ku. I congratulate you for the very humble, gracious way in which you *admit* your gross, continuing mistake on the single most important issue involving the US and international law during (at least) the past five years. I respectfully submit this alternative (paraphrasing one of your own posts of June 28th): U.S. Supreme Court to Bush administration and conservative internationalist lawyers – You’re Wrong, Wrong, Wrong!
at 4:03 am EST randomopinion
Julian: The McCain Amendment only proscribes what the Due Process Clause would prohibit within the U.S. And the “shocks the conscience” test under the DPC is very context-dependent and (thus far) indeterminate), especially in this context (interrogation of enemy aliens for purposes of interdicting future terrorist acts). See part 2 of this post.
But the standards of Common Article 3 are much more restrictive, as its plain terms indicate: It proscribes, inter alia, cruelty, “outrages upon personal dignity” and “humiliating and degrading treatment.” These standards are not “contextual” — they don’t shift with the reasons for the interrogation — and they clearly prohibit much of what the Pentagon and CIA have been doing (e.g., waterboarding, hypothermia, extremely prolonged sleep deprivation, religious denigration), although admittedly there will be ambiguity at the margins of some techniques, e.g., When does sleep deprivation cross the line? Perhaps more importantly, the McCain Amendment has no enforcement mechanism, and therefore if OLC adopts a very narrow view of what is proscribed, the CIA and DOD would have no problem following that legal advice. But CA3 violations are punishable as war crimes, and therefore I imagine CIA and DOD interrogators and counsel will be very wary of going close to the legal line — as they should be.
at 5:05 am EST Marty Lederman
The common article 3 aspect of the decision will, in my opinion, have a very significant impact on policy development and implementation throughout DOD and other government agencies.
For at least three decades prior to 9/11, it was presumed throughout those agnecies that the principles reflected in common article 3 applied to ALL armed conflicts as a matter of law, and ALL other military operations as a matter of policy. This was a foundation of the DOD Law of War policy directive. The analysis that followed the attacks of 9/11 resulted in the position that although the fight with al Qaeda was an armed conflict triggering the “authorities” of the law of war, the minimal “obligations” reflected in common article 3 were inapplicable because of the “international” scope of the conflict.
Many students of the law of war in DOD objected to this interpretation, but in the end they could point only to the same sources of authority relied on by the proponents of this approach. There were a few lower court decisions touching on common article 3, but there was no truly compelling judicial interpretation of the application of the law of war to the fight with al Qaeda. The Supreme Court has now provided this crucial interpretation to proponents of applying this clear and unambigous humane treatment mandate to every aspect of this conflict.
The link to Article 21 of the UCMJ does not, in my opinion, restrict the impact of the interpretation. Article 21 was simply provided the required context to for interpreting the law of war, but there is no reason to conclude that the interpretation of the applicability of common article 3 is restricted to Article 21.
Just imagine the next meeting where the question is asked “well, where does it say we can’t authorize . . . ?” Now, in addition to all the prior arguments in response, proponents of compliance with this baseline law of war standard can rely on Hamdan as a conclusive determination that common article 3 applies to this conflict.
at 10:31 am EST Geoffrey Corn
I must confess that I am not quite certain what Justice Stevens actually held in his discussion on Common Article 3. As a matter of international law, the Geneva Conventions and all of international humanitarian law are applicable only in either an international or a non-international armed conflict.
Al Qaeda cannot by definition be a party to an international armed conflict, as it is not a state. See the ICRC’s official position here. Its members can come under the purview of IHL if they take part in hostilities between to sovereign states, such as the US and Iraq, or the US and Afghanistan, or through the subsequent application of the law of belligerent occupation.
In such cases, e.g. in the armed conflicts in Iraq and Afghanistan, Al Qaeda members would be unlawful, unprivileged or illegal combatants (and this is btw quite a legitimate category, as reciprocity and mutual respect of the rules are one of the primary mechanisms of enforcing IHL). As they are unprivileged combatants they would not be protected under GCIII, i.e. they would not have POW status, though they might fall under the protection of GCIV. However, even so, that does not mean that IHL does not grant unpriviliged combatants ANY protection. Article 75 of Additional Protocol I grants numerous protections to unlawful combatants, in more detail than Common Article 3 which applies only to non-international armed conflicts. Art. 75 is applicable even to those categories which are by definition unprivileged combatants, such as spies and mercenaries. And, most importantly, even though the US is not a party to AP I, it has consistently stated that it regards Art. 75 as evidence of customary law. See e.g. William H. Taft, IV, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int’l L. 319, 322 (2003)(“[the United States] regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled.”)
If, however, we are talking about non-international armed conflicts, they do not even recognize the categories of lawful or unlawful combatancy. Why – well, because states did not wish to extend the privilige of combatancy, i.e. the right of a combatant in an international armed conflict not to be tried for his participation in the conflict, but only for war crimes, to those who rebel against them. In non-international armed conflicts states can try members of rebel forces for treason, ordinary murder, and so on. CA3 applies only in these conflicts.
So, as far as international law is concerned, there are several possible situations, regarding the “war” on terror:
(1) a member of Al Qaeda can take part in an international armed conflict, i.e. a conflict between states, in which he would be an unlawful combatant, but would still have to be accorded the protections of Art. 75 AP I. He can be lawfully detained until the inter-state conflict ends.
(2) a member of Al Qaeda can take part in a non-international armed conflict, e.g. North Alliance/Afghan government v. the Taliban, or the conflict between the Tamil Tigers and the Sri Lankan government, and is entitled to the protections of CA 3 if captured. This seems to be the Hamdan scenario. International law provides no privilege of belligerency to such combatants, and they may be tried for domestic criminal acts, e.g. “membership in a terrorist organization” or for war crimes.
(3) a member of Al Qaeda may be captured without actually participating in any kind of armed conflict recognized by international law, e.g. a terrorist is captured in Germany while preparing a bomb, or, better yet, that horrible Moussaoui fellow. IHL, including CA3, has absolutely nothing to do with such a scenario, and does not apply to that person at all. He is simply not a combatant of any sort. The only part of international law which does apply to him is international human rights law, which firmly prohibits indefinite detention.
Justice Stevens’s discussion in Hamdan does not make it clear whether CA 3 applies even to situation (3), i.e. whether mere membership in Al Qaeda is enough for combatancy. Again, as far as international law is concerned, the Geneva Conventions are totally inapplicable to such a scenario.
at 11:10 am EST Marko Milanovic
I must admit I find it extremely troubling that our “outrages upon personal dignity”, and “humiliating and degrading treatment” can now potentially fall under the heading of “war crimes” in a conflict where the barberous fanatics we’re fighting have no compunction against killing and maiming civilians of any type and slaughtering hostages.
Justice Stevens proves, once again, that an age limit or term of years should be set for sitting Supreme Court justices.
As for Randomopinion’s back-patting, such Kos Kidz-like behavior only displays the fatuousness of ideologues who can’t see the forest for the trees.
at 11:46 am EST Cassandra
I suspect Julian will be a lot less confused about the significance of CA3 and 18 USC 2441 when Bush, Cheney, Addington, Yoo, Gonzalez, and Rumsfled, et al, are finally indicted and convicted for war crimes.
It isn’t even close: their own statements on the public record are sufficient to convict them on a directed verdict. The PMO and the 2002.02.07 Bush Geneva Memo by themselves amount to signed confessions.
at 12:20 pm EST Charles Gittings
Marko,
Is it possible to think of the detainees in Gitmo as civilians? Then they would get consideration under the GC. One argument is that many of the people we have there are not actually members of Qaeda or the Taliban…in that sense, perhaps they should be treated as civilians in the war with Afghanistan, ne Qaeda. After all, many of the detainees may have little to no actual involvement in any armed conflict.
at 1:22 pm EST Aaron Ostrovsky
Aaron,
Only SOME of the detainees in Guantanamo can qualify as civilians, and that number is actually less then you might think at first glance.
If a person is just picked up in Afghanistan, then he may have the protection of Geneva IV, which applies only in international armed conflicts, except, of course, for Common Article 3.
Whether these persons have the protection of Geneva IV or not depends on their nationality. They are not protected if they are nationals of the occupying power, while nationals of a neutral state who find themselves in the territory of a belligerent state, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the state in whose hands they are. Rather convoluted, but that’s the way it is. So, an Australian civilian captured in Afhanistan and taken to Guantanamo is not protected by Geneva IV. He is protected by the customary rule enshrined in Article 75 of Protocol I, though.
It is interesting how Justice Stevens discusses Article 75. He does not address its customary nature, but uses it as evidence of what the “judicial guarantees which are recognized as indispensable by civilized peoples” from Common Article 3 actually are (on p. 70). But then on p. 71 he explicitly states these principles are part of customary international law. Justice Kennedy at p. 19 of his opinion is not happy with that.
On the other hand, as the “war” with Al Qaeda is not an international armed conflict, any civilian associating with Al Qaeda, say a businessman supporting them financially, who is NOT captured in Afghanistan or Iraq, does not have any protection from international humanitarian law. IHL is simply not concerned with him. That also means that this person cannot be held in military detention and cannot be tried by a military court for violations of the laws of war, as these laws don’t apply. He could only be tried by a civil court, say for the crime of financing terrorism.
at 2:42 pm EST Marko Milanovic