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Print This PageThe MCA and Interpreting the Geneva Conventions
There is one aspect of the Military Commissions Act that appears to have been overlooked by most commentators thus far. It is an extremely important provision as it relates to how the courts will interpret the Geneva Conventions as implemented through the MCA.
Section 6 of the MCA includes a number of important interpretive instructions regarding the implementation of the Geneva Conventions. First, it declares that the provisions of the relevant statute, 18 U.S.C. 2441 as amended by the MCA, “fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide an effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character.” Then the statute stipulates that “[n]o foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.” It then includes a provision on interpretation by the President that essentially says that (a) the President has the authority to interpret the meaning and application of the Geneva Conventions; (b) any such interpretations shall be promulgated by Executive Order; and (c) any such Executive Order shall be authoritative (except as to grave breaches in common Article 3) as a matter of United States law, in the same manner as other administrative regulations. Finally, it provides that “[n]othing in this section shall be construed to affect the constitutional functions and responsibilities of Congress and the judicial branch of the United States.”
I would be curious what others think of these interpretive provisions and what they seek to and will achieve. I read the provisions as a multi-pronged attempt to limit the judiciary’s interpretive role with respect to grave breaches under the Geneva Conventions. It does this by (1) a statutory declaration of international compliance, (2) a grant of executive power to authoritatively interpret the meaning of the international obligation, (3) a prohibition on the judicial branch from relying on foreign and international sources in rendering decisions with respect to grave breaches, and finally (4) a declaration of constitutionality with respect to these interpretive provisions.
I am not aware of comparable legislation that limits the power of Courts to rely on particular source material in their interpretive process. It clearly reflects a conservative backlash against the movement toward international comparativism generally and Hamdan specifically. I would be curious if others know of similiar provisions in other legislation. Does this portend a similar approach with future legislation?
I also wonder whether one can construe this as consistent with congressional authority under Article III(2) of the Constitution. It’s not jurisdiction stripping in the traditional sense. Rather it is an attempt to limit judicial authority to look at certain source material in construing statutes. Does this qualify as an “Exception” or “Regulation as the Congress shall make” of federal courts under Article III?
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Roger:
I agree with your analysis in your third paragraph. I think that the result is not only jurisdiction stripping (I think that occurs in the part saying that the Geneva Conventions may no longer be argued in the courts of the U.S.) but, more importantly, Congress stepping into the interpretive process.
We know that Congress, in certain circumstances, can take jurisdiction away from federal courts but I think that telling courts how to interpret the law will be challenged on Separation of Powers lines. Bills trying to prevent the courts from referring to foreign or international law have been rattling around Washington for a few years now, but could never get a majority of both houses. I think this was seen as a chance to bury such a provision in national security legislation to set the marker in at least one specific area.
Along those lines, I see nothing strange in saying that the President has the power to interpret the Geneva Conventions, as both Congress and the courts have traditionally given wide latittude to interpretations by the Executive. However, this was a matter of deference, not of exclusive competence. What I think is troubling here is, as you note, the confluence of underlining Executive power, stripping the courts of jurisdiction over the Conventions, and telling the Courts the process by which they may interpret Sec. 2441, the sum total of which is interpretive power is shifted from the courts and to Congress and the Executive.
at 2:54 pm EST Chris Borgen
Roger,
This provision is really difficult to comprehend, because it is impossible to have a “grave breach” within the context of a non-international armed conflict. It is therefore also impossible to have a “grave breach” of common article 3.
In each Convention, Grave Breaches are defined as certain offenses committed against “protected” persons or property. Protected person and property are not used in the generic sense, but are instead legal terms of art. The treaty articles that define “protected person” or “protected property” within the meaning of the Conventions, and therefore within the meaning of the Grave Breach provisions, always follow Common Article 3. However, because Common Article 3 is a self contained provision of the Conventions, it is impossible to reach these treaty articles through the conduit of Common Article 3. Or, in other words, a “protected person” or “protected property” can only exist in the “right kind of conflict” – an international armed conflict within the meaning of Common Article 2 (for example, a prisoner of war, or a wounded or sick individual, or a civilian in the hands of a belligerent power).
Unlike Common Article 3, Common Article 2 has no substance, but is purely a trigger for application of all other articles of the Conventions, EXCEPT Common Article 3. Accordingly, you only “reach” the article defining protected persons and property in each Convention through the conduit of Common Article 2.
This issue was addressed by the ICTY in the first opinion that responded to a challenge to the jurisdiction of the Tribunal. In the Tadic case, the ICTY Appeals Chamber first held that the alleged offenses occurred within the context of a non-international armed conflict. As a result, it then held that Tribunal lacked jurisdiction over the alleged grave breaches because such offenses were only viable within the context of an international armed conflict.
I still have no idea why such imprecise language was used to distinguish between those violations of Common Article 3 transformed into Federal felonies, and other violations that do not qualify as such. I know one of the asserted objectives of the amendment was to extract from the felony sanction provision “minor” violations of Common Article 3, but using the term “grave breach” of Common Article 3 has really confused the issue and mixed proverbial “apples and oranges.”
However, there is one important aspect of this that I think is also overlooked: The US was never obligated by the Conventions to provide for criminal sanction of Common Article 3 violations. This obligation is imposed only for Grave Breaches, and as I note above, Common Article 3 violations cannot fall into this category. The original criminalization of Common Article 3 was therefore purely voluntary by the US. In fact, the original version of the War Crimes Act passed in 1996 did not include such a criminalization, but was limited to Grave Breaches in order to implement the obligation imposed on the US by Article 129 of the GPW and analogous provisions in the other Conventions (although even then it did not go far enough because it did not, and still does not, allow for prosecution of violators with no connection to the US). While I understand the perception that scaling back on the scope of this criminalization appears to abrogate US commitment to Common Article 3, I know that many military practitioners viewed this as simply refining the WCA to limit felony liability to only serious violations of that Article (although that raises the question of why the amendment did not create a misdemeanor provision for the residual violations).
One more point. The provision granting the President the authority to interpret “application” of the Geneva Conventions may be the real “Trojan Horse”. Remember, the jurisdictional predicate for ANY felony prosecution under the WCA is that Common Article 3 applies to the situation. This in turn requires a determination that an interrogation occurred within the context of a non-international armed conflict. If the President has plenary authority to interpret application of the Geneva Conventions, than his interpretation that a particular interrogation was not within the context of an armed conflict (lets say the detainee was captured by FBI agents in someplace other than Iraq or Afghanistan) would prevent a prosecutor from alleging a violation of this statute. Seems to me to be the ultimate “get out of jail” card, because it prohibits prosecution per se!
at 11:05 pm EST Geoffrey Corn