Footnote Filching and other Unsavory Practices in the US Supreme Court, Part III
Many thanks to all of yesterday’s commenters. I guess that we are in agreement on the fact that the Court did apply Common Article 3 as treaty law, not as customary law or the ‘common law of war.’ Marty makes it quite clear why the Court did so – by interpreting CA3 as a treaty obligation, the Hamdan decision, formally limited only to fair trial rights, had ripple effects when it comes to the issue of humane treatment of detainees. This is certainly admirable as a matter of result.
None of this, however, addresses the fundamental contradiction that I pointed out yesterday. Was the Court applying CA3 to the purported conflict with al Qaeda while avoiding to rule on the character of this conflict, as is indicated by the Court saying that it ‘need not decide’ the merits of the Government’s argument that the ‘war on terror’ is an international armed conflict, as ‘at least’ CA3 applies. Or, did the Court indeed rule that the conflict with al Qaeda is a non-international armed conflict and that is why CA3 applies, as is indicated by its later dismissal of the Government’s and the Circuit Court’s arguments as erroneous? It could have ruled only one way or the other, as these two propositions are mutually exclusive (and both of them are equally dubious). I think most of us would say that the latter reading is the more plausible one, but we could surely agree that the judgment is not a model of clarity.
The Court’s reasoning is reduced to a single paragraph on page 68 of its Opinion, which follows the incorrect citation and quotation from the ICRC Commentary on the Additional Protocols that it filched from the Amicus Brief:
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36. In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. See GCIII Commentary 42–43.
The principal authority that the Court cites here is the Pictet Commentary to GC III, and to CA3 in particular. I’ll now show how each of the quotations of the Commentary that the Court gives is misinterpreted, while the last one is even miscited.
(1) The Commentary does indeed say that the scope of application of CA3 should be as wide as possible, but it is clearly referring to the many situations in which states have refused to acknowledge that the internal strife they are experiencing has reached the level of non-international armed conflict and engaged the protections of CA3. For example, France did so in respect of the Algerian conflict, the United Kingdom did so in respect of the conflict in Northern Ireland, and Russia continues to do so in respect of the conflict in Chechnya. States have always feared that applying IHL to rebels might somehow legitimize them, and this was the fear that Pictet was trying to assuage on behalf of the ICRC (see, for instance, his discussion at p. 43 of the Commentary).
This wide scope of application of CA3 has absolutely nothing to do with whether the conflict is by its territorial scope internal or not, or with whether CA3 as such applies to international conflicts as well. I should also note that there is no room here for any reasonable difference in interpretation. If you take a look at the beginning of p. 36 of the Commentary you will see that it discusses four different groups of criteria that states considered relevant for the application of CA3, all of which plainly refer to the internal status of a conflict which takes place between a government and a rebel group. It is referring to these conditions that the Commentary says:
Does this mean that Article 3 is not applicable in cases where armed strife breaks out in a country, but does not fulfill any of the above conditions? We do not subscribe to this view. We think, on the contrary, that the scope of application of the Article must be as wide as possible. There can be no drawbacks in this, since the Article in its reduced form, contrary to what might be thought, does not in any way limit the right of a State to put down rebellion, nor does it increase in the slightest the authority of the rebel party.
There is therefore absolutely no way in which the Commentary can be interpreted to support the concept of a state fighting a non-state actor all over the world being treated as a non-international armed conflict (unless one views al Qaeda to be in global ‘rebellion’ against the United States!).
Indeed, on the page following the one cited by the Court cites (p. 37), the Commentary explicitly says that: ‘[s]peaking generally, it must be recognized that the conflicts referred to in [Common] Article 3 are armed conflicts, with ‘ armed forces ‘ on either side engaged in ‘ hostilities ‘ — conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country.’ (emphasis added)
(more after the break)
‘Civil war’ is not strictly a synonym under IHL for ‘internal armed conflict.’ References to ‘civil war’ were omitted from the text of CA3 not because the drafters had any misgivings about the internal nature of these conflicts, but because the term ‘civil war’ denotes an internal conflict of particularly grave intensity, such as the American Civil War or the Spanish Civil War, while CA3 to apply to all situations of internal armed conflict which surpass the level of mere disturbances. ‘Civil war’ would today denote the much stricter conditions of application of Additional Protocol II, with parties in the conflict controlling distinct portions of territory, and carrying out sustained and concerted military operations. The ongoing civil strife in Iraq, for example, certainly qualifies as a CA3 internal armed conflict, but it is doubtful whether it would qualify as an AP2 armed conflict (disregarding for now the fact that Iraq is not a party to this treaty).
The Court’s reliance on the undisputable fact that references to ‘civil war’ were omitted from CA3 is therefore entirely misplaced. Yet, it gets worse, because the citation that the Court provides to pp. 42-43 of the Commentary is (again) incorrect! The text the Court quotes is located on p. 31 of the Commentary, while pp. 42-43 deal with the totally unrelated issues of the right of humanitarian initiative, special agreements, and lack of effect of CA3 on the legal status of the parties to the conflict.
(3) The Court then turns, in footnote 63 of its Opinion, to cite several authorities, all of which are perfectly irrelevant either for the proposition that non-international armed conflicts are something more than internal armed conflicts, or for the proposition that CA3 as treaty law applies in all armed conflicts. For example, the Court cites a US Army Handbook, which in turn cites the ICJ’s Judgment in the Nicaragua case as holding that CA3 serves as a ‘minimum yardstick’ of protection in all conflicts, not just internal ones. That is undoubtedly true, but the ICJ in Nicaragua was not applying CA3 as treaty law. What the ICJ really established was that the minimal substantive rules enshrined in this provision reflect customary law applicable in all kinds of armed conflicts. The ICJ needed this recourse to customary law precisely because it was in that case arguably barred from applying the Geneva Conventions themselves due to the multilateral treaties reservation which the United States had made upon accepting the ICJ’s compulsory jurisdiction under the optional clause in Article 36(2) of the ICJ Statute (see Nicaragua, para. 42, paras. 217-219)
I should make it clear again that my problem with Hamdan is not with the substantive positions that the Court took (leaving aside the difficulties in actually discerning these positions). I am actually quite sympathetic to the view that the geographical limitation built into CA3 poses problems for regulating a large number of internal conflicts which spill over national borders, and which indeed should be regulated.
This goes foremost for situations in which one state crosses over to another state to fight a non-state actor operating in its territory, and does so without the approval of the latter state, but also without engaging the latter state’s forces directly. Think of the Hezbollah-Israeli conflict in Lebanon last summer – exactly what kind of an armed conflict was it, international or internal? (Just as an aside, at a recent lecture at the Asser Institute here in The Hague, Jelena Pejic, the ICRC legal adviser on IHL and terrorism (and a truly wonderful lawyer) stated that the ICRC’s own, internal qualification of the Hezbollah-Israeli conflict remains classified, and cannot be publicly disclosed. She also stated that as a purely pragmatical matter the ICRC ditched the geographical limitation built into CA3, without giving any particular legal justification).
What I don’t like about Hamdan is the fact that its reasoning is a total pretense. One simply cannot rely on the very traditional Pictet Commentaries to solve new questions in international law, which arose because of the ever increasing influence of non-state actors in international affairs. An occurrence like the ‘global war on terror’ was not even conceivably foreseen by the drafters of Geneva, and it just doesn’t fit into the binary paradigm of international and internal armed conflict which they established. Indeed, until the Bush administration, states have consistently refused to apply IHL to terrorists groups in particular, as equality, the guiding principle of IHL, would have provided these groups with an unacceptable measure of legitimacy. For example, when the United Kingdom ratified Additional Protocol I it made the following reservation: ‘the term “armed conflict” of itself and in its context denotes a situation of a kind which is not constituted by the commission of ordinary crimes including acts of terrorism whether concerted or in isolation.’
The only legitimate form of reasoning that could have supported the Court’s ultimate conclusion was for it to say that state practice and opinio juris evolved, and that old rules have been extended to cover new situations. This claim could then have been evaluated on its merits and on the evidence provided. International law has never been a static thing, and IHL in particular was never overly resistant to change. It is, however, disingenuous to argue that somehow the law of war from the very beginning supported the result that the Hamdan Court reached today.
In my next post I’ll provide some concluding observations on the Hamdan decision.