Anthony Dworkin on Common Article Three, 'regularly constituted courts' , and insurgents

Anthony Dworkin, editor of the indispensable Crimes of War website, here, posted a comment to my previous post (the response to J, post below), on insurgents holding trials of government soldiers in Common Article Three conflicts. It is a very important response, so I am moving it to its own post here.

I don't have time right at this moment to respond fully, but want to say that I agree with a lot of what Anthony says. Specifically, I agree entirely that Common Article Three was not intended to permit insurgents to try and execute government soldiers for fighting the insurgents. This is an area in which there is asymmetry between what governments can do and what insurgents can do. International humanitarian law does not create any disability on the part of a government to try insurgents under its own domestic law for treason, rebellion, insurrection, etc., including domestic law liability for related crimes such as murder and destruction of property. Insurgents, on the other hand, have no such ability under domestic law, and international law does not provide that to them, either.

The question, then, is whether Common Article Three authorizes, or even might be said to require, that insurgent forces hold trials for violations of the laws of war themselves. There are three cases here - trials of your own insurgent forces, trials of government forces by insurgents, and trials of civilians by insurgents - in each case for violations of the laws and customs of war, and particularly those matters listed in Common Article Three itself. The hardest case, which Anthony focuses on, is trial by insurgents of government forces. The easiest case is trial of your own insurgent forces. (We don't talk about it much, but in fact violations by civilians are common, such as pillage and looting.)

I have been assuming that insurgent forces, especially those with long term struggles who are seeking legitimacy with local populations and abroad, will want to enforce discipline about the laws of war by trying obvious violations. It has been relatively common, in my experience anyway, and one reason I didn't question it here was that I've not known the ICRC to object to it. For example, in the Georgia-Abkhazia conflict around 1993 - marked by massive pillage, looting of property, hostage taking, murder and rape by both fighters and the local populations as a part of ethnic cleansing pressures - the Abkhaz insurgent side, partly in order to gain international sympathy, announced that pillage would be tried and punished by Abkhaz insurgent military courts. It did so, in at least one case I recall, trying and executing one of its own fighters (videotaping the execution and distributing it widely on TV apparently as an object lesson).

The local ICRC representative, with whom I discussed the case at length (I was there along with Erika Dailey and David Rieff for Human Rights Watch), objected to the death penalty, but was quite approving of the idea of trials provided they met the Article 75 standard. Indeed, that was the first time I really focused on the detailed requirements of Article 75. I didn't have any impression that the ICRC objected to reasonably fair trials by insurgents, at least among their own people, both fighters and civilians. The Abkhaz declared that they would apply the same standard to Georgian government soldiers and loose militias, but that didn't happen at least while I was monitoring it.

In El Salvador, earlier, in the 1980s, too, I seem to recall - I'm hazy, though, and need to go back to the HRW reports or ask Bob Goldman - had their own system of courts for dealing with at least their own people. Again, I don't recall the ICRC or HRW or others objecting - on the contrary, I understood that if you were the local authority, even though insurgent, you had an obligation to enforce order in the territory you controlled, not in a summary way, but by some means of rough hearings.

Anthony carves out the area that I mention above - relatively stable and long term control of territory by an insurgent group, creating a need and obligation to essentially govern the territory. That was arguably the case in Salvador, not really so much in Abkazia. However, for purposes of the question of 'regularly constituted courts', one thing I want to think about further is whether it matters - are these 'long term control of territory' cases still useful for the larger point I was aiming to make, viz., that what insurgent forces might be able to provide wouldn't satisfy regular government standards, and yet still qualify under Common Article Three? The question is whether the courts that would be provided by insurgents in long term control of territory situations are really governed under Common Article Three, so as to be a relevant example of what might satisfy a party's obligations thereunder. I think they do, but in light of what Anthony has raised, I want to think about it and read some more. Just because they are long term governed by the guerrillas doesn't make the conflict less governed by Common Article Three and its standards - or does it?

I would welcome responses by anyone interested here, as Anthony raises a very important question. (Anthony, am I addressing the question you are actually raising, or have I pushed things in some other direction?) I will collect the most substantive comments and put them up in a separate post, and I'll also attempt to do a little research. If anyone from the ICRC wanted to comment, that would also be very welcome - I don't want to be putting words in the ICRC's mouth, by recalling what its delegates' attitudes seemed to be in various conflicts I had monitored in the past.

(Also, note Anthony's article coming out in 2006 on asymmetric warfare - Anthony, please let me know when the book is out.)

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From Anthony Dworkin:

Ken,

I've been thinking about your point about CA3 and the notion of a "regularly constituted" court since you posted it first a few days ago. I entirely agree that the requirements of Common Article 3 apply equally to all parties to a non-international armed conflict. However I think you are making a further, and I believe unjustified, assumption by suggesting that the states that drafted and signed up to CA3 intended to legitimize trials by rebel or insurgent groups in all or most such conflicts.

The obligation in CA3 not to pass sentences and carry out executions without a proper trial may fall equally on all parties, but that does not necessarily mean that both parties are expected to be able to meet this standard. It would be entirely consistent for the law to set a threshold for legitimate sentence and execution that is unlikely to be met by an insurgent group, outside the specific circumstances where it has acquired stable control over a part of national territory and set up its own regular form of administration (as in the US Civil War or Spanish Civil War for instance).

Outside those circumstances, I don't see any reason to assume that the drafters of CA3 had in mind to carve out an implied authorization for insurgent groups to hold field trials of captured government soldiers and execute them. Most states that signed up to the convention would see such trials as illegitimate and any sentences they imposed would almost certainly be regarded as illegal acts of confinement or murder under the domestic law of the states concerned.

Indeed, the ICRC commentary on CA3 suggests that this particular provision was seen as having relevance primarily to the government side in a non-international conflict: it points out that it is only "summary" justice that it is intended to prohibit, that it does not give immunity to anyone, that the powers of arrest remain unaffected, and that CA3 "leaves intact the right of the State to prosecute, sentence and punish according to the law." To me, all this suggests that this provision was seen as something that had relevance primarily for the State, which would be the only party that could claim the powers of arrest and lawful prosecution under domestic law.

So I believe the best interpretation of this part of CA3 would probably be this: the restriction on passing sentences and carrying out executions without proper trial would mean that judicial proceedings by insurgent groups would generally be unlawful unless they had established something approaching a regular administration, while government trials would only be legitimate if they met the given standards of being regularly constituted and affording judicical guarantees etc...

Just to be clear, I should repeat that this interpretation does nothing to undermine the equal application of the law to both sides which Ken rightly emphasizes. Also, I should point out that it does not endorse in any way the idea that Ken mentioned in his post as a possible response by the human rights community, i.e. that there should be some sort of different standard for the two sides. On the contrary, I believe there is a uniform standard that applies equally to all parties, but that operates with different effect on the different parties because of their different situation.

Re Article 75 of API, this obviously builds on Common Article 3 but doesn't this require an even higher level of due process? It includes a guarantee of "all necessary rights and means of defence" (doesn't that include a right to counsel?) and also includes the right to be tried in one's presence and to examine all witnesses against one. In the plurality opinion in Hamdan, Stevens used API Art. 75 to interpret the meaning of CA3 and concluded that the commissions did not meet the standard of affording recognized judicial guarantees.I can't resist responding to one more general point in Ken's posting, about the role of reciprocity in the laws of war. It seems to me that Common Article 3 can only be understood as a big step away from a reciprocity-based paradigm for the law of armed conflict, since it applies to governments irrespective of whether insurgents commit to its standards either as a formal undertaking or in practice. In this sense it appeals to a different paradigm based on notions of fundamental human dignity, which appears for the first time in the law of armed conflict after World War II and is obviously related to the contemporary rise of the idea of human rights.

(Self-promotion: I have an essay on this subject, titled "The Laws of War in the Age of Asymmetric Conflict" forthcoming in The Barbarization of Warfare ed. George Kassimeris, NYU Press (US) and Hurst Publishers (UK) 2006.)