Hamdan, the ICRC Commentary to Protocol II, and Conflict Party Structure: A Response

by Marko Milanovic

My thanks to Professors Jinks, Goodman, and Slaughter for their reply, though I fear that their response is in many ways as misplaced as they think that my initial argument was. So, let me make a few things clear.

The substantive point of disagreement between us is the difference between an international and a non-international armed conflict: is it in the party structure alone, or do non-international armed conflicts also have a territorial limitation. This is indeed a very complex issue, and I also have no desire to rehash my arguments once again. I will point out, however, that before Hamdan was delivered only a very limited number of scholars argued that the ‘Global War on Terror’ was a non-international armed conflict. Especially outside of the United States, the consensus view still is that the ‘war on terror’ as such is not an armed conflict, and must be split into components which are, such as Iraq or Afghanistan, in precisely the same way as the Cold War, probably the greatest struggle between two states in human history, was not legally treated as a single armed conflict. A KGB spy was no more of an ‘unlawful enemy combatant’ in the Cold War than an al Qaeda terrorist planting a bomb in Madrid would be in the GWOT. This is, among others, the view of the ICRC. Indeed, in one of his academic articles Professor Jinks admits that he reached the conclusion that the GWOT is a non-international armed conflict ‘only after some difficulty.’ (46 Virginia JIL 20).

Let’s disregard for now the substantive point. I must make it clear that I have absolutely no problems with the authors of the brief. None of my previous posts was in any way meant as a criticism of the brief (certainly not at the personal level), even if I disagree with some of the points they have made. My criticism was of the Supreme Court only.

I also have absolutely no doubt that the error in citation made in the brief was just a simple mistake, and I don’t think that I have given the opposite impression in the original post. The incomplete quotation given in the brief is also not by itself problematic, because the brief cites the ICRC Commentary to the AP only for the simple proposition that international armed conflicts can exist between states alone (which is not how it is cited by the Supreme Court).

The problem is not the simple mistake that the brief made. The problem is that the Court’ use of this same citation and incomplete quotation makes it perfectly clear that they DID NOT EVEN READ the ICRC Commentary to the APs. They also quite seriously misinterpret the Commentary to GC III, as I have shown in my previous post, coupled, I might add, with one more miscitation.

Other ambiguities in the Court’s judgment which I pointed out lead me to only conclusion – that the Court was unable to understand the various complex issues of IHL before it, and that it therefore relied entirely on the Jinks, Goodman and Slaughter amicus brief, instead of engaging in an independent examination of the issues. That is what I find so shameful.

http://opiniojuris.org/2007/05/03/hamdan-the-icrc-commentary-to-protocol-ii-and-conflict-party-structure-a-response/

4 Responses

  1. Marko,

    I am sympathetic to the idea that the “Global War on Terror” is not an armed conflict, whether international or non-international. I do not think the question necessarily turns only on the status of the parties (state vs. non-state) and territorial boundaries of the conflict. Rather, the question should turn on the nature of the hostilities (continuous or sporadic, etc.) and the status of the enemy as a “belligerent” (sufficient level of command and organization, control of territory and whatnot). I’m not sure whether Hamdan decided whether the GWOT (or whatever we’re calling it these days) is actually a global armed conflict of a non-international character, or whether al-Qaeda was a party to the conflict in Afghanistan and wherever else actual hostilities in fact occur. It is certainly understandable why they would want to avoid that question if at all possible!

  2. Might I suggest that the international/non-international debate is a categorization quibble about how big or small are these vessels. For the court, the question at the heart wa whether “no Geneva law” or “Geneva law” applied to this Al-Qaeda person. The answer given was “Geneva law” applies and the court then looked to how the person is to be treated under Geneva. Whether full Geneva application or mini-Geneva (i.e. Common Article 3) application, Stevens understood there was a floor on the type of treatment and found Common Article 3 worked well enough to articulate that floor.

    Best,

    Ben

  3. Whether full Geneva application or mini-Geneva (i.e. Common Article 3) application, Stevens understood there was a floor on the type of treatment and found Common Article 3 worked well enough to articulate that floor.

    Indeed, but the manner in which this was done seems to imply he was interested in the law as means to an end, which is appalling. That’s my whole problem with CIL, that it is a convenient and unaccountable means to reach the end that you desire, regardless of the actual treaty language.

  4. CIL is carrying more water here than it deserves relative to plenty of areas of domestic law. Take incidental damages for seller after cancellation in the Uniform Commercial Code – some courts read that as meaning consequential damages are included and others read the fact that consequential damages is excluded from the litany of possible damages as meaning that consequential damages are not available to a seller. Both judges would look at the same text and say this is what they mean. Whether that is using the law as a means to an end can be discussed. I think that where the judge is seeking justice is not such a bad thing. I sensed that Stevens was seeking justice.

    Best,

    Ben

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