Footnote Filching and other Unsavory Practices in the US Supreme Court, Part II
In this post I will briefly explain the three (or four) different arguments presented in the Jinks, Goodman and Slaughter amicus brief, and how the Court’s judgment reflects these arguments. These are:
(1) Hamdan was captured in the course of the international armed conflict between the United States and Afghanistan. He is arguably entitled to POW status, and the CSRT procedure does not conform to the requirement imposed by Article 5 of the Third Geneva Convention (GC III) in cases of doubt. The military commissions therefore violate the GC III (Amicus Brief at 3-17).
(2) Hamdan was captured in the course of a ‘trans-territorial non-international armed conflict’ between the United States and al Qaeda, to which CA3 applies as a matter of treaty law. The military commissions are contrary to CA3. (Amicus Brief at 18-23).
(3) Whether Hamdan was captured in the course of an international or a non-international armed conflict is immaterial, because CA3 as a matter of treaty law applies both to non-international and to international armed conflicts (Amicus Brief at 23-25).
(4) The brief also makes a fourth argument, though it something of an orphan and is tucked away into a footnote: CA3 applies to all armed conflicts, both international and non-international, as a matter of customary law. (Amicus Brief at 25, fn. 17).
The brief is naturally a very ably written piece of advocacy. Its arguments were designed to WIN the case (i.e. to garner five votes in the Court), not necessarily to present the BEST possible interpretation of international law. Each of the three principal arguments presented in the brief seems to have been designed to overcome a particular difficulty, but each of them also faced severe obstacles.
Argument (1) is rather classical and well-founded in law. It is, however, a direct challenge to the CSRTs – which some of the Justices probably would not have entertained if they had an acceptable alternative – and it poses some very intricate problems regarding the relationship between Afghanistan and al Qaeda and regarding cases of doubt as to POW status.
Argument (2) gave the Court an option to, in essence, declare the ‘war on terror’ to be a non-international armed conflict. The problem with this argument is that it attempts to step away (rightly or wrongly) from the orthodox position that non-international armed conflicts are synonymous with internal armed conflicts.
Argument (3) offered the Court the possibility to avoid ruling on the nature of the ‘war on terror’, or the conflict during which Hamdan was captured, by saying that CA3 as such, as a matter of treaty law, applies to any type of conflict. The difficulty with this argument is that according to the text of CA3 it clearly only applies in conflicts which are not international in character, and that the brief had to engage in some interpretative gymnastics in order to make CA3 as such applicable in international conflicts as well.
Argument (3) was probably made because of the perceived defects of argument (4), which was that CA3 applies to all armed conflicts as a matter of customary law. Though this argument was relegated to a footnote, it is actually the only argument out of these four which would make perfect sense to any humanitarian lawyer, and which is supported by ample authority. The only reason I can think of why this was not the primary argument of the brief is the uncertain and controversial status of customary international law (on ideological lines) within the US domestic legal system. That is why the authors of the brief understandably took some liberties with the rules of treaty interpretation in order to be able to make argument (3).
Now, even though the arguments made in the brief are indeed alternative and mutually exclusive, in substance if not in form, all of them are reflected in the Court’s judgment except the last and, from the standpoint of international law, the best one. How could this be? Well, the most likely explanation is that the Justices liked what they saw in the brief, yet they lacked the necessary expertise in IHL to, as it were, separate the wheat from the chaff. This makes the reasoning of the judgment completely contradictory, as I’ll now show.
Argument (3) is reflected in the way in which the Court begins to deal with the issue of what kind of an armed conflict was the one during which Hamdan was captured. As explained in my previous post, on page 66 of its Opinion, the Court says that it ‘need not decide the merits’ of the argument put forward by the Bush administration that the ‘war on terror’ is legally an international armed conflict between the US and al Qaeda, because at least one provision of the Geneva Conventions, CA3, applies. Now, that certainly looks like argument (3), doesn’t it? This is indeed how Dapo Akande and John Cerone read the judgment.
But the Court doesn’t stop there, because on page 67 of its opinion it says that
The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “‘international in scope,’” does not qualify as a “‘conflict not of an international character.’” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations.
This statement makes sense only if the Court, instead of avoiding to categorize the US/al Qaeda conflict, is in fact making a determination that the conflict between the US and al Qaeda is not of an international character, as these conflicts can exist only between two states. Indeed, page 68 of the Opinion gives various authorities for the proposition that non-international armed conflicts are not just internal armed conflicts (none of these authorities actually support that position, as we shall later see). This seems like the Court accepted argument (2) from the Brief. But then, amazingly, in a single footnote the Court analyzes argument (1) from the Brief, holding that ‘the question whether [Hamdan’s] potential status as a prisoner of war independently renders illegal his trial by military commission may be reserved’ (Hamdan at 66, fn. 61, emphasis added).
What the Court apparently fails to realize is that prisoner of war status does not even exist in non-international armed conflicts. It just doesn’t, and if the ‘war on terror’ is a non-international armed conflict, nobody in it is even potentially entitled to be a POW. The whole point of POW status is the privilege of belligerency, the right of a soldier not be tried for common offences under domestic law, such as murder, but for IHL violations only. Killing a combatant of the opposite party is not, therefore, a crime for which a lawful combatant, entitled to POW status, could be prosecuted for. Unlawful combatants or belligerents, on the other hand, lose this privilege. They can be prosecuted under municipal law for killing a soldier of the other side, even if the killing itself was not a war crime. In non-international armed conflicts the privilege does not exist at all. Any rebel can be criminally punished under domestic law for the mere fact of being a rebel, even if he is not a war criminal. In essence, any combatant in a non-international armed conflict is the functional equivalent of an unlawful combatant.
Therefore, when it comes to the issue of qualifying the nature of the armed conflict during which Hamdan was captured, the Opinion of the Court makes little sense. It is not clear whether the Court was applying CA3 as treaty law or as customary law, and whether CA3 was being applied to an international, a non-international or an undefined armed conflict. There are at least three possible readings of the judgment, depending on which of the three mutually exclusive arguments made in the Amicus Brief we consider that the Court has adopted.
The one which seems to be textually most plausible, as the Court devotes most energy and reasoning to it, is that it has accepted argument (2), that the conflict between the United States and al Qaeda is non-international in character. This is indeed the reading that has been accepted by John Bellinger, who stated that ‘the Administration reads the Hamdan decision to accept that the U.S. is in an armed conflict – and therefore that the laws of war are appropriate to apply – but that the armed conflict is not of an international character.’ This reading has also been accepted by most commentators (see, e.g, here and here).
In my next post I will examine the authorities that the Court cited in support of argument (2), all of which it quite clearly misinterpreted.