Footnote Filching and other Unsavory Practices in the US Supreme Court, Part II

by Marko Milanovic

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.

http://opiniojuris.org/2007/05/01/footnote-filching-and-other-unsavory-practices-in-the-us-supreme-court-part-ii/

24 Responses

  1. Marko:

    1. I’m not sure I see the inconsistency. According to the Administration itself, we are engaged in at least two different armed conflicts — with Afghanistan, and against Al Qaeda. The first is an international armed conflict; the latter is not. Is there any reason to think that Hamdan could not have been a combatant in both of these conflicts? — the Afghan conflict, because he was captured in the midst of that, in Afghanistan itself; and the conflict with Al Qaeda, because he is alleged to be an agent of AQ.

    The Court holds that at least the latter is the case, and that CA3 applies as a minimum to the geographically indistinct conflict with AQ. Therefore it does not need to reach the more difficult question of whether GC III as a whole applies in Hamdan’s case by virtue of the fact that he happened to be captured in Afghanistan, in some connection to our international conflict there. Is it possible under international law that one belligerent could have been involved and detained in two conflicts simultaneously? I’m not an expert, but I don’t see why not, as this case demonstrates. In any event, that’s the question the Court avoids — and for good reason, in my view, because the CA3 holding was sufficient to the day.

    The Court does not hold or suggest that “prisoner of war status . . . exist[s] in non-international armed conflicts.” But such status (and how it is to be determined) is an issue in international armed conflicts, and perhaps Hamdan was involved in one of those, too.

    2. Why didn’t the Court rely upon customary, rather than treaty, law? Well, in some sense, it did. The particular holding — a correct one, in my view — is that Congress has required the Executive branch to comply with the common law of war. See page 29 of the slip. op.; see also Kennedy concurrence at 6. Then comes the somewhat odd move — the Court’s assumption that the Geneva Conventions themselves are included in the common law of war. Page 49. So, for instance, the Court first rejects the (Eisentrager) argument that Geneva is not judicially enforceable. So what? says the Court: “For regardless of the nature of the rights conferred [by Geneva] on Hamdan, cf. United States v. Rauscher, 119 U. S. 407 (1886), [the Conventions] are, as the Government does not dispute, part of the law of war. See Hamdi, 542 U. S., at 520–521 (plurality opinion). And compliance with the law of war is the condition upon which the authority set forth in Article 21 is granted.” As the cite to Hamdi demonstrates, this is not the first time the Court has assumed that Geneva (and the Hague Conventions) either constitute, or reflect, the customary laws of war. In Hamdi, the Court cited various provisions of the treaties to support the assertion that “It is a clearly established principle of the law of war that detention may last no longer than active hostilities.”

    The Court thus treats Geneva as if it were now part of tbe customary “law of war,” compliance with which Congress has required. Whether the Court’s understanding of the relationship between Geneva and the common law is right or wrong, it doesn’t much matter, because I think it is fair to conclude that Congress intended to insist that the President comply with both the common law of war and our related treaty obligations. No statute, in other words, authorized deviation from (i.e., breach of) our treaty obligations.

    OK, but I take it your point, Marko, is that the Court could have avoided the difficult question of whether CA3 applies as a matter of treaty obligation by holding, more modestly, that the substantive requirements of CA3 are themselves part of the customary law of war, applicable to all wars, international and non-international alike, compliance with which Congress has commanded.

    Yes, it could have done so. So why didn’t the Court take this easier route? The answer might be that it would have been difficult to find the requirement of “regularly constituted courts” in the common law apart from Geneva. (I don’t know anything about this.) But I think the real answer has nothing to do with Hamdan, or with military commissions, at all.

    The reason the Court, and Justice Kennedy, took such pains to insist that CA3 applied as a matter of treaty obligation, was so that its holding would bring an end to Administration’s practice of the sort of “cruel treatment and torture” that CA3 prohibits.

    To be sure, such cruelty and torture is also proscribed by the customary law of war, going back to Lieber and beyond. But it had become common knowledge that the Administration’s view is that the President may ignore “merely” customary law — including the law of war — when acting as Commander-in-Chief (based on the misreading of the “controlling Executive act” language of The Paquette Habana).

    Treaties are another story. If Common Article 3 prohibits the CIA’s interrogation techniques, then those techniques simply must stop (unless the President were to claim an Article II power to breach treaties, which would not be enough to assauge the CIA). Indeed, as Kennedy stressed, violations of CA3 were also criminal violations of the War Crimes Act (until the MCA).

    This is why the Court’s holding that CA3 applies as a matter of treaty law was far more important than everything else it did in Hamdan. That was my reaction within minutes of the decision; and it remains my view today.

  2. Yeah, I’m following Marty’s argument much better. It seems the court did not concur with the Government’s claims and therefore said the system used to determine Hamdan’s status was illegal, therefore we have the CSRT’s now. Forgive me if I’m reading incorrectly, but I read the original post as saying the CRST’s were in place during Hamdan. And, as far as his status goes, I don’t see how POW was ever the issue because al Qa’ida operatives do not wear a uniform etc etc. Now, isn’t there congressional mandates regarding the conflict in Afghanistan? Technically, the US was at war there, so the conventional rules of conflict apply, no? If Hamdan had been captured in, say, Yemen, the question regarding the classification of the ‘war on terror’ would be applicable, but Hamdan was captured in Afghanistan, which not only falls under congressional authorization, but also NATO Article 5 – hence customary international law. I’m just not following your argument very well, Marko. Questioning the character of the ‘war on terror’ is certainly a valid argument, but I think the questions being asked here would be different if they occurred outside of the theater of congressionally authorized conflict, as is the case in Afghanistan.

  3. I too support Marty’s construction of things. I’ll concede that the reasoning might be a bit clumsy (and, as I said yesterday, I don’t really care that much about this; I’m more concerned with the outcome), but it appeared fairly clear to me on reading the case that the Court is distinguishing between different armed conflicts within the ‘War on Terrorism’. I’d also have preferred a ‘CA 3 applies as a matter of CIL’ approach, but the ontological difficulties of CIL in American scholarship at the moment probably made such a move very unatractive to the Justices (although their A75, OP 1 argument was interesting to me)

    Marty – as to the ‘cruel and unusual treatment’ point I agree, although I do wish people would start to seriously argue human rights law and especially jus cogens rights that apply as a matter of CIL and therefore common law in the US before the Supreme Court. The concentration on IHL without talking about its interaction with IHRL within the international legal corpus (replying on the ICJ findings) is really baffling to me….even when one takes into account the unincorporated status of many IHRL treaties in the US.

  4. Fiona,

    I’m really on the outside looking in here, owing to my lack of expertise, but I do understand something about your desire that ‘people would start to seriously argue human rights law and especially jus cogens rights…apply as a matter of CIL and therefore common law in the US before the Supreme Court.’ Do you think this is a perspective many if not most non-Americans in IL would subscribe to? Anyway, thanks for raising this point.

  5. Thanks, fdelondras. But I suspect it is not the “ontological difficulties of CIL in American scholarship at the moment” that gave the Justices pause. They could care less about difficulties in the academcy! I think it was, instead, a combination of at least three other things:

    i. That there was some uncertainty about whether customary law, as opposed to CA3, would have invalidated these commissions — i.e., whether customary law requires “regularly constituted courts” as that phrase is understood under CA3.

    ii. That either for that reason, or because he’s unsure of the legal status of customary laws of war, Kennedy was not willing to sign on to that (Article 75) part of the Stevens opinion.

    and, most importantly,

    iii. That if the holding were based on a binding treaty obligation rather than on incorporated customary law, not only does that avoid the Administration’s argument that CIL is a mere trifle to the CINC, but, more significantly, it triggered criminal sanctions under the War Crimes Act, which put an immediate stop to the CIA’s program of “enhanced” interrogation techniques. (Kennedy conspicuously writes in his concurrence that CA3 “is part of a treaty the United States has ratified and thus accepted as binding law. By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. See 18 U.S.C. § 2441.”) One shouldn’t underestimate the significance of this passage –and the Administration got the message loud and clear, which is what prompted the panic that became the MCA.)

  6. Hi Marty, Thanks for your comments. I think they probably clear up some of the confusion in the Court’s analysis.

    But I’m not sure I entirely follow your distinction between “binding as a matter of treaty law” and “binding as a matter of the common law of war.” As you rightly point out, the Court’s method of incorporation relies on the UCMJ’s reference to the “law of war.” The Court reads this phrase to incorporate the Geneva Conventions, and Common Article III. Whether or not the United States is a party to that treaty and whether or not that treaty is “binding” doesn’t really matter as a matter of US law then. The game then shifts to interpeting what Geneva requires as part of the “law of war.”

    The court then reads Common Article III to apply to Hamdan’s commission and the conflict with Al-qaeda. This interpretation of the treaty is not necessarily binding on the U.S. government in the context of the war crimes act because it is arguably only part of the narrow context interpreting what Congress intended under the UCMJ, and not more broadly. But it created enough uncertainty under the war crimes act to cause the “panic” or revision in policy that the Pentagon eventually adopted (which was probably the wisest course for the Administration to follow given Kennedy’s concurrence, since the concurrence actually goes farther than the majority in its theory of why the Geneva Conventions are binding.

  7. …but the UCMJ has been modified since Hamdan.

    What do other countries do? Is the US the only country with al Qa’ida operatives in custody?

  8. Patrick – from my knowledge based on reading primarily non-US law journals, speaking at and attending conferences, and being veryu up to date on PhD and LL.M work being done on the War on Terrorism in Europe at least we are quite baffled at the lack of HR law arguments in these cases. But we do appreciate that we come from a very different legal background to that in America…

    Daniel – I don’t think there’s a uniform approach in other countries to these questions, but most use criminal justice models with perhaps longer detention periods than ordinary criminal justice but complete with judicial review on a periodic basis. In addition, very many also have domestic human rights provisions to take into account in their formulation of law and policy and so these have a huge impact on how the laws are made and implemented (the rights provisions having process implications in carrying out the legislative powers as well as in limiting the extent of legislative powers themselves). I think UK is a really excellent example of how other states are dealing with suspected terrorists (and have, of course, done so for hundreds of years…..as Conor Gearty has often said (and I’m paraphrasing) bullets and semtex etc…. were ‘new’ once too but the terrorism laws still worked by and large)

  9. First of all, many thanks to you all for your comments.

    As to the customary law issue, Marty points out well some of the difficulties surrounding the application of CIL within the US legal system. As I said in my original post, this is precisely why the authors of the amicus brief made the textually problematic argument that CA3 applies as treaty law to any armed conflict. Justice Kennedy’s apparent allergy to CIL meant that he was unprepared to find that Art. 75 of Protocol I was customary law, unlike four of the other Justices, so it is fair to assume that he would feel the same way about CA3. I can see the difficulties that this presented both for the authors of the brief and for the other Justices.

    But, as a matter of principle, I fail to see how relying on CA3 as customary law would have been legally, instead of politically problematic. Marty points out well that the Court held that the UCMJ incorporated by reference the common law of war, meaning that a customary rule would have the same binding force within the US domestic legal system as the statute which incorporated it.

    I also cannot accept the argument that relying on CA3 as custom would have changed anything in the interpetation of the substantive requirements CA3 imposes. Among other authorities, the ICJ has held in Nicaragua (paras. 218-219) that CA3 is as binding as a matter of customary law as it is under treaty law. (The ICJ also held btw that CA3 applies only in non-international armed conflicts as treaty law, but in all armed conflicts as customary law). ‘Regularly constituted courts’ means the exact same thing under customary international law as it does under treaty law. Why shouldn’t it?

  10. Not sure I understand, Julian. The Court did this:

    1. Determined — correctly — that Congress intended and required that the Executive must comply with the laws of war.

    2. Assumed that these laws of war included the Geneva Conventions — or that, in any event, Congress also intended for the Executive to comply with our substantive Geneva obligations, regardless of whether Geneva creates an independent cause of action. (Also correct, in my view.)

    3. Therefore, interpreted what the Geneva Conventions require.

    4. In such interpretation, the Court thought it necessary (or desireable) to determine whether, as a matter of treaty intepretation, Geneva applies to the conflict with Al Qaeda. (The Court wasn’t purporting to determine whether the substantive restrictions of CA3 apply to the AQ conflict as a matter of customary law — it was forthrightly and unequivocally construing what the treaties require of their own force, as Kennedy explains.)

    5. Determined that a proper interpretation of Geneva requires compliance with CA3 in the conflict with AQ.

    6. This had the (not unintended) effect of holding that — a. the CIA’s techniques violated our treaty obligations; and

    b. were war crimes, under the WCA.

    You write: “Whether or not the United States is a party to that treaty and whether or not that treaty is ‘binding’ doesn’t really matter as a matter of US law then. . . . [The Court's] interpretation of [CA3] is not necessarily binding on the U.S. government in the context of the war crimes act because it is arguably only part of the narrow context interpreting what Congress intended under the UCMJ, and not more broadly.”

    I think this is wrong. The Court’s analysis proceded on the assumption that if CA3 was not apposite to the conflict with AQ, then it was not part of the law of war and thus did not bind the Executive, by virtue of statutory incorporation or otherwise. In deciding whether CA3 applies to this conflict, the Court did not purport to be construing the intent of the 1950 Congress that enacted the UCMJ on that particular question — it quite plainly was construing the Geneva Conventions themselves, as your own writings decry. There is simply no theory — certainly not in the Court’s opinion; but none I can even imagine — under which CA3 covers the conflict with AQ for purposes of the UCMJ but not for purposes of Geneva itself and the WCA. That would simply make no sense. (It is not as if, for example, the Court held that “whatever the proper reading of Geneva might be, the 1950 Congress assumed that it covered this sort of conflict, and so for these purposes that assumption is bidning here . . . . The Court’s analysis was nothing of this sort.)

  11. Marko writes:

    “As a matter of principle, I fail to see how relying on CA3 as customary law would have been legally, instead of politically problematic. Marty points out well that the Court held that the UCMJ incorporated by reference the common law of war, meaning that a customary rule would have the same binding force within the US domestic legal system as the statute which incorporated it.”

    For purposes of the military commissions, yes, that’s right (at least assuming you’re correct that customary law establshes the requirement of “regularly constituted courts”).

    But as I explained, the Court also wanted to force the Administration to comply with CA3 — its prohibition on cruel treatment, in particular — outside the context of military tribunals, and for that purpose, reliance on section 21 of the UCMJ would be unavailing. It knew that if the holding were “merely” that CA3 reflects customary law, the Bush Administration and the CIA would (rightly or wrongly) not feel bound to apply it outside the context of tribunals. But saying that it applied as a matter of treaty obligation meant (i) that OLC could not invoke its Paquette Habana argument about how CIL doesn’t bind the CINC; and, more importantly, (ii) that the War Crimes Act kicked in, thereby bringing a halt to the CIA’s program.

  12. Daniel,

    Other countries don’t consider IHL to be applicable at all to al Qaeda. Neither Spain nor the UK, for example, have claimed to be engaged in an armed conflict with al Qaeda after the terrorist attacks in Madrid and London. The UK did enact specific emergency legislation, allowing for so-called ‘control orders’ for suspected terrorists etc. Human rights law certainly allows for this, within certain boundaries.

    Fiona,

    There is indeed a rather pathetic-looking reliance on human rights law in Hamdan. The plurality of the Court, at p. 70, note 66, relies on the provisions of the ICCPR to define what the minimal judicial guarantees required by CA3 actually are.

  13. “prisoner of war status does not even exist in non-international armed conflicts” This asserts an abolute doctrine that doesn’t exist. Immediately after the GC was created, the UN went to war in Korea. After the first year, almost all the enemy soldiers were “Chinese Volunteers”, members of the PLA in uniform who nominally were civilian volunteers fighting with the North. This was a non-state military force, but the UN accorded captured Chinese soldiers POW status. They did not define them as civilians subject to criminal trial by South Korea. They did not regarde them as unlawful belligerents subject to military trial for murder and attempted murder. Except for the fact that they were uniformed, they had no better status under the GC than al Qaeda. So although the GC defineds POWs and others, the “others” include a whole range of persons whose status could be POW, belligerent, criminal, or civilian bystander. In the Civil War, captives of the South were given POW status even though the US did not recognize their government as a country. Someone defined as a POW under the GC must be a POW. After that, there are many sources of input to subsequent classification, including “military tradition” which may be even more forgiving than CIL.

  14. Howard, so sorry, but you are simply wrong. POW status as such absolutely does not exist in non-international armed conflicts.

    That doesn’t mean that states cannot, as a matter of grace or policy, treat captured rebels as POWs. They can and they should – this is, for example, what the US did with the captured Vietcong in South Vietnam. CA3 indeed exhortates states to put into force other provisions of the Geneva Conventions via special agreement. But rebels are not privileged in the sense that they do not have a right to be immune from prosecution under the domestic law of the state.

    The American Civil War is actually a contrary example to what you are asserting. This is because the Civil War saw the use of a law of war doctrine called the ‘recognition of belligerency’. This doctrine entailed the application of all of the laws of war (including, for example, the law of neutrality) to an insurgency which was so great in magnitude as to almost completely resemble an international war. Both the state involved in civil strife and third states had the opportunity to appraise whether belligerency should be recongized or not – as they did in the case of the American Civil War.

    A classical exposition of the conditions for a recognition of belligerency was actually made by US President Grant in 1870, when he refused to recognize belligerent rights of Cuban rebels fighting the Spanish authorities. The main defect of the recognition of belligerency doctrine, however, is that it was entirely dependent on the discretion of states. It was not used, for instance, in the case of the Spanish Civil War, when it by all accounts should have been. This in the end led to the drafting of Common Article 3 in 1949.

    (If you need any authorities I’d be happy to provide them)

  15. Marko,

    I’m not deliberatly referencing human rights laws per se. I’m wondering what the conventional approach is with other countries. If we look at what happened with the British soldiers, we can find other circumstances regarding classificaiton of detainees. If Iran captured the soldiers outside of Iranian waters, that’s another matter than if the British were captured inside Iranian waters. Different circumstances, different rules. If we are talking about international law, let’s talk about what could possibly be ‘ripening’ elsewhere. Invoking Paquete Habana, the US must derive its laws from the common usage among civlized nations ( to paraphrase). Are there other cases in other countries were foreign nationals have been detained and tried? For example, is Spain holding and prosecuting Pakistanis allegedly involved in terrorist acts against Spanish interests? If so, what are they using?

  16. Well, Daniel, in the case of the captured British soldiers, IHL/the law of war did not apply at all. Why? Because there was no international armed conflict between the United Kingdom and Iran. The fact that the people captured were soldiers doesn’t change anything one bit. The only body of law protecting the British soldiers was human rights law, and it applied regardless of whether they were captured in Iranian or in Iraqi waters.

    If you are looking for a common approach regarding terrorism, then that would be the model of criminal prosecutions, coupled with a special regime of detention, maybe modified rules of evidence and trial procedure, which would still be under the general purvey of human rights law. That’s the rule, I would say, in every democratic country dealing with terrorism save for the US. IHL was simply never meant to regulate every kind of violence.

    Nothing, however, prevents the law of war from kicking in when there is in fact an armed conflict, i.e. when states do use military force, as in Iraq or Afghanistan. But, again, no state but the current US administration is claiming that it is involved in a ‘global war on terror’, as a matter of law.

  17. From my own writing on the UK and Iran

    Were they hostages, or prisoners of war (POW’s)? If we follow the coordinates supplied by the UK, then Iran entered Iraqi waters to seize the British sailors, which could be viewed as an act of aggression. Could not the same allegation be made if Britain had wandered into Iranian waters? If the former, then the British sailors were hostages, if the latter, then they could be viewed as de facto POW’s. In either event, the circumstances of their treatment should reflect customary law.

    Minimum standards of justice must be adhered to by civilized nations. In the Third Geneva Conventions, we find that “prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.” If the British sailors were instead hostages, the Fourth Geneva Conventions outline that as a violation, but also deals with detention and humane treatment of spies. In any event, there is a baseline of acceptable treatment which must be met.

    ———

    I’m completly lost now. Are we talking about the use of international law regarding Hamdan or human rights law regarding Hamdan? Are we equating the laws of war with human rights law? I think there is a difference. They may go hand in hand, but I think the seperation is distinct. I would argue international law deals with the affairs of states and human rights law deals with, well, people. I would argue that two distinct threads would be needed to discuss Hamdan in terms or purely human rights issue and Hamdan in terms of purely international law.

  18. Marko

    Oh yes, I know there was a slight reference to ICCPR, but it was pretty pathetic!! I’m talking serious, ‘this body of law matters and binds us’ arguments here [compare the US case law with , for example, A &X v Sec of State for the Home Department (the Belmarsh Case), A v Sec of State for the Home Department (foreign torture evidence case) and R (Al Skeini) v Sec for Defence (applicability of ECHR in Basrah)].

    And sorry for hijaking your topic!

    Daniel,

    I may be blamed for introducing the confusion with human rights law and IHL, but in fact IHL (or at least the jus in bello of it) is basically the human rights law that applies during war. The two are not really as distinct as you suggest. However, that’s really not what Marko’s posts are about and I’m starting to feel a little like a hijaker!! I completely endorse Marko’s response BTW characterising the majority of countries’ approaches as criminal justice approaches to suspected terrorists (regardless of citizenship etc….).

    Perhaps Israel might be identified as an exception, but then again the concept of war on terrorism and terrorism as war can be largely traced back to Israel so that’s perhaps not surprising….

  19. I think Marty is quite right that the effect (and likely the purpose) of the Court’s decision to apply CA3 through the UCMJ as a matter of treaty law rather than CIL had more to do with the interrogation program than with the military commissions. Having said that, I’m curious as to Marty’s guess as to why, having been so bold in Hamdan I, Justice Stevens and Justice Kennedy now seem so cautious in denying cert in Boumediene and Hamdan II. I suppose, in the abstract, there might be value in waiting to see what the D.C. Circuit does in the CSRT reviews, but given that court’s clear holding that the Constitution does not apply, I don’t see how the Supreme Court can duck the basic question of whether the Suspension and Due Process clauses protect aliens held at GTMO. So why wait? I could see the Court being somewhat chastened by the speedy passage of the MCA, but the political climate seem rather different now than it was last summer. Any thoughts?

  20. I don’t think they’re being overly cautious. I think they’re waiting to see whether the CSRT etc… will be modified now (since the Denbeaux &Debeaux study) to provide a review that would qualify as an adequate alternative to habeas corpus. I would see the Boumedienne and Al Odah denial as a warning more than anythung else, done in the knowledge that refiling can be relatively quickly done. Their separate opinion is strongly worded in terms of their warning I think… (In age old tradition I ought to note that I hinted at this in my tiny [really short] note on the denial in the latest edition of the Bulletin of International Legal Developments (BIICL))

  21. Marko,

    Do you think it is possible that the concept of ‘belligerency’ and its recognition might continue to exist as a matter of customary international law? If the conflict with al Qaeda is neither international nor non-international according to the language of GCIII, then how do we determine that it’s a war at all, other than by turning to the criteria used traditionally for recognizing a belligerency? Assuming that these criteria are met, what are captives if they’re not prisoners of war? (Albeit not ones entitled to all of the niceties of the GCs that haven’t become customary law)? Otherwise, what’s the basis of applying the law of war?

  22. Hey Marty,

    I don’t think we disagree actually. First, I don’t disagree that the Court interpreted what the Geneva Conventions require and that they went out of the way to interpret the Geneva Conventions rather than the customary law of war. And I think it is the safer view to say that once the treaty is interpreted to cover the AQ conflict in one context, it covers the AQ conflict for all purposes.

    But the theory of how the Geneva Conventions come into US law matters, for U.S. law purposes. And both the Stevens opinion and the Kennedy opinion explicitly avoided the question of whether or not the Geneva Conventions are self-executing. They both relied solely on Article 21 of the UCMJ’s incorporation of the law of war as the basis for interpreting the Geneva Conventions. Kennedy’s concurrence follows exactly the same theory – the commissions are invalid because Article 21 requires they be consistent with the law of war, which includes the Geneva Conventions. They are not invalid because the Geneva Conventions, standing alone without the UCMJ, invalidate the commissions. This is the whole legal edifice upon which the invalidation of the military commissions rests.

    The War Crimes Act separately criminalizes violations of Common Article 3. So this is the statutory hook for incorporating the Geneva Conventions here, and a much better one by the way than Article 21. The fact that the court went out and interpreted the Geneva Conventions to apply to AQ in the context of Art 21 presumably means that a majority of Court would think it would apply to AQ here as well. But there is indeed the argument that the intent of Congress in the UCMJ is a different than the intent of Congress in enacting the WCA because the language of the statutes is different in how they incorporate the Geneva Conventions. Congress could have in the UCMJ Art. 21 only sought to incorporate those parts of the law of war relevant to military commissions whereas in the WCA the goal was to incorporate all of Common Article III. But I agree there is no evidence that this narrow approach was adopted here.

    On the other hand, I do think that the Court’s reliance on the statutory incorporation of treaties rather than the treaties themselves gives Congress more authority to overrule those treaties’ domestic effect. For instance, it means the MCA’s revision of Art. 21 should be less controversial since it is just modifying a statute and not a treaty. And the same with the War Crimes Act.

  23. Julian:

    Not quite sure what you mean by “the theory of how the Geneva Conventions come into US law matters, for U.S. law purposes.”

    The Geneva Conventions “came into” U.S. law by being signed by the President and ratified by the Senate. They impose certain obligations, including that the U.S. categorically avoid “cruel treatment.” And those obligations are binding on the President by virtue of the Take Care Clause and Article VI. As Kennedy correctly states before he mentions the War Crimes Act: “The provision [CA3] is part of a treaty the United States has ratified and thus accepted as binding law.”

    The only real ambiguity remaining is remedy. We know after Hamdan that the requirements of CA3 can be enforced (before the MCA, anyway) in a habeas action to enforce the UCMJ, and/or by a WCA prosecution. Whether Geneva itself establishes or requires an independent cause of action for its enforcement is the issue on which the Court punts (although JPS for four Justices pretty clearly indicates a “yes” answer, FWIW).

    You write that the commissions “are not invalid because the Geneva Conventions, standing alone without the UCMJ, invalidate the commissions.” That’s where I disagree. The Court holds that CA3 prohibits those commissions. And CA3 is the supreme Law of the Land. Geneva “standing alone” does render them invalid (again, at least pre-MCA). Whether Geneva “standing alone” would provide a means of challenging them in court is a different (and thus far unresolved) question.

  24. Jennifer,

    I do think that there might be some use to the recognition of belligerency concept in the future, because it is an excellent way of applying the full panoply of rules available in international armed conflicts to certain very intense internal armed conflicts. However, it simply hasn’t been used in the past century, mostly because states lacked the incentives to do so. Whether that has led to desuetude or not is anyone’s guess. For an argument as to how belligerency might be relevant today, see Y. Lootsteen, ‘The Concept of Belligerency in International Law’, 166 Mil. L. Rev. 109 (2000).

    As to your second question, if a conflict is not an international armed conflict pursuant to CA2, nor is it an internal armed conflict pursuant to CA3, then it is not an armed conflict, and IHL does not apply. It’s that simple. The view of the ICRC, for example (which I share), is that the ‘war on terror’ is not an armed conflict of any sort, but that the wars in Iraq and Afghanistan certainly are. Both of them started out as international armed conflicts between the US and the respective state, and both of them have now arguably been transformed into internal armed conflicts, in which the internationally recognized government of each country is, with US support, fighting insurgents within its territory. IHL does not apply to persons captured outside Iraq and Afghanistan, only human rights law.

    That brings me to my broader point, however, generally in response to Marty’s incisive comments. My main concern is that international law is interpreted faithfully. If it is, the situation of all those involved in the ‘war on terror’ is pretty clear, and noone is outside the law. The problem is not with international law as such, but with the application of international norms within the US domestic legal system. That is where we run into barriers and veritable mazes of legal interpretation, widely diverging visions of executive power, models of deference and so on. The question then is where do our priorities lie? Do we twist international law to avoid domestic US legal pitfalls, or do we address these structural domestic problems directly?

    How can Justice Kennedy, for example, be willing to say that CA3 applies to Hamdan, but be unwilling to say that Art. 75 of Protocol I does, when all US administrations until the present one have consistently stated that Art. 75 codifies existing customary law? It’s totally absurd. How can the US Supreme Court, after two centuries of constitutional jurisprudence, still not clearly pronounce even on some of the most fundamental principles regarding the status of various forms of international law within US domestic law. Avoidance can only get you so far, and it is doubly disappointing when it comes to customary international law, which most, if not all other common law systems, such as that of the UK or Israel, consider an integral part of the law of the land. Especially when it comes to fighting terrorism, why look any further than the examples of Israel and the United Kingdom?

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