16 Jan The Meaning of Common Article Three
Today I’d like to offer thoughts on a few aspects of Common Article 3 (CA3) of the Geneva Conventions.
I’ve heard lots of questions and concerns about why the President wanted to define in greater detail the terms of CA3. Some say, “The military has been able to train to the standards of CA3 for years. How can it be vague?” Others suggest that efforts to define the terms of the article are simply an effort by the Administration to walk back from its binding treaty obligations.
Let me say several things in response to those concerns. First, the U.S. military trains to standards higher than the minimum standards of CA3; it trains to the standards that apply to the detention and treatment of prisoners of war. Thus, it has not had to grapple with precisely what CA3 requires.
Second, some of CA3’s terms are not sufficiently clear about which acts are prohibited and which are permitted. Murder, hostage taking, and torture are quite clear. But which acts constitute “outrages upon personal dignity, in particular humiliating and degrading treatment”? Pictet’s Commentary on CA3 states that the drafters intended to capture only those acts that “world public opinion finds particularly revolting.” Reasonable people can and do differ about what behavior that phrase captures. While this ambiguity may be understandable given the purposes of CA3, a clear definition of what conduct is prohibited was particularly important to us after the Hamdan decision concluded that CA3 applied to the conflict with al Qaida. Because Congress had criminalized violations of CA3 in its 1999 amendments to the War Crimes Act, it was essential that what was criminally sanctionable under federal law be carefully delineated, to provide clarity to both prosecutors and potential defendants as to what conduct was criminal. Thus, the Administration chose to ask Congress to criminalize certain acts that it believed clearly fell within the CA3 prohibitions– such as rape and sexual assault. The Military Commissions Act, which emerged from the Administration’s draft bill, now provides clear guidance on which violations of CA3 are criminal offenses.
Incidentally, the Administration and Congress are not the only entities to have determined that terms in CA3 are vague. The International Criminal Tribunal for the Former Yugoslavia acquitted defendant Mitar Vasiljevic, who was accused of killing five Muslim men, of the offense of “violence to life and person” because the term lacked a sufficiently precise definition under international law.
Some have argued that we are undercutting or violating our international law obligations by not criminalizing each provision in CA3. But the Geneva Conventions do not require High Contracting Parties to criminalize all such violations. Instead, they require Parties to criminalize all violations listed in the Conventions as “grave breaches” (such as those violations in Article 130 of the Third Convention and Article 147 of the Fourth) when committed against “persons or property protected by” that Convention. And, of course, the United States has complied with this obligation. Pictet’s Commentary makes clear that the reference to “persons protected by” in Article 130 and 147 means those individuals defined in Article 4 of the Third and Fourth Conventions, respectively (prisoners of war and protected persons).
The U.S. Government took a different approach in 1995 in its amicus brief in the Tadic appeal in the ICTY, arguing in favor of the view that “grave breaches” of the Geneva Convention should be interpreted broadly to include acts committed in internal conflicts covered by CA3. But the ICTY expressly rejected this argument, noting that “State parties to the 1949 Geneva Conventions did not want to give other States jurisdiction over serious violations of international humanitarian law committed in their internal armed conflicts – at least not the mandatory universal jurisdiction involved in the grave breaches system.” The panel concluded that the grave breach provisions such as those found in Article 130 of the Third Convention “do not include persons or property coming within the purview of CA3 of the four Geneva Conventions.”
We believe the approach reflected in the new legislation – criminalizing as serious violations of CA3 those acts committed during internal armed conflict that represent serious violations of that provision – reflects a good faith interpretation of our obligations under the Geneva Conventions that is consistent with approaches taken by others in the international community. The Article on its face does not require us to criminalize any of its prohibitions; nothing in the negotiating history suggests that the provision was intended to create such an obligation. Even the ICC statute does not criminalize all violations of CA3, but rather criminalizes what it calls “serious violations” of CA3. In this context, we thought it was important and appropriate to be as clear and specific as possible about what prohibited acts trigger criminal liability.
It is true that, before this new law, the War Crimes Act criminalized any conduct that constituted a violation of CA3. But the statute never defined the specific conduct that would have constituted a criminal act, and was arguably, therefore, overly vague. Our review of CA3 led us to the view that certain of the Article’s prohibitions – including the vague prohibition against “outrages upon personal dignity” – were simply too poorly defined and understood to provide a basis for prosecution. Indeed, it is difficult to imagine Congress enacting a federal offense to make it a crime to subject a federal inmate to an “outrage on personal dignity” – but the War Crimes Act, before its amendment, had a comparable effect in armed conflict scenarios. Perhaps because of the absence of clarity, the U.S. government never prosecuted anyone under that statute, even those who committed war crimes against U.S. forces. By providing clear definitions of criminal conduct, we have made the War Crimes Act a more effective tool for prosecuting war crimes in the future.
Of course, any activity that violates CA3, including “outrages upon personal dignity” and the prohibition against the passing of a sentence without previous judgment pronounced by a regularly constituted court, even if not a war crime, still is prohibited, may violate other criminal laws, and would be subject to administrative or other penalties. The Military Commissions Act confirms that cruel, inhuman, and degrading treatment is a violation of CA3, which is absolutely prohibited under U.S. law, and contemplates that the President may issue further interpretations of what constitutes violations of that provision. The Act therefore does not alter our treaty obligations in any way.
Finally, just a word about the Supreme Court’s decision in Hamdan as it relates to CA3. I think the Court’s decision took a number of international lawyers by surprise in holding that CA3 applied to the conflict with al Qaida as a matter of treaty law. Had the Court concluded that CA3 applied as a matter of customary international law, it might have been less surprising, as many commentators have reached this conclusion (although, such a finding probably would not have been dispositive in the Hamdan litigation itself). But given the text of the Article, it was reasonable for the President to have determined in February 2002 that, as a treaty law matter, CA3, which applies to armed conflict “not of an international character” occurring “in the territory of one of the High Contracting Parties,” applied only to armed conflicts that occurred in the territory of a single state. Indeed, the Israeli Supreme Court has just concluded in the Public Committee against Torture case that Israel’s conflict with terrorist organizations – that is, a conflict that is not literally between nations – nevertheless is an international armed conflict, not a conflict to which CA3 applies. Pictet too describes the conflicts referred to in CA3 as armed conflicts that are “in many respects similar to an international war, but take place within the confines of a single country.” The conflict with al Qaida, which has taken place both inside and outside the United States, does not meet that description. The United States, of course, has complied and will continue to comply with the Supreme Court’s decision in Hamdan, but I raise this simply to note that, before that decision, many believed that CA3 applied as a treaty law matter only to internal armed conflicts.