Why Can’t US Courts Understand IHL?

by Kevin Jon Heller

While researching an essay on the use of analogy in IHL, I had the misfortune of reading Al Warafi v. Obama, a recent habeas case involving an alleged member of the Taliban. Al Warafi argued that even if he was a member of the Taliban — which he denied — he was entitled to be treated in detention as permanent medical personnel under Article 24 of the First Geneva Convention (GC I), which provides that “[m]edical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease… shall be respected and protected in all circumstances.” That protected status is very important, because other provisions in GC I — as well as in the First Additional Protocol (AP I), which extends the rules of GC I — require medics to be given a number of protections and privileges that other detainees do not enjoy.

The District Court rejected Al Warafi’s argument, concluding (p. 17) that he did not qualify as permanent medical personnel under Article 24 because the Taliban had not provided him with “the proof required by the Convention — that is, official identification demonstrating that he is entitled to protected status under Article 24. Absent such identification, petitioner simply cannot prove that he qualifies as Article 24 personnel.” In reaching the conclusion, the District Court specifically relied on paragraph 734 of the Commentary to AP I:

A soldier with medical duties is actually an able-bodied person who might well engage in combat; a medical vehicle could be used to transport ammunition rather than the wounded or medical supplies. Thus it is essential for medical personnel, units, materials and transports to be identified in order to ensure the protection to which they are entitled, which is identical to that accorded the wounded, sick and shipwrecked.

The DC Circuit then rejected Al Warafi’s appeal of the District Court’s decision on the same grounds.

I was puzzled by paragraph 734 when I came across it in the District Court’s decision. It seemed obvious that a medic who was not wearing the identification required by GC I and AP I could be targeted without violating the principle of distinction. It seemed equally obvious that a captured medic without proper identification might have a difficult time convincing his captors of his status. But I found it difficult to believe GC I and AP 1 would actually deprive a medic of his protected status simply because he did not have the proper identification. Doing so would serve no humanitarian purpose whatsoever, assuming the individual could establish his status by other means.

But paragraph 734 said what it said. So surely the District Court’s conclusion was correct. Right?

Wrong. Had the District Court bothered to read the next twelve paragraphs in the Commentary to AP I, it would have realised that, in fact, proper identification is not necessary for a medic to be entitled to protected status. Here is paragraph 746 of the Commentary to AP I:

The basic principle is stated in this first paragraph. The right to respect and protection of medical personnel and medical objects would be meaningless if they could not be clearly recognized. The Parties to the conflict therefore have a great interest in seeing that such personnel and objects can be identified by the enemy. Thus the rule laid down here is in the interests of those who are responsible for observing it. In fact, it would be the medical personnel and medical objects of the Party concerned which would suffer from poor means of identification and which could become the target of an enemy that had not identified them. Yet it must be emphasized that the means of identification do not constitute the right to protection, and from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.

In other words: the District Court and the DC Circuit should not have dismissed Al Warafi’s habeas petition on the ground the Taliban had not issued him with “official identification demonstrating that he is entitled to protected status.” Neither GC I nor AP I require such identification.

Another day, another misunderstanding of IHL by US courts. Sad, but predictable.


9 Responses

  1. Response…Completely agree with Jon. However, why was Court even looking at GC I and AP I with respect to a NIAC? Only relevant by analogy from IAC, if at all, right? And even if relevant by analogy, I cannot imagine that any purported IAC requirement for identification would likewise carry over.

    The better approach was that by Brown in his concurrence (although not entirely satisfactory).

    But on the precise point by made by Jon, absolutely right.

  2. Response…Prof. Heller, thanks for the post discussing our case. We of course were familiar with the full discussion of this issue in the commentaries, and our briefs in both district court and circuit court called those paragraphs to the judges’ attention — including the sentence you emphasize in bold. The judges could not have been unaware that these statements existed.

  3. LFW,

    I assumed as much — but I didn’t want to say so without definitive evidence. It’s almost as if the DC and CoA wanted to convict at all costs…

  4. Response…It seems as though the court was using the use of identification as a minimum standard for determining whether Al Warafi was a permanent medic. Obviously, the Taliban rely on their ability to manipulate their identity to prevent capture and survive. I think that there is a strong state interest in preventing terrorist members from using the Geneva convention to protect themselves while they disregard it to hurt others. This is not to say that states should be given a free pass to ignore GC when their enemy does.

  5. Matthew,

    The problem is that the commentary to Art. 24 specifically rules out using identification as a “minimum standard.” I took no position in the post about whether Al Warafi could prove his status as a medic through other means; I don’t know enough about the facts to venture an informed opinion. But he was entitled to make the case and not have his habeas dismissed on erroneous legal grounds.

  6. This article was very pessimistic, but didn’t lack honesty. International Humanitarian Law is an extremely important area of law to me, and I have noticed time and time again that yes, the US Courts don’t understand IHL. This was a great example of what lawyers and scholars interested in IHL notice again and again – the US doesn’t seem to give IHL enough weight. They also seem more than willing to disregard it when there’s some safety issues. For example, in this case, the guy may or may not have been a part of the Tailban. But, that doesn’t mean the US has an excuse to disregard International Humanitarian Law when they feel threatened. Simply put, international humanitarian law only arises in times of crisis, so the US will ALWAYS feel threatened when IHL is a concern. I would love to see US courts being to put more weight and emphasis in international law, because I feel that the US consistently sets a poor example to the rest of the world in their handling of international law.

  7. Response…It seems to me that the Court was trying to reconcile GC I and domestic law in a way to get the result that the petitioner could not be identified as Art.24 personnel given strong state interest. According to GC I and AP I, medical personnel “exclusively engaged” in med work is granted protection and immunity “in all circumstances.” Court then distinguished between exclusive medic and “semi-combatant and semi-medical.” The latter is merely protected in limited circumstances under Art.25. In my understanding, Court reasoned that official identification is “necessary” to prove “permanent” medical personnel — that is, Art 24 personnel — absent of alternative means. Commentary does point out “… from the moment that medical personnel or medical objects have been identified, shortcomings in the means of identification cannot be used as a pretext for failing to respect them.” In footnote 6, the Court also looked into alternative documentation — such as pay-book and special identity card (also under Army Regulation) — to prove identity. However, the alternative means also failed. Therefore, the premises “from the moment that medical personnel … have been identified” has not met, not to mention that the Court already found petitioner was “more likely than not part of the Taliban” — which I still could not get why.

  8. “… Another day, another misunderstanding …” However, while it takes nothing away from the court’s obligation to render a verdict in compliance with always the full set of legal rules and precedents applicable in a case (or to state how they recognize the texts in deviating from them!), it would also be the duty of any attorney representing the “defendant” to cite these and “force” the court to reconsider these stipulations in their sentence. Yes, it is a shame if a court needs an attorney as an “amicus curiae” to read them the “riot act” which they should read themselves, but nevertheless, that is why attorneys are there or we could save a lot of money and time and always rely on the courts to “get it right”.

  9. apparently there was adequate briefing, but one general problem in the U.S. is that most law students never take a course in international law and similarly, understandably, most judges have never taken a course in international law.

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