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)
(2) The Court then goes on to say that ‘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.’ This is indeed so, but the Court again misses the point.
‘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.
The Court in Hamdan says that al Qa’ida is global in character, though non-sovereign and therefore not international. However, CA3 applies because Afghanistan is party to the Geneva Conventions and possibly because the US had declared grievances (NATO Article 5, AUMF). Following through, then, on CA3, Hamdan was allowed access to a regularly constituted court and the Court ruled the system in place at the time illegal.
What would be the scenario if Hamdan had been captured in a nation that was NOT party to the Geneva Conventions?
I still don’t see your thesis, Marko. What is it that you are arguing? That Hamdan was rightly decided on the wrong issues? That CA3 should NOT apply?
Daniel,
My thesis is (1) that CA3 cannot apply as treaty law to the conflict with al Qaeda, and can at best apply as customary law; (2) that the conflict between the US and al Qaeda is not an armed conflict within the meaning of IHL, at least not globally.
But the US captured Hamdan in Afghanistan, which is party to the Geneva Conventions which therefore invokes treaty law, no?
I’ll grant you point 2. The UN recognizes terrorism as an international crime and its violators have been prosecuted by criminal courts. If the military can prosecute and detain suspected terrorists, then following that logic, the US could place drug dealers in military custody as part of the war on drugs. What if the US declared war on poverty?
The US has used the civilian system before in the 1993 WTC bombing cases. Why did it abandon that sytem now?
Marko, According to Hamdan, page 75, Common Article 3 … affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. This description is in keeping with the treaty definition, which applies to “armed conflict … occurring on the territory of one of the High Contracting Parties.” Can this be read as a limitation to the facts of the case, that is, a person captured in Afghanistan? Since Hamdan was captured on the territory of a signatory party where there was clearly an ongoing armed conflict within the meaning of IHL, at least CA3 applies. The fact that the armed conflict might spill over the border into another state, say Pakistan, should not change the application of IHL to the situation within Afghanistan. Whether a person captured in Pakistan is covered by IHL or human rights law would be determined by assessing whether there is armed conflict going on there (regardless of its territorial scope) and whether Pakistan is a “High Contracting Party.” After all, CA3 says “in the case of armed conflict occurring…” rather… Read more »
Jennifer asks the right question. Issues of sourcing aside, the basic argument that the Court makes in Hamdan is that the phrase “not of an international character” means a conflict not between nation states, so that CA3 covers any conflict between a state and a non-state entity, be it a rebel group, insurgent force, or terrorist organization. Marko hasn’t yet shown us why that reading of the text should be rejected. If you accept that reading, the fact that the conflict may spill across national borders is irrelevant, so long as part of the conflict is “occuring in the territory of one of the High Contracting Parties” (as the conflict in Afghanistan plainly was). This reading is textually plausible — CA3 doesn’t say “occuring only in the territory of one of the High Contracting Parties” — and seems to avoid the difficulties of classifying “spill-over” conflicts noted in point (3) of the post. So what’s wrong with it?
Thanks for all of this, Marco. It’s a very interesting and informative exposition on the sources that the Court cites in the full paragraph on page 68 of its opinion. I’m sure others who have more knowledge than I about these sources will have more to say on such matters. But here, I fear that it is you who has unjustifiably elided a text. The paragraph you so meticulously parse is not where the Court makes its principal argument with respect to CA3. That argument appears instead in the preceding paragraph, on pages 67-68, before the Court’s citation to the APII Commentary — and (here following up on Brian’s and Jennifer’s point) it’s based on a fairly straightforward reading of the treaty’s text: 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. So much is demonstrated by the “fundamental logic [of] the Convention’s… Read more »
Marko,
You said:
I would suggest that the fear was very real, not because terrorists could convince supporters they are legitimate soldiers, but because IHL applies to armed conflicts, which by definition requires (or should that be required?)at least two parties. Two legitimate parties, that is, both having equal rights to participate in the conflict. The important thing was never POW status, it is combatant rights (and combatant immunity). To get around these qualms, CA3 does not require a state to recognize combatant rights of rebels, but prescribes a minimal set of standards that both sides must adhere to (although it’s not clear how rebels can constitute “regular courts”). But the state’s right to detain and try rebels is a sovereign right over its territory rather than a claim to belligerent rights under IHL. Until 9/11 it appears to have been general consensus that carrying out armed conflict against terrorists would entail recognizing their right to engage in combat (against lawful military objectives in accordance with IHL).
Marko persists in finding an ambiguity in the Court’s ruling with respect to the status of the “war on terror”/conflict with al Qaeda as either an international or a non-international conflict. But that is clearly – and I think indisputably – wrong. The Court did straightforwardly rule that the conflict with al Qaeda is a non-international conflict under CA 3. It did not leave that question open. Rather, the question it left open – as Marty has made clear – is whether the conflict in Afghanistan can be divided into two separate conflicts, one with the Taliban and one with al Qaeda. That was the Administration’s contention (see the January 9 Yoo memorandum) and the basis for the ruling of the D.C. Circuit. (As Justice Stevens put it: “The [D.C. Circuit] accepted the Executive’s assertions that Hamdan was captured in connection with the United States’ war with al Qaeda and that that war is distinct from the war with the Taliban in Afghanistan.”). The government’s argument was that, because the two conflicts were distinct, it was unnecessary to reach the question whether the Geneva Conventions apply to the conflict with the Taliban under CA 2 and, if so, the nature… Read more »
I very much appreciate the insightful dialogue generated by Marko Milanovic’s posts and commentators’ subsequent remarks. If you could please excuse this tangential question, but I can’t think of a better group of minds to whom to pose it:
How, if it all, did the Hamdan ruling effect the formulation of charges being brought against Omar Ahmed Khadr? I am wondering if the charge of “murder in violation of the law of war” being brought against him as an “alien unlawful enemy combatant” for killing a soldier with a grenade could be linked with an argument of recognition (implicit or otherwise) of a specific classification of a conflict (international or non-international)?
Jennifer and Brian, You make excellent points. The text of CA3 mentions ‘armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties.’ That text could be indeed be interpreted in two possible ways. CA3 refers to conflicts between a state and a non-state actor occurring in the territory of THE state involved in the conflict, i.e. it refers to internal armed conflicts. Or, CA3 refers to conflicts between a state and a non-state actor occurring in the territory of ANY other state. This interpretative possibility was indeed noted in the amicus brief. The second possibility would allows us to classify, for example, the fighting between the US and al Qaeda in Afghanistan, or between Israel and Hezbollah in Lebanon as a non-international armed conflicts. The first would not. So, what would be the correct interpretation of CA3? Well, I’m afraid that the rules of treaty interpretation are very clear. Article 31(1) of the Vienna Convention on the Law of Treaties stipulates that ‘a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light… Read more »
Marty, so sorry, but you can’t use my own weapons against me :). The part of the Opinion to the Court that you quote is actually devoid of almost any pertinent legal analysis. The Court makes two points. First, international armed conflicts are conflicts between states only, to which CA2 is applicable. Well, duh. This is what they cite Jeremy Bentham for, and no serious scholar of IHL ever disputed that. The contention by the US government that the conflict between the US and al Qaeda was an international one was quite simply total nonsense, an invention of the Government’s lawyers, and nothing more. Secondly, (and please do bear with me) the Court says that non-international armed conflicts are all those armed conflicts which are not international. Now, that might SEEM obvious, but that is actually completely mistaken. As my professor of IHL, Dino Kritsiotis, explained well at one of his first classes, there is no generic, abstract concept of ‘armed conflict’ in international law from which you can excise all interstate conflicts and be left with the non-international ones. The latter cannot be defined residually, as the qualification of the conflict depends both on the status of the parties… Read more »
“The possibility that a state could somehow be involved in a conflict with a non-state actor in the territory of another state was simply never entertained. Indeed, until very recently such an occurrence never happened in practice.” Except of course in 1916 when the US invaded Mexico to persue Poncho Villa’s rebel band not associated with the government of Mexico after it attacked a US Army unit in Columbus, New Mexico. Congress effectively declared war on a non-state actor. Then there were the Chinese Volunteers in Korea, the Boxer Rebellion, Barbary Pirates, pirates in general, Vietnam, …
Howard Gilbert in my opinion hits the proverbial nail on the head. Much of this dialogue has emphasized the intended scope of CA3, and how that scope should be interpreted. Virtually none of the commentary seems to consider how inconsistent it is with the tradition of regulating warfare to employ armed forces to engage in operations in which they are authorized to use destructive combat power based on the designated “status” of an opponent without acknowledging the applicability of a regulatory framework. For those who argue that IHL cannot apply to the conflict with al Qaeda because that conflict does not “fit” within the law trigerring paradigms of CA2 or CA3, I have two questions. First, where do either of those provisions indicate that they are the exlcusive triggers for application of the fundamental principles of IHL? Second, how would you advise an operational commander ordered to engage an al Qaeda enemy when you were asked what humanitarian obligations applied to the conduct of his forces? As I have written elsewhere (and in an article forthcoming in the Vanderbilt Transnational Law Journal) our armed forces have long understood that such a situation is inconsistent with disciplined military operations. Should the… Read more »
Marko, I think the plain text and the object and purpose of the conventions support my reading. The territorial limitation is not at all obscure; it was meant to exclude the territories of non-states parties, who wouldn’t be bound by the treaty. It does not specify that a High Contracting Party must also be party to the relevant conflict. I find it hard to imagine that the object and purpose of CA3 was to cover hostilities up to the point that some participant steps across a border. It may be true that the drafters didn’t have in mind conflict between a state and a non-state entity entirely outside its borders, but the objective seems to have been an increase in the scope of protection to all persons caught up in hostilities that are intense enough to qualify as ‘armed conflict’. Howard, I’m pretty sure Congress didn’t effectively declare on Pancho Villa during the civil war in Mexico. The Mexican government did not buy into the argument that it had effectively agreed to allow the U.S. army to exercise “hot pursuit” rights against the rebels, and regarded the incursion as an act of war. The Barbary States were considered sovereign entities.… Read more »
Student,
It may be questioned whether the concept of “unlawful combatant” applies in the context of a non-international armed conflict, since combatant rights don’t apply. It is also questionable whether such a person can commit “murder in violation of the law of war,” especially if the victim was not protected by CA3. So it could make a difference.
In order to have a war, the one requirement is an enemy army. If there are tens of thousands of heavily armed people moving as an army, then the armed forces know what to do. The exact legal definition of state and non-state turns out to be a fiction of the surprisingly well named Department of State. For most of the post war period, the PLA was a several million strong non-state actor because “China” was legally ruled by a government in Formosa. Villa was the rebel that didn’t become President when the other rebel did. In Afghanistan, the government recognized by most countries was associated with the Northern Alliance, while most of the country was ruled by the Taliban who were recognized as a government by only Pakistan. When the military goes to a real country to fight a real army its approach to the laws of war is influenced as little as possible by diplomats and Washington lawyers who can go decades pretending the most fantastical nonsense (like Chiang Kai-shek was President of China in 1972) because it is foreign policy. The problem with Marko’s Part II position that “POW status as such absolutely does not exist in… Read more »
Howard,
You misunderstand two fundamentally different concepts: the recognition of states and the recognition of governments. Both of these are limited by the principle of effectiveness. The Chang Kai-Shek government was recognized as a government of all of China, but it in fact wasn’t. Likewise, the Taliban were not recognized as a legitimate government, but they were in fact the government of Afghanistan. Any conflict with the Taliban was a conflict with the state of Afghanistan, whether the Taliban were recognized as a legitimate government or not. This was actually accepted by the United States.
But I certainly take your general point that you need to have real armies or something closely resembling them to have armed conflicts. Does al Qaeda have an army? If it does, where is it? Where is this global armed conflict in fact taking place? The answer is that it is only taking place in Iraq and Afghanistan and nowhere else.
Al Qaeda had an army of 5000 to 15000 men in Afghanistan on 9/11. Remember, it was the training and command and control location for foreign fighters in the Balkans, Chechnya, and against the Northern Alliance. Much of that army was killed, and the remainder crossed into Waziristan (ethnically, linguistically, and politically more like Afghanistan than Pakistan) where it is currently headquartered and from which units periodically cross back into Afghanistan, travel to Iraq, or fight with Pakistani factions. However, neither al Qaeda nor the Taliban have surrendered, ceased fire, or been destroyed. Figuring out where an army is can be hard when it is hiding (see Mao Long March, Tito Partisans). Pershing never actually found Villa. Napoleon faced armies of initially 200,000 and eventually a million men, but never got close enough to actually see the enemy. For most of Vietnam the real enemy army was in the North, but the only ground fighting was in the South against units that completed travel along the Ho Chi Minh trail. You need an enemy army to start a war and fight battles, but the war can continue even when the bulk of the enemy army has moved to a point… Read more »