Ken Anderson on The Hamdan Buzz

by Roger Alford

Professor Ken Anderson has some belated and interesting commentary on the Hamdan decision over at his blog. He questions the buzz about the wholesale application of the Geneva Conventions in light of the characterization of the war on terror as a conflict “not of an international character.” Here is an excerpt:

[T]here are analytic problems with the Court’s reasoning here – historically, Common Article Three was intended to cover civil wars and internal armed conflicts, wars within the territory of a state, not international wars, and to provide a minimum – note minimum – level of humanity in how they were conducted. The characterization of the US invasion of Afghanistan, even somehow limited to the Al Qaeda part, as a war not of an international character is analytically questionable, even taking into account the fact that an important party in the conflict, Al Qaeda, is a non-state actor. It is true that the Bush administration made this distinction of “two” conflicts; I think it was as dubious on briefs as it is in the opinion, because it requires a wholly artificial distinction that simply does not exist on the battlefield. Analytically, on the one hand, far from a civil war between a government and nonstate actors within the territory of a state, the Afghanistan war is the invasion of the territory of a state by another state – the cuts against calling it an armed conflict “not of an international character.” On the other hand, if you conceive of the war against Al Qaeda as a conflict separate from the conflict against Afghanistan, then because Al Qaeda is a nonstate actor, Common Article Three might apply, because it is one of the few parts of the Conventions (besides, eg, the POW definitions applicable to resistance groups in III Geneva article 4) applicable to nonstate actors as such.

(But it striking how Justice Stevens interpreted the language of Common Article Three – not by looking at official ICRC commentary on the diplomatic conferences and what they intended, for example – but instead by consulting, among other things, Webster’s dictionary. If I were the ICRC’s lawyers, I think I would be quietly unhappy with how it is that US courts go about interpreting legal documents with their own long legal histories.)

Analytically questionable or not, the Hamdan decision has applied Common Article Three on the basis of a finding about the nature of the armed conflict. But that finding – that it is a war “not of an international character” – has other consequences that perhaps the Court considered, perhaps not. Certainly the press commentary does not seem to have considered it. Viz., if we are dealing with an armed conflict “not of an international character,” then it is not an international armed conflict. And if it is not an international armed conflict, then (so far as I can tell on an initial read) nearly all of the rest of the Geneva Conventions do not apply to these detainees, because the rest of the Geneva Conventions apply on their terms only to international armed conflicts….

What Common Article Three gives to detainees, present and future, is the promise of humane treatment. It is a minimum, and deliberately far below what is promised to protected persons under the full Geneva Conventions. It is quite misleading for press reports, for example, to refer to Hamdan as imposing the Geneva Conventions when what is imposed are default minimum standards of humanity where the Geneva Conventions as normally thought of do not apply. And what constitutes humane treatment, including the various specifics found in the text of Common Article Three, is open to considerable interpretation. For that reason, the ability of private parties to bring actions directly under the Geneva Conventions is a key question under Hamdan – and a key question that should be addressed by Congress.

So I think Hamdan has done much less than the buzz indicates – or perhaps this is an attempt by the activist community and the press to make a certain interpretation of Hamdan self-fulfilling prophecy. I don’t know. But I do think that it raises the possibility of legal results in international humantarian law that the Court itself did not anticipate. Maybe it considered the fact that if Common Article Three applies, nearly all the rest of the Conventions do not – maybe it didn’t.

Read the whole thing.

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