Some Questions About Unlawful Combatants

by Michael Ramsey

[Opinio Juris welcomes Professor Michael Ramsey as a guest respondent. He is a professor of law at San Diego School of Law and an expert in foreign relations law.]

My thanks to Opinio Juris for setting up this fascinating exchange and for inviting me to participate, and to John Bellinger for taking time to provide such thoughtful posts. As somewhat of an outsider to this area (my principal field is the constitutional law of foreign affairs), I find that I have more questions than answers.

Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4) or by Common Article 3 (because the conflict is “of an international character”). It seems fairly inescapable that there is such a category (whether or not Taliban or al-Qaeda fighters are in it). Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework. It also seems inescapable that, prior to Geneva, the extensive protections contained in the Fourth Convention did not apply to irregular fighters (that is, those who would fail the Article 4 test). The Fourth Convention’s text seems unclear on whether it covers such persons, since it covers “civilians” (which might or might not include irregular fighters). Do commentators critical of the U.S. position contend that the Fourth Convention’s signatories in 1949 intended to extend its elaborate protections to irregular fighters, contrary to traditional practice? Is that how the Fourth Convention was interpreted immediately after it was ratified? If not, what theory of interpretation allows us to be so certain of today’s meaning? (And for that matter, even if the intent was clear in 1949, are we certain that treaties’ meanings can’t evolve to adapt to new circumstances, as is often said of the Constitution?) These aren’t meant as rhetorical questions, as I haven’t studied the history of Geneva, but I have also not seen much reliance upon it.

On the other hand, for Mr. Bellinger’s side, if the Fourth Convention does not cover persons in this category, doesn’t that create a strange asymmetry: irregular forces in a civil war have the protections of Common Article 3, but (if the U.S. position is right) irregular forces have no protection at all in an international conflict? Is there any evidence that Geneva’s signatories wanted to give more protection to irregulars in civil wars than otherwise? Is it even plausible that they could have had this intent – what could possibly motivate it? Isn’t the asymmetry better explained either by saying that the Fourth Convention applies to irregulars (which you don’t want) or that the Common Article 3 protections were already understood by Geneva’s drafters to apply in international conflicts as a matter of customary law? If the latter explanation is true, though (and I must say, off the top of my head, it seems pretty plausible), then the Taliban and al Qaeda necessarily have at least the Common Article 3 protections, whether or not that Article itself technically applies to them. And if that is right, didn’t the Supreme Court get it basically right in Hamdan, whether or not it was correct on the “not of an international character” characterization of the al Qaeda conflict? Of course, it may matter for U.S. domestic law whether the protections come from the treaty itself or from customary law, but it should not matter to the United States for international purposes. So I guess I’m puzzled as to how the U.S. can maintain that the Taliban lack the protections of the Fourth Convention without acknowledging a customary law amounting to the substance of Common Article 3 for all fighters (including al Qaeda) in international conflicts.

In sum, for both sides: isn’t it plausible that Geneva’s drafters envisioned a middle ground between your claims – all fighters would get the substance of Common Article 3 protections, in international conflicts from pre-Geneva customary law and in non-international conflicts because Common Article 3 extended it to them; and fighters who complied with the requirements of Article 4 of the Third Convention would get that Convention’s additional protections?

http://opiniojuris.org/2007/01/17/some-questions-about-unlawful-combatants/

8 Responses

  1. Mike: That’s exactly the question John Bellinger’s predecessor, Will Taft, asked John Yoo: Why are we bothering to take the extreme steps of denying Common Article 3′s application, and, more ominously still, claiming to “suspend” application of Geneva to Afghanistan (as OLC had proposed), if, as the U.S. has long acknowledged, the combatants in question are entitled to the substantive protections of CA3 anyway (or Article 75 of Protocol I, which is more or less the same thing), as a matter of the customary laws of war?

    John Yoo’s answer, on page 4 here, was fascinating. It’s got three moving parts:

    First, that there was no U.S. “legal authority” establishing that the CA3 norms were CIL, at least as to terrorist organizations. I think Taft showed that this was simply wrong — that the U.S. had acknowledged Article 75 as reflecting CIL across the board.

    Second, that unlike treaties, CIL doesn’t bind the President — and John Y. had advised the President that he did not need to abide by the laws of war — whereas he did have to abide by treaties (unless he “suspended”) them. In other words, as you note, this Administration was disdainful of law-of-war norms — it felt free to violate them, whereas treaties were anothe kettle of fish entirely (being the “supreme Law of the Land” and all).

    Third, and most provocatively, that even if CA3 reflects CIL, it is, after all called customary international law for a reason — and therefore if the U.S. (the biggest kid on the block) doesn’t abide by it, the custom changes! In John’s words: “It may be the case that the President wishes to develop new rules of customary international law that address the new circumstances created by the rise of powerful international terrorist organizations.”

    That last one is a classic.

  2. Plausibility is irrelevant. We can look back to that time and read the Pictet commentaries and the ICRC’s analysis. This is not about law professors recasting models of history in law review articles. I am not aware of such an approach being in the minds of the drafters from my reading of the commentaries of Pictet or the ICRC. I am far more aware of an approach being to create a coherent complete four convention structure to be applied liberally. I am also quite comfortable with having Al Qaeda types in that structure in Geneva III or IV. It is the efforts to exclude them that I am finding of little merit. It seems there is an unwillingness to recognize that what has been attempted through a hodge podge of legal artful dodging was to create a space for – torture in interrogation and then string them up – looks like lynching in the South to me. The civilized attempted through Geneva to prevent that in armed conflict. And now all states have signed on to Geneva so that it is truly universal.

    Best,

    Ben

  3. The Commentary is certainly instructive. However, the Commentary reflects a general impression of State positions. The Final Record of the drafting sessions is an equally, and perhaps in some cases more significant source of interpretive authority. With regard to unlawful belligerents, the Final Record indicates that the State parties to the revision of the Third Convention and the development of the Fourth Convention did not consider the Fourth Convention to be a “safety net” for any combatant who failed to qualify for status under the Third Convention. For example, General E. Kenneth Page, a British delegate, emphasized that “[t]he whole conception of the Civilian Convention was the protection of civilian victims of war and not the protection of illegitimate bearers of arms, who could not expect full protection under rules of war to which they did not conform.” While there is evidence that the States assumed unlawful belligerents would be afforded humane treatment pursuant to customary international law, the discussion of this category of combatant in relation to both the Third and Fourth Convention strongly suggests that the Third/Fourth Convention were not viewed as an “either/or” paradigm.

  4. “Unless they are covered by the Fourth Geneva Convention, fighters in this category aren’t protected by the text of the Geneva framework.”

    The language of GC4 art. 4 is plain:

    “Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. * * *

    “Persons protected by [GC1], or by [GC2], or by [GC3], shall not be considered as protected persons within the meaning of the present Convention.”

    The penalty for unlawful belligerency is equally clear:

    “Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts.”

    Hague IV (1907) Annex, art. 12.

  5. In response to Mr. Gittings argument, I believe Hamdan established the conflict was an Article 3 conflict, i.e. an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. As such, only the minimum Article 3 protections enter into the discussion.

    As the Article 3 protections only are granted to the wounded, sick, and non-combatants, the prisoners have no further consideration under GC 4. For Article 4 to apply, it would have to be an Article 2 conflict.

  6. Well your original post stated:

    “Let’s assume there is a category of people who take active part in combat but are not covered by the Third Geneva Convention (because they fail the test of its Article 4)…”

    My point is simple: if someone’s failure to satisfy the criteria of GC3 art. 4 is relevant, then such persons are protected by GC4 art. 4.

    *

    As for Hamdan, that’s incorrect IMO –

    What the Court said was that there was no need to resolve those questions (intl. v. non-intl.; separate conflicts with Al Qaeda and Taleban) because the bare minimum that would apply is CA3 and that is sufficient to decide the question presented (lawfulness of military commissions).

    The government, running true to form, has subsequently tried to enshrine the minimum as the maximum. What the Court thinks about that and the MCA remains to be seen.

  7. Ah, sorry, Mr. Gittings is indeed correct. While the Hamdan decision does seem to imply that it would be an Article 3 conflict, they don’t decisively answer the question.

    So I suppose we’re still waiting for a case to address that issue, assuming the court can even get jurisdiction on such a case.

  8. The cases are Al Odah & Boumedienne, which have been pending in the D.C. Cir. for well over a year, having been rebriefed twice plus a supplement or two.

    A few weeks ago they issued an order (2-1 split) denying the motion of a number of former judges of the court for leave to file an amicus brief. Available *HERE*.

    Meanwhile, there are now some new cases proceeding before the D.C. Cir. originating under the MCA, but I haven’t been able to follow up on those.

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