Epilogue: Torturing Mr. Martens
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.