The Meaning of Common Article Three

by John Bellinger

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.


http://opiniojuris.org/2007/01/16/the-meaning-of-common-article-three/

16 Responses

  1. Thanks again, Mr. Bellinger, for your extensive and thoughtful comments, and for emphasizing that all of Common Article 3 remains binding on the Executive branch in the conflict with al Qaeda, even if the MCA has limited criminal sanctions to only one subset of CA3 violations.

    Unfortunately, I think your claim that the reason the White House urged Congress to cut back on the War Crimes Act was that all of a sudden it realized there was a vagueness problem in the phrase “outrages upon personal dignity,” simply isn’t plausible.

    No one noticed that “vagueness” problem when CA3 was incorporated in the WCA ten years ago (in 1997, not 1999). And no one bothered to mention it in the following decade, during which time the WCA criminalized all “outrages upon personal dignity” — whatever that might mean — in all non-international armed conflicts around the world. As long as there was no prospect of our intelligence agencies being held culpable for such “outrages,” everyone was perfectly happy to impose such a criminal standard on governments all around the world, notwithstanding any alleged vagueness or ambiguity.

    Quite obviously, the reason why the War Crimes Act was amended was that after Hamdan, it became evident that the CIA has been engaged in conduct that violates CA3, and the Administration wished to decriminalize such conduct. Moreover, the issue isn’t really “outrages upon personsl dignity.” I suspect the CIA isn’t much interested in the outrageous and inane forms of humiliation — underwear on the head, religious degradation, etc. — that the military used at GTMO and in Iraq. Those things may be illegal, they might violate Common Article 3, but they are not what the Administration sought so diligently to preserve.

    The real action, instead, is on CA3′s prohibition on “cruel treatment and torture.” To be sure, the WCA amendment in the MCA purports to define “cruel treatment” for purposes of criminal sanction, but it adopts a very selective and highly constrained conception of what constitutes “cruel treatment” — a much narrower conception than a fair or reasonable interpretation of Geneva Article 3(1)(a) would provide. (I might add that the MCA definition is anything but pellucid — clarity was obviously not what the Administration had in mind.)

    Under that new MCA definition, “cruel treatment” for purposes of the WCA covers quite a bit, but notably does not encomapss the infamous “alternative” CIA techniques, including:

    – “Cold Cell,” or hypothermia, where a prisoner is left to stand naked in a cell kept near 50 degrees, during which he is doused with cold water.

    – “Long Time Standing,” in which a prisoner is forced to stand, handcuffed and with his feet shackled to an eye bolt in the floor for more than 40 hours.

    – Other forms of “stress positions” and prolonged sleep deprivation, perhaps akin to “Long Time Standing.”

    – Threats of violence and death of a detainee and/or his family.

    Is it just a coincidence that the new definition somehow skirts around criminalization of these techniques? Of course not. The ink was hardly dry on the Administration’s draft WCA amendment before numerous Administration spokespersons eagerly announced that the bill was a green light to the CIA to reinstitute these “alternative” techniques that Hamdan had effectively interdicted.

    (I have more on this topic here and here.)

    Now, please don’t get me wrong: I don’t think that these techniques have in fact been rendered lawful by the MCA. They remain proscribed by CA3 for the CIA, just as they are prohibited for the Pentagon under the Army Field Manual. It would be great if you would publicly confirm that these techniques are, in fact, unlawful under Common Article 3 — but if that were the Administration’s view, presumably it would have said so already.

    What the MCA does do — what it was designed to do — is to decriminalize the CIA’s use of these techniques under the War Crimes Act. Some of them arguably violate the Torture Act, and all of them are off limits to the Pentagon under the UCMJ. But without the prospect of WCA culpability, I’m afraid there will not be sufficient incentive for the CIA to abide by these CA3 treaty obligations.

    The MCA amendment to the War Crimes Act, therefore, was “an effort by the Administration to walk back from its binding treaty obligations.” The CIA’s “alternative” interrogation techniques, and the CA3 prohibition on “cruel treatment,” are the 800-pound gorillas standing in the center of the room, and no amount of hand-wringing over the alleged ambiguity of “outrages upon dignity” can or should make them disappear. With all respect, any discussion of Common Article 3 and the War Crimes Act that does not deal candidly with the CIA techniques and the prohibition on “cruel treatment and torture” only serves to obscure the difficult legal questions, not clarify them.

  2. I extend again my thanks and appreciation for Mr. Bellinger’s comments. As I have highlited in my previous response, I agree entirely with him that Common Article 3 as treaty law applies only to internal armed conflicts. It does, as the ICJ stated in Nicaragua (para. 218), apply also to international armed conflicts, but only as a matter of customary law.

    I disagree entirely with him, however, when it comes to the interpretation of the Israeli High Court’s recent decision on targeted assassinations. The Court DID NOT say that Israel’s conflict with the terrorist organizations legally constitutes an international armed conflict. The Court found that IHL is applicable because Israel is the belligerent occupier of the Palestinian territories. In the words of the Court (para. 18):


    The normative system which applies to the armed conflict between Israel and the terrorist organizations in the area is complex. In its center stands the international law regarding international armed conflict. Professor Cassese discussed the international character of an armed conflict between the occupying state in an area subject to belligerent occupation and the terrorists who come from the same area, including the armed conflict between Israel and the terrorist organizations in the area, stating:

    “An armed conflict which takes place between an Occupying Power and rebel or insurgent groups – whether or not they are terrorist in character – in an occupied territory, amounts to an international armed conflict” (A. CASSESE, INTERNATIONAL LAW 420 (2nd ed. 2005), hereinafter CASSESE).

    This law includes the laws of belligerent occupation. However, it is not restricted only to them. This law applies in any case of an armed conflict of international character – in other words, one that crosses the borders of the state – whether or not the place in which the armed conflict occurs is subject to belligerent occupation. This law constitutes a part of iue in bello. From the humanitarian perspective, it is part of international humanitarian law. That humanitarian law is the lex specialis which applies in the case of an armed conflict. When there is a gap (lacuna) in that law, it can be supplemented by human rights law

    This ruling of the Israeli Supreme Court is a world away from the administration’s argument regarding the war with al Qaeda.

    I also fully second Marty’s comments on the administration’s motivation behind all this legal obfuscation, the point of which is not to establish which legal rules indeed apply, but to make it so that no rules actually apply.

  3. Since I believe that the question I made in your first post has been answered by you in the affirmative sense through this last one, I’ll pose a different one. As you are aware, a criminal complaint has been filed in Germany which, among other defendants, includes three government lawyers — John Yoo, Jay Bybee and David Addington — for their purported role in the creation of the legal framework that would somehow give cover to the executive’s orders in relation to the treatment of “enemy combatants”. In this post you go to great lengths in an attempt to construe the idea that it is perfectly reasonable to have doubts in relation to the interpretation and true extent of Common Article 3 and all related statutes, and that many reasonable people have had them. Actually, according to the Washington Post, you, acting then as chief legal adviser to the national security adviser, expressed certain doubts regarding the way that the above-mentioned Justice Department lawyers were interpreting the aforesaid norms in their Office of the Legal Counsel memos. Here’s my two-fold question: Was Yoo’s and Addington’s interpretation questioned by you because it reasonably differed from yours, or was it because it simply wasn’t reasonable? Would it be reasonable to maintain, as Mr. Yoo publicly has, that the President of the United States of America can, in the present state of war, legally order that a suspected terrorist’s child be tortured?

  4. It’s nice to stop by, I suppose, but official position papers on these issues are already available–I KNOW what the offical line on Common Article 3 is–is there going to be any actual answering of questions?

  5. I think Marty Lederman’s comments about maintaining a hole in the law available for executive branch interpretation is right. This is not a brand new idea. Review Ken Anderson’s blog on 26 and 27 September 2006 (excerpt below) http://kennethandersonlawofwar.blogspot.com/

    “Alan G. Kaufman said…

    I am not so sure that the debate is (or ought to be, at this point) over exactly what kinds of coercive interrogation techniques or acts constitute “torture,” and which of those coercive acts or techniques we should or should not accept, as it is over what coercive interrogation acts or techniques, not constituting torture, nevertheless do amount to cruel, inhuman and degrading treatment, or outrages upon dignity, and should or should not therefore be prohibited.

    Isn’t the real objective here, from the administration point of view, to create a lacunae — or leverage the lacunae I describe above — to permit executive branch interpretation of law of war to permit coercive interrogation techniques that some would view as illegal because they are cruel, inhuman, and/or degrading?”

    Alan is right – I was focused on torture because it is what Goldberg was writing about. But certainly it applies with equal force to all the other controversial interrogation techniques. Whether you are talking about torture, degrading treatment, any of these categories, I won’t be happy unless they are connected precisely and without euphemism to concrete practices. And I agree that the administration is seeking to exploit lacunae in the legislation to permit, as Alan says, executive branch discretion in this. Indeed, I would say it goes one step further – it wants to have its cake and eat it, too, in having discretion to interpret, but at the same time announce that there is sufficient specificity to protect US officials.

    I don’t actually think it can have it both ways here – if there is to be sufficient specificity about what coercive interrogation is legal, it will be sufficiently specific only if it effectively removes the executive’s discretionOtherwise, well, I at least would have a lot of concerns as a US official about what might happen down the road. My view is that people are seriously divided as to these things per torture, but also per coercive interrogations – I would guess, perhaps, that Alan and I would differ on some of these things – and in that case, legislation is not very useful if it does not get down to specific cases. The current legislation does not do that, and it will, in my current estimation, not pass muster with the Supreme Court, which will find it too clever by half. Nor does it really do what legislation on a deep moral disagreement within the populace has to do – require that legislators make clear where they stand. This still does not do that. I want to know where every member of Congress and the Senate stands on each of these things. I don’t want lacunae. I want legislators to vote and everyone to know how they voted. I also think that is what the Court wants – a plain unvarnished statement from the legislature that engages in no papering over of differences.

    I realize that I have not addressed the substance, but here I am more concerned about the process by which a democracy resolves issues on whose substance its members are deeply divided.”

    ________________________

    A commenter identified only as “Stephen” added:

    “Yes, there has been an assumption that the interrogation techniques under question constitute torture. However, I believe this assumption has been made because people sincerely and unequivocally believe it is torture. While I side with that group, questioning both the utility of the methods and the morals.

    agree that there needs to be precise language put forth on what does or does not constitute torture–then we can debate the merits of those methods.

    Yes, the real goal here was to create a lacunae, and they achieved it. The bill gives them broad interpretive power for the Geneva Conventions.

    You nailed it on the head. The vagueness of the legislation–damning though it may be to the rule of law–gives the administration what it wants, while allowing the congressmen to pretend they dissented on principle and reached a “compromise.”

    The most troubling aspect of this bill, however, is the suspension of habeas corpus for suspected ‘enemy combatants.’ . . . ”

  6. Katherine, from the post by Roger Alford welcoming Mr. Bellinger:

    Bellinger will conclude his stint as a guest blogger with a final post that responds to some of the more salient comments during the week.

    I don’t know if this includes yours, but it should at least answer your question.

  7. Thanks again for taking questions. I hope, you would find time to answer them as well (in the last topic none were answered).

    Could you please expand further on these two elements of your expose and my comments?


    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.

    This doesn’t sound like a full account of what happened. If I recall correctly, before Hamdam was decided, the administration was of the opinion that it knew quite well what CA3 prohibited: the commander in chief was only bound by national law and national standards (because of the reservation made to CAT). In 2002 a draft opinion was circulated that stipulated that unless lasting organ failure resulted from interrogations, there was no violation of CAT3. After the draft memo became public, there was public outrage and in january 2005 a new approved memo was circulated in which, the administration seemed to take a less harsh approach. Of course where the new memo did not explicitly repudiated the old one, a grey area exists: must the old memo be seen as the administration’s point of view, the new memo, or something else.

    Then came Hamdam, in which the Supreme Court stated that the treaties are binding on the US and that the standard set in the treaties should be used in interpreting the US standard. The view that a very narrow reading of US constitutional guarantees for foreigners was no longer enough.


    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. (all emphasis, mine)

    In my view, the problem only came into existence because the adminstration adopted the controversial position that the detainees were not to be treated as POW, but as something else with the minimum standard of CA3. This was a policy choice, not a legal necessity. The way you’ve formulated, it seems as though the administration was forced by some power, to change the applicable standard.


    The U.S. Government [...] in the Tadic appeal in the ICTY, [argued] 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 [..].”

    My third point is that while interpretation international law, it seems as tough you made an error here. It looks like you are mixing up a question about the scope of the article with the question of who will have jurisdiction. It might be my misreading of Tadic, but I don’t think you can read a substantive argument into the Court’s reasoning on jurisdiction

  8. Mr. Bellinger states:

    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.

    While one might think that the “purpose” of CA3 (particularly given the ambiguities that Mr. Bellinger mentions) was to inform the parties that treatment that was “humiliating and degrading” (or even “revolting”) was not morally and legally permissible, and thus set the tenor of the debate, it would seem that efforts to ‘clarify’ the limtis would instead appear to be an attempt to see how close to any “bright line” one might come, in order to do as much as ‘legally’ possible despite the strictures of CA3. To me, at least, such an effort to encroach as close to the scrimmage line as possible would seem to be avoidance of the intent of CA3, rather than an attempt to carry out and implement the provision.

    Cheers,

  9. Mr. Bellinger says:

    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.

    The Article doesn’t criminalise specific actions (nor “require” the consenting parties to do so) because it is a treaty which binds the consenting parties whether or not they actually pass internal laws (or issue internal regulations) prohibiting the proscribed acts as well.

    The question of whether these acts were criminalised came up (indirectly) in the context of a U.S. court, acting under U.S. law, deciding what U.S. law is. Whether CA3 itself was sufficient to place limits on U.S. executive action wasn’t addressed, because the U.S. Supreme Court decided that U.S. law incorporated CA3 into statutory law, so that statutory law was sufficient to resolve the issue.

    Whether there’s a U.S. statutory law prohibiting the maltreatment of detaineess, however, doesn’t affect whether CA3 does so. CA3 had all the legal effect of a duly ratified treaty at the time of ratification, regardless of any statutory implementations any of the signing parties had executed at that time.

    [Mr. Bellnger]: 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.

    It may be that this phrase might be sufficiently vague in some circumstances to be able to clearly define what is prohibited and what is allowed, and thus “void for vagueness”. But to read it as a nullity should also be wrong. There have to be cases where it is sufficiently obvious that the conduct is an “outrage upon personal dignity” (say, tattooing a swastika on a Jew, or, perhaps, smearing menstrual blood on a Muslim?) that there can be no question that the conduct is prohibited. The words, even if not as specific as Bellinger (or any prison guard) might want, have to have some meaning.

    Cheers,

  10. FWIW, the ICRC provides commentaries on CA3, in particular WRT “conflicts not of an international character” and on the issues and difficulties with the definition of such conflicts and the protection of persons in such conflicts. Even recognising the problem of distinguishing common criminals and “brigands”, the general tenor is that protections are to be extended as broadly as possible.

    Cheers,

  11. jack–oops, missed that. I’m more interested in seeing others’ questions answered than my own, frankly, but here’s another:

    if “clarity” is the real goal, why did the administration decided that a vague order to interrogators to treat prisoners “humanely” was a sufficient substitute for the Army Field Manual and the Geneva Conventions?

    Especially given that DOJ lawyers have stated:

    –the term “humanely” was not “susceptible to a succinct definition”;

    –that they were not aware of any guidance from the White House on what it meant;

    –that they could not say whether it forbade waterboarding, mock executions, beatings, and stress positions because that would depend on “individual facts and circumstances”;

    –that they could not comment on whether treatment could be “abusive and degrading” yet still humane.

    Clarity was not the goal; it’s just not plausible. And this argument:

    “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.”

    is worse than implausible.

  12. Mr. Lederman,

    I remember one of your posts on this matter on Balkinization a while ago that suggested that simply because a provision is broad does not make it vague. I think that was an apt response.

    But there are certainly other texts that have found international standards on “cruel, inhuman or degrading treatment” vague. Burgers and Danelius in their Handbook on the Convention Against Torture referred to its CIDT provision as referencing a “vague concept” (should be around page 149). Bassiouni has also described these provisions in international criminal law as having some principle of legality concerns. Some Circuit Courts have held that the term is too idefinite for ATCA jurisdiction (Aldana v Del Monte in the 11th is the case I’m thinking of, but there are other problems with that decision). I don’t know if any of that is exactly on point for domestic legislation or Geneva (or if my read on these texts is at all correct), but it wouldn’t be the first time domestic law imported wholesale broad international law concepts without thinking through careful legislative drafting.

    That said, there is certainly a difference between a broad provision and a vague one. Defining it specifically is an invitation to flaunt the law and create mechanisms of cruel, inhuman or degrading treatment that go right up to the legal line and that’s what the administration has done.

  13. Mr. Bellinger,

    You know as we know that your position paper is just an apologia for U.S. war crimes at the highest level – or else you are in denial. Whle it might have worked with Congress on the MCA, concerned for its own role in acquiescing in the things that you have permitted to go forward, it did not work here and it will not work in other fora. You always have the power to resign in protest as Cy Vance did years ago.

    Best,

    Ben

  14. Two brief comments on the vagueness issue:

    1. Of course, the prohibition of vague criminal statutes (and other criminal law) is reflected in all human rights instruments, notably in Article 7 of the European Convention on Human Rights and Article 15 of the International Covenant on Civil and Political Rights. But this has not prevented the relevant supervisory organs to find that the State’s positive obligations under the prohibition of torture and inhuman and degrading treatment or punishment extended also to an obligation to introduce and properly apply criminal provisions against such practices as between private persons: see e.g. A v. United Kingdom, paras. 22-24.

    This positive obligation to prosecute may not extend to all cases of inhuman and degrading treatment, but only to the more serious cases, but its existence in this limited respect at least confirms the point made several times above that a provision is not ‘void for vagueness’ in toto if there remain cases to which it undoubtedly and without any lack of clarity applies.

    2. Indeed, this last point has been taken at common law quite recently, and in what may be the paradigm case of confusion over considerable parts of the definition: the British House of Lords has decided that there was, in customary international law, a crime of aggression, insofar as no disputed elements are present in a given case: R v. Jones (Margaret) [2006] UKHL 16, [2006] 2 WLR 772, paras. 19, 59, 99 (per Lords Bingham of Cornhill, Hoffmann and Mance, respectively) (see also R v. Rimmington [2005] UKHL 63, [2005] 3 WLR 982, and my post on R v. Jones here).

    I only add this to bolster the argument, which I consider to be rather obviously correct, that just because a criminal statute may be ill-defined in some respects and therefore rightly inapplicable to some cases, does not mean that it cannot apply even where it has been very clearly violated. Why, after all, allow someone to profit from a human right the prerequisites of which are not fulfilled in his case, but only, albeit with respect to the same ‘vehicle of State interference’, in someone else’s case?

  15. Doesn’t the US Army court martial people for “conduct unbecoming an officer and a gentleman?”–sometimes with a decades-long sentence?

  16. The U.S. Supreme Court in U.S. v. Smith held that a federal criminal statute that merely referred to the “law of nations” for the definition of piracy was sufficiently defined. The Supreme Court in Geoffroy v. Riggs also held that the meaning of treaty language is “to be taken in their ordinary meaning, as understood in the public law of nations”. There is an enormous body of international case law (from the UN Hum. Rts. Ctte, Ctte Against Torture, Inter-Am. Cm. &Ct. H.R. and Eur. Ct. H.R.)defining inhuman and degrading treatment during armed conflicts that, therefore, must be used to define CA3. Many of these cases are on point regarding sleep deprivation, stress positions, and hypothermia. See Martin, et al., International Human Rights &Humanitarian Law (Cambridge Univ. Press 2006). I find it remarkable that some folks still find the CA3 unconstitutionally vague in light of this law.

    If the OLC or State Dept. should still find that CA3 is vague, would the OLC or State Dept. (consistent with art. 31(3)(b) of the Vienna Convention on the Law of Treaties) find hooding, waterboarding, hypothermia, stress positions, and sleep deprivation practiced by another GC state-party against U.S. military personnel and nationals who have allegedly committed war crimes or terrorist acts to be acceptable under CA3?

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