11 Apr More on Terrorism and the Geneva Conventions
I want to thank Roger for posting on the Pineda case (see below). I agree with most of his analysis, but I want to jump in here with a brief addendum. I would go farther than Roger and call this decision a win-win-win-win for the Administration.
The first holding of the court is exactly the position the administration has argued – that this is NOT an “international armed conflict” for the purposes of the Geneva Convention hence it CAN detain enemy combatants in arguable violation of this treaty. Put another way, the Administration has argued this is a “war” for domestic law purposes, but it is not an ordinary war (e.g. an “international armed conflict” or a “non-international armed conflict”) under the Geneva Conventions. The Geneva Conventions are therefore not the measuring stick by which whether the war on terrorism is a real war should be measured.
One oddity to the decision: the court does not address the question of the whether the Geneva Conventions are self-executing- surely a threshold question.
Crucially, for this decision, however, the defendant doesn’t get Geneva Convention protections, but he does get the full panoply of U.S. constitutional law protections during his trial, which is different from what the enemy combatants would in Guantanamo or elsewhere are getting. So don’t cry for Mr. Pineda. He will get his day in a civilian court.
Julian (and perhaps Roger),
I fail to see how the first holding in Pineda supports the US position that the GWOT is not an an international armed conflict. Although the victims of FARC’s attack were US nationals (presumably the basis for the US court’s jurisdiction), the terrorist acts were directed at influencing the Colombian government, not the US government. Isn’t that why the district court concluded — rightly, I think — that the murders took place during an internal armed conflict to which only common article 3 of the Geneva Conventions applies? How does that mean the GWOT is not an international armed conflict, given that terrorist groups like al-Qaida and the Taliban are killing US nationals in order to influence the US government? If the Taliban killed a US national in Kabul to influence Afghanistan, I can see describing the conflict as a non-international one. But not if they killed a US national in Kabul to influence the US. In other words, it seems to me that the object of intimidation — the home government of the terrorist group or a foreign government — controls whether the conflict is internal or international.
I’d appreciate your thoughts.
Julian,
According to international law, the law of war/international humanitarian law is applicable ONLY in two types of situations, which are, as you say, international armed conflicts and non-international armed conflicts. There is simply no other, third type of “war” under international law (and btw the term “war” itself is pretty much obsolete and has very little significance under modern international law). The “war on terror” is not legally speaking an armed conflict and the rules of IHL simply do not apply, while the wars in Iraq and Afghanistan on the other hand are such armed conflicts. See e.g. the ICRC’s position
here
Saying that the “world has changed” and that the law needs to take into account this change is a policy argument (even if it’s true), not a legal one, and you’d have to show me ample state practice and opinio juris and thereby do a proper legal analysis that would support the existence of a third type of armed conflict under international law, in variance with almost two centuries of preceeding state pratice and law.
The Geneva Conventions and customary IHL certainly do apply to all combatants captured on the battlefields of Iraq and Afghanistan – if they are unlawful combatants, as most of them are, these protections are more limited but are still there. The Geneva Conventions (and IHL) do not apply to suspected terrorists captured elsewhere – what applies to them (and to every other human being) is international human rights law.
US law is of course completely irrelevant to this discussion, as it is the position of international law which is controlling. And international human rights law allows states ample room to derogate from their regular obligations in a state of emergency and enact special (though not unreasonable) measures to deal with terrorism, as was done by every European state which has faced this problem for the past half century.
Regards,
Marko Milanovic, LL.M (Michigan)
Kevin,
Good question. Simply focusing on this one decision here would be my response. The relevant language from the opinion is as follows:
“As a threshold matter, the Geneva Convention applies to international armed conflicts between two or more “High Contracting Parties,” i.e., nations that are signatories to the treaty. Although the United States is such a High Contracting Party, FARC is not. Moreover, the defendant offers no evidence that FARC is involved in any armed conflict with the United States. To the contrary, the defendant expounds rather extensively about the status of the strife between FARC and Colombia, citing numerous academic commentaries that make clear that FARC and Colombia are the relevant parties to the armed conflict at issue in this case, which involves a purported civil war and not an international conflict. Indeed, the defendant concedes in his motion to dismiss that “the United States has not directly intervened militarily in the civil conflict in Colombia….” Consequently, the defendant is unable to show that he has “fallen into the power of the enemy” such that he would be subject to Geneva Convention protection with regard to his detention and prosecution by the United States.”
That could be read to stand for the simple proposition that since FARC is not a High Contracting Party this cannot be an international armed conflict. On this reading it likely would follow that other terrorist groups likewise are not High Contracting Parties and therefore the GWOT is not an international armed conflict. Another reading, one that focuses on the third and fourth sentences above, is that the United States and FARC are not waging battle against one another, and therefore this cannot be an international armed conflict. On this reading, while the Colombian civil war is not an international armed conflict, the U.S. struggle against terrorism might be an international armed conflict within the meaning of the Geneva Conventions because the terrorists and the United States are fighting one another. A third possibility is to focus on state-sponsored terrorism. If terrorists are acting at the behest of or in concert with a High Contracting Party, then perhaps the GWOT may be an international armed conflict within the meaning of the Geneva Conventions, at least to the extent that the terrorism is state-sponsored.
Roger Alford