Epilogue: Torturing Mr. Martens

by Marko Milanovic

Lest I be accused of being overly critical of the US Supreme Court, I will now try to the show what must qualify as one of the worst examples of manipulation and instrumentalization of international law in recent memory. Predictably, that legal manipulation was not a brain child of the Supreme Court, but of the ever inventive lawyers working for the Bush administration. Readers will recall that before the Hamdan ruling the administration argued that the ‘global war on terror’ is legally an international armed conflict between the United States and al Qaeda. In its merits brief in Hamdan (p. 26), the government argued its position in the following way:

Petitioner suggests that, if the Geneva Convention does not apply to al Qaeda, the law of war does not apply either. That suggestion is baseless. There is no field preemption under the Geneva Convention. The Convention seeks to regulate the conduct of warfare to which it applies with respect to nation-states that have entered the Convention and agreed to abide by its terms, but it does not purport to apply to every armed conflict that might arise or to crowd out the common law of war. Instead, as explained below, the Convention applies only to those conflicts identified in Articles 2 and 3. If an armed conflict, therefore, does not fall within the Convention, the Convention simply does not regulate it. Nothing in the Convention prohibits a belligerent party from applying the law of war to a conflict to which the Convention does not apply. (5)

Now, this paragraph would certainly be deserving of a Razzie award for the wrongest statement of the law evah, if such award existed. Not only is the brief’s use of the term ‘field preemption’ simply lovely in the context of international law, but its main point, that there are armed conflicts which fall outside the material scope of the Geneva Conventions, is absolutely incorrect. Why? Well, that is because the Geneva Conventions actually invented the legal concept and term ‘armed conflict.’ Before 1949 the law of war dealt only with, well, war, an armed struggle between two sovereign states, and it is only with Geneva that we have started speaking of armed conflicts. ‘International armed conflict’ in particular became a substitute of sorts for the term ‘war,’ retaining under CA2 its original meaning solely as interstate conflict. Geneva does not apply to an international armed conflict only when one of the belligerent states is not a party to the treaties, and so customary IHL would be the only body of applicable law (that possibility is now of course theoretical, as all states in the world are parties to the 1949 conventions).

But, much more interesting than analyzing this rather obvious error in substance would be to take a look at the supporting authorities cited by the government for its manifestly incorrect argument. That one can find in footnote 5 of the brief, which reads:

Cf. Geneva Convention art. 142, 6 U.S.T. at 3424, 75 U.N.T.S. at 242 (noting that a denunciation of the Convention by a High Contracting Party “shall have effect only in respect of the denouncing Power” and “shall in no way impart the obligations which the Parties to the conflict shall remain bound to fulfill by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of the public conscience”).

One would expect from the tone of the government’s argument that it would have provided as authority a few examples of international armed conflicts which fell out of the material scope of application of the Geneva Conventions. The government provides none, of course, as no such examples exist. What it provides instead, as its sole authority, is – of all things – Art. 142 of GC III, which contains the 1949 version of the celebrated Martens Clause. For those unfamiliar with IHL, the Martens Clause was first introduced into the 1899 and 1907 Hague Conventions, and was drafted by the imperial Russian jurist, Professor F.F. Martens, originally as a political compromise. Today, however, it is widely seen as the embodiment of the humanitarian spirit of the laws of armed conflict, something of an idol to which all humanitarian lawyers pray to (see more here and here)

The Clause itself, of course, is very general and means nothing and everything. It has been used by some states and authors, for example, which argued that it independently renders any use of nuclear weapons illegal, as these weapons are by their very nature contrary to the dictates of public conscience. Yet, one thing remained constant with the Martens Clause – those invoking always had an indisputable humanitarian purpose, even if their legal arguments were flimsy at best. Until the Bush administration, that is, whose legal arguments were just as flimsy, but whose purpose was everything but humanitarian. Never before has the Clause been used as an argument that certain persons are beyond all protections of the law, all with the goal of these persons being subjected to coercive interrogation through torture and inhumane treatment. But, I guess there’s a first time for everything.


4 Responses

  1. Thank you for shedding this light on this perversion. People need to meditate on the import of what you are saying as it truly highlights what a perverse approach is at work.



  2. “Before 1949 the law of war dealt only with, well, war, an armed struggle between two sovereign states” Again we have a statement that asserts something history clearly shows to be wrong. The Civil War did not involve two sovereign states, although it was fought according to the laws of war. The Revolutionary War did not recognize US sovereignty, although the laws of war were often used. In Vietnam we did not recognize the Viet Cong as a soverign state. To have a war you need two armies. Normally armies are raised by sovereign states. Occasionally an army represents an alliance of states (SHAEF in WWII, NATO, UN in Korea). However, when Clive conquered India he used the army of the East India Company, not the British Crown.

    This is important in the current conflict because there are actually two laws of war at play. We recognize a set of rules established by the European armies over the last few centuries, that have largely been adopted as what we call “international law”. The enemy obeys Sharia, an alternate international law that for a thousand years governed the lands between Indonesia and Spain. When al Qaeda declares war, fights battles, and takes prisoners it only accepts Sharia’s laws of war because they are the laws of God and not the laws of man.

    This is not a political, moral, or legal statement. We didn’t invite fundamentalist Islam to the table when the GC was ratified. They reject our law. It isn’t that they don’t regard themselves bound by the GC, but rather that they do regard themselves bound by a different law. So however we work out our position on the GC and the laws of war, we have to do so with the clear understanding that the other side in this war gives as little concern to our legal arguments as we give to their theological discussions. There is a reason why no member of al Qaeda to date has given his name, rank, and serial number and demanded his rights as a POW under the Geneva Convention.

    The laws of war predate Geneva. That is how armies took and exchanged prisoners for centuries. If the GC had never been written, then the old laws of war would still provide a basis for managing conflicts. So it is not unreasonable to argue as a matter of logic that if the GC doesn’t apply to something, then the laws of war would still apply. If pigs could fly then they would still be subject to the law of gravity. If the GC did not apply to an armed conflict among western armies (not saying that this is any more possible than flying pigs), then the laws of war still would. However, in this particular conflict, we still have to make policy in light of the fact that the enemy accepts neither the GC nor the European laws of war.

  3. Howard, as I tried to explain earlier, in the American Civil War belligerency was recognized by the US government and third states, and that is why the law of war applied.

    The law of war did NOT apply during the revolutionary war – at least it was not applied by the British. Ditto for the conquest of India. India and other non-European countries were not considered by the European Powers to have been ‘civilized’ countries and members of the international community, and they extended no legal protections to them. According to the positive international law of centuries past, the Spanish rape of South America, the British conquest of their dominions, or the Dutch colonial empire in Southeast Asia were all created without the slightest application of the law of war.

    Anyway, if you need any further confirmation that the law of war historically applied only to wars between (truly) sovereign states, I suggest you take a look at Oppenheim’s International Law or Dinstein’s War, Aggression and Self-Defense.

  4. You have argued, and persuasively in the context of a Supreme Court decision, that someone does not have the status of POW unless we are required to grant him that status (we may treat someone as a POW, but that doesn’t legally make him a POW). Here you could again be arguing that the laws of war can only be “laws” in circumstances where they must be applied. I can accept that as a definition.

    However, when armies who have been trained to obey the laws of war are deployed, they will conduct themselves and treat prisoners according to that training as long as the enemy behaves in a similar manner. When “His Majesty’s and the Honorable Company’s Forces” fought in Java, it was a battle of civilized armies that followed the laws of war even if the armies technically belonged to the British and Dutch East India Companies. When Beauregard demanded and eventually accepted the surrender of Fort Sumpter, the exchange followed the laws of war not because of “belligerency” or third states (there had not been time for international opinion to develop). The commanders simply behaved in what they regarded as proper military conduct. In this sense the “laws of war” also double as the default “rules of combat” when the parties agree and in that sense (application in practice) they have a wider range than just the legal mandate.

    Of course the US Army did not treat Native Americans with the same code of conduct it used fighting others. I do not claim that armies always behaved in a civilized manner, but rather that behavior tended to be determined by how the enemy was viewed and not by a judgement about the legal status of the belligerency.

    Any code of conduct, however, should realistically anticipate the behavior of the enemy. It makes no sense to assume mutual acceptance of the GC only to become “outraged” when the enemy, who has rejected it from the start, acts contrary to its provisions. In our current conflict, we must expect to eventually see more televised beheadings because that is the enemy we confront. The Supreme Court is five years late in clearly defining the legal status of the conflict. The armed forces need to know how to behave on the first day. That is when the “laws of war” apply as a matter of policy and not as a legal opinion.

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