12 Aug John Bellinger Reflects on the 61st Anniversary of the Geneva Conventions
John Bellinger reflects on the meaning of the four Geneva Conventions of 1949 in today’s world, in a post at Foreign Policy:
Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts. The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America’s “commitment” to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.
John tried to do this when he was Legal Advisor at State and the rest of the world decidedly rejected his attempts to pitch “reinterpretation or new treaty” to provide cover for the bogus Bush game playing with language which was put in place in 2002 precisely to permit torture. The United States has signed these treaties and they are obligations on the United States. There is no need for this or any president to say “s/he accepts them”. That raises a spectre that US ratification is somehow open to a President informing what he or she accepts. If the President does that it is simply a question of whether the US is in compliance with its obligation or not – not a question of whether there is an obligation ab initio. We should not go down John’s path of not so subtly switching the game on US compliance with its international obligations. Rather, what we should do is hold the President to the obligation of the United States – he or she is not above the United States. Including holding past President Bush to the obligation through criminal prosecution in US domestic courts for torture.
Best,
Ben
Best,
Ben
Prof. Davis,
I have a fundamental question for you. Isn’t it the case that the President of the United States can renounce a treaty? Assuming there is no specific exit requirement in said treaty, can’t the President simply say that the US is no longer bound by the treaty. And if that is true, doesn’t the President have the lesser power — to say that a treaty no longer applies in certain circumstances? Assuming arguendo that Geneva applies to the “war on terror”, can’t the President just say that it doesn’t apply any longer. Didn’t Bush effectively (if inartfully) do that?
I just wonder what NewStream Dream has to say about Iran’s obligations to allow nuclear inspectors, North Korea’s obligations not to threaten other countries under the UN Charter and so on: what is the fuss if their presidents/leaders say that they just do not apply any longer? Why is the US always so concerned about that?
@NewStream Dream
If it was so easy to unsign a treaty or interpret it yourself, there would be not treaty in the World and nobody would sign one. Why would one negotiate for decades if the very next day the very first head of state can break it or claim that it does not apply in a specific case? Imagine that the Belgian prime minister announces tomorrow that the genocide convention does not apply in his specific case and just gasses six million of his citizens.
Even if a state unsigns a treaty, that does not necessarily relieve that country of the obligations in the treaty. One of the reasons why, is because some of the rules in the treaty are just a formulation of already existing customary rules of international law, or they become such rules after (and maybe because of the fact that) the treaty is signed. For instance genocide and torture are peremptory norms of international law and even if states unsign the Genocide Convention or the Convention Against Torture, states are still bound by the rules in those treaties.
The answer is quite clear: yes a President (or leader) can withdraw his/her state from a treaty, but the question that is begged is whether such a President (or leader) has in fact done what is necessary to make such a withdrawal. If we compare the process by which Bush withdrew the US from the optional protocol to the Vienna Convention on Consular Relations (I am going from memory here) after the first ICJ judgment in the Mexico-US case (notice etc) with what has happened with regard to the Geneva Conventions one sees a careful effort to use domestic reinterpretation of the international obligation – but not to go all the way to withdrawing of the treaty. In the run up to the Military Commission Act of 2006 generals and former general types and diplomats weighed in very heavily to avoid the appearance of the US trying to unilaterally change the nature of its treaty obligations vis a vis other states – while putting in place that retrograde domestic law for domestic law purposes. Of course, the US could not extract itself from its treaty obligations under either approach without withdrawing from the treaty under the basic rule – no state can use its internal law to extract itself… Read more »
Here is new news on Khadr’s case I just saw. The one military lawyer on Khadr’s team fell ill and will be out for a month. Let’s think about that military JAG doing his/her job in that place.
http://www.nytimes.com/reuters/2010/08/13/news/news-us-guantanamo-canadian.html?hp
And, apparently Khadr has a Canadian lawyer, but under the rules he cannot appear for him. Folks remember Nuremberg where one of the first rules was that the defendant could be represented by any lawyer of his choosing?
I am so sick of this kangaroo commission process that has its genesis in the PMO on 2001 and then politically inspired efforts to put lipstick on the pig ever since.
Best,
Ben
Isn’t the Vienna Convention of the Law of Treaties specifically non-retroactive?
Think the Geneva conventions have a mechanism for withdrawal, see the sections on “denunciation” which, I believe, no country has ever done.
M. Gross – thanks for both those points. Operating from vague memory here. Always dangerous!
May I take this occasion to draw everyone’s attention to a book that I have read this summer. It is the English translation of Hans Fallada’s Every Man Dies Alone. Written in 24 days in 1946 it apparently was only translated into English in 2009 (A russian colleague of mine said he had read it in Russia when he lived there.)
While there are differences of opinion on the book (scathing Guardian review; glowing NYTimes review), I just found it everything and more: a thriller, a romance, and high literature. Based on the true story of anti-Nazi resistance by an ordinary German couple during the Third Reich whose name was Hempel.
Best,
Ben
I don’t understand Bellinger’s comment. As Ben points out, the US is a party to the conventions and therefore why should Obama announce that the United States accepts specific provisions? Also, the Supreme Court ruled in Hamdan that common Article III applies to members of Al Qaeda in US custody. What is left to discuss exactly?
I finally can’t help responding since the commenters appear to be commenting without having taken the time to read my op-ed. The op-ed urges the Obama Administration, if it is not going to apply either the Third or Fourth Conventions to detained persons at Guantanamo and Bagram (which the Administration doesn’t seem inclined to do), AT LEAST to announce that the U.S. accepts Article 75 of Protocol I as customary international law (a step I supported during the previous Administration and which the Obama Administration is still studying). The Administration should also urge the Senate to ratify Additional Protocol II. Together, these two steps would help the Administration to clarify the international law rules that the U.S. is applying to detainees (since otherwise the Administration is applying only Common Article 3). I would have thought that many OJ readers would support having the Obama Administration clarify the international legal rules it is applying to detention. Moreover, my op-ed does not propose, nor have I ever suggested, a new treaty or re-interpretation of the Geneva Conventions. My op-ed argues that in situations where the existing Geneva Conventions do not provide clear legal guidance on certain questions (such as when certain civilians who participate in hostilities qualify as combatants or… Read more »
Happy that you come into clarify. I read what it said above which speaks to Conventions and your piece and the point does not appear to be a merely Article 75 rule. As to the “clear legal guidance”, I do not buy and have not bought that canard for all these years since that game was started back in 2001. Lawyerly parsing is a well known game which was part and parcel of the reinterpretation to torture effort. A classic is Bradbury’s conditions of confinement as opposed to conditions of interrogation memos – a very thinly veiled attempt to take advantage of internal US domestic law precedents on conditions of confinement while not taking into account the totality of what is being done to the detainee from the point of view of international standards. Salami sandwiching is an old trick. I can remember the Yoo memos making up a standard out of thin air that even the OPR whitewash had a hard time denying. I can remember the word play with Geneva Conventions language. I can remember President Bush having such a terribly hard time with the words “outrages against personal dignity” after Hamdan. As if Common Article 3 only came… Read more »
For what it is worth, my take is that the U.S. should clarify that it views Art. 75, Protocol I as customary international law applicable to ALL armed conflict of any type. That would eliminate the need to address the second protocol as its protections would be largely superfluous. Given the fairly narrow scope of armed conflict governed by the second protocol, I see more utility in recognizing that most (not all) of the first protocol codifies customary rules applicable to all armed conflict of any type. I believe this also to be more consistent with historical (pre-9/11) U.S. practice.
Ben,
What is your position with respect to the proper legal status of captured al Qaeda fighters?
-Are they prisoners of war per Geneva III? If so, under which category of Article 4 do they fall?
-Are they protected civilians per Geneva IV?
What is their proper status?
Definitely Geneva IV – Security Detainees.
Possibly, depending on the relation under the Article 4(a) categories with the Taliban government, Geneva III POW’s under several of the categories including the levee en masse category.
Taliban, definitely Geneva III POW’s.
Best,
Ben
The Taliban army, including the 055 Brigade of al Qaeda trained foreign fighters, should be covered by GC III Art 4 “(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.” However, if you insist that even though the Taliban had exercised complete control of 90% of the country for years and was the only functioning government in Afghanistan, that because the US did not recognize it, the government was only a “party” to a civil war, then “(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.” The Levee en Masse section “(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces” clearly does not apply to foreign volunteers (not inhabitants) who came to Afghanistan to enlist and who went through months of basic training at the al Faroque camp and therefore had lots of time “to form themselves into regular armed units” and in fact were formed into a regular armed unit called the 055 Brigade even if… Read more »
Thanks Howard. On the Taliban and O55 and GCIII POW – we agree. “The Levee en Masse section “(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces” clearly does not apply to foreign volunteers (not inhabitants) who came to Afghanistan to enlist and who went through months of basic training at the al Faroque camp and therefore had lots of time “to form themselves into regular armed units” and in fact were formed into a regular armed unit called the 055 Brigade even if they did not wear uniforms.” I think your definition is too narrow of who could be covered by levee en masse. This is the eternal debate on restrictive or non-restrictive views on the application of each of these categories. “That said, although the Army of Afghanistan under the Taliban may have met the criteria set out in Article 4 of GC III, the members of that army did not meet the criteria of wearing uniforms, or of “Art 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental,… Read more »
I would feel much more comfortable with clarification efforts AFTER the US criminally prosecuted its high level civilians and generals for devising and implementing torture. Not just low-level grunts encouraged to violate their UCMJ obligations by suits and folks with stars who then leave them twisting in the wind as “a few bad apples.” The bad apples were in the War Council and the National Security Principals meetings. They know who they are and they know what they did.
Best,
Ben
What GC IV says is: “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.” What the ICRC commentary says is: “p.46] A. — ‘ On the territory of belligerent States: ‘ protection is accorded under Article 4 to all persons of foreign nationality and to persons without any nationality. The following are, however, excluded: … 2) Nationals of a neutral or co-belligerent State, so long as the State in question has normal diplomatic representation in the State in whose territory they are;” So I can see the basis for confusion. In the text of the convention, the distinction is that citizens of neutral nations are not covered if their nation has diplomatic relations with the US (” the State in whose hands they are”, the detaining power). That is, Khadr who was not an Afghan national is protected, or not, by the Canadian government and its normal diplomatic relations with the US. If, however, you read the text of the commentary,… Read more »
And Howard we see the point – the text, the logic of the text, the commentary, and interpretation of the commentary. “Of course, if you interpret the commentary (interpret the interpretation?) so that “in whose territory they are” means where they are being detained, then nationals of neutral nations detained at Bagram are not protected if their countries had diplomatic relations with the Taliban (or does it change to be the current government), while those at Gitmo are not protected if their countries had diplomatic relations with Cuba. Is that even plausible?” I put to the side the Cuba point because allowing the detaining power to change the status by moving someone to another country to change the “where they are” seems at odds with the whole idea of GCIV protections for civilians or security detainees. On the Taliban “where they are” and someone at Bagram, if Pakistan or Dubai had diplomatic relations with the Taliban then there was the possibility that these countries could assert diplomatic protection with the Taliban. And, with the question with the Karzai vs. the Taliban government I guess the argument would be that those countries with diplomatic relations with Karzai could assert diplomatic protection for their nationals permitting… Read more »
I guess I started something that went quite a ways before I’ve been able to come back. Thanks to all for the detailed discussion. On the smaller point of detained citizens of neutrals, asking whether the neutral in question has normal diplomatic relations with power X – regardless of how we resolve who X is – only makes sense if diplomatic protection is contemplated. Thus GCIV does view diplomatic protection, however inadequate it may prove in practice, as primary in certain cases, with direct GCIV protection only a substitute where diplomatic protection is unavailable. Moreover, the Afghan situation – where many of the detainees’ countries did not or do not recognize the Afghan government – is anomalous. When neutrals participate or are caught up in other conflicts where more ordinary relations prevail, to view GCIV as excluding them from the protected persons category if their country has ordinary relations with the country where they were detained (rather than with the country that detained them) will lead to perverse results. Anachronistically, it would have excluded from direct GCIV protection American missionaries captured by Japan in China during the Second World War, because the US maintained ordinary diplomatic relations with China.… Read more »
Nathan, Your points are all well taken. I guess I do not see the round hole or square peg being so significantly different that there is a need to squeeze. Effort to clarify to mask dumbing down is my worry. I well take the situations of American missionaries in China as compared to Canadians in Afghanistan and which way the interpretation would operate. I guess what I would say is if those American missionaries took up arms and we were post-1949 the object and purpose of the GC IV is to not leave them only to diplomatic protection if there is an issue of neutrality. It seems the essence is the security detainee minimal protection. As to territory or whatever being the classic goal, the high value detainees are the equivalent of the German general staff or Heydrich – the purpose in grabbing or killing him and commando type operations would seem to me to have the same interest. And, given AlQaeda’s sworn goal for a Caliphate spreading around the world, and our goal to wrest Afghanistan from Taliban control – I am feeling a lot of territorial battles in this space in any event. As to detainees picked up… Read more »