Hamdan and Common Article Three's obligations upon non-state actors

(Update, September 17, 2006. I have more to say, in light of the current debates in Congress about defining terms in Common Article Three, at this post here. Also this post.)

(This post is a follow-up to a broader discussion of Common Article Three and Hamdan, here. You might want to start with it if you are looking for an introduction to the debate.)

One of the concerns I have had reading the commentary that has emerged since Hamdan was issued is the tendency of American lawyers to assert views about international law of war based solely on their plain language readings of words that, in fact, are terms of art of long standing in treaties of long standing. An example is the Hamdan decision's recourse to Webster's dictionary rather than to the ICRC Commentaries that provide background to the intent of the parties creating the Geneva Conventions of 1949. More generally, lawyers very sophisticated in American law, including national security law and its particular jurisprudence in armed conflict from the Civil War on, do not necessarily have the same background and historical context when dealing with very old treaties such as the Geneva Conventions.

Common Article Three presents a special, and especially dangerous, instance of this lack of grounding. The Hamdan decision - whether Justice Stevens, for example, or Justice Alito in dissent - takes it for granted that the interpretation of the critical phrase "regularly constituted court" draws exclusively upon what that means for governments. Likewise Jeremy Rabkin, in a very fine, very thoughtful article on Hamdan in the Weekly Standard, here, assumes that it is a set of obligations solely upon governments - High Contracting Parties. ("Article 3 stipulates that in "case of armed conflict not of an international character," states that adhere to the con vention are still bound to respect certain "minimum . . . provisions." Emphasis added - my concern here is that it is not only states, but all parties to a conflict.) (This is a minor quibble with a very important, very well reasoned article - I agree firmly with Jeremy's conclusion in that article that Hamdan was a "defensible ruling" but that a defensible ruling "can still be a wrong one.")

It is easy to see how American lawyers and commentators would conclude that Common Article Three applies exclusively to State Parties to the Geneva Conventions. The text of Common Article Three refers to the "each Party to the conflict" or "Parties to the conflict." By capitalizing the "P," it would appear to refer to the definition of High Contracting Parties - i.e., states party to the Geneva Conventions. Non-state actors cannot become signatories to the conventions, and hence they are not "Parties" and Common Article Three does not apply to them - insurgents, rebels, etc.

Unfortunately, that conclusion is simply wrong as a matter of the history and universal understanding of the Geneva Conventions and Common Article Three. Look at the ICRC Commentary on the First Geneva Convention - a summary of the diplomatic discussions that took place, providing essential background to the treaty, under Common Article Three, here. It says, among other things, that:

' Obligations of the Parties '. -- The words "each Party" mark the great progress which the passage of a few years has sufficed to bring about in international law. For until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which was not even required to represent a legal entity capable of undertaking international obligations.Each of the Parties will thus be required to apply Article 3 by the mere fact of that Party's existence and of the existence of an armed conflict between it and the other Party. The obligation is absolute for each of the Parties, and independent of the obligation on the other Party.

The drafters of the 1949 Geneva Conventions understood Common Article Three to oblige non-state parties to a conflict who are not parties to the treaty. The "each" was understood to apply to insurgents as well as governments. It has always been understood that way - ask the ICRC if you don't believe me. The obligations for states and insurgents under Common Article Three are identical. It is one of the few places in international law where treaty law directly obliges non-state actors.

Now, regular readers of this blog, if there are any, understand that I am not a huge fan of international law, at least under the liberal internationalist view of it. I also have considerable problems occasionally with the ICRC's views. But even a hardened international law skeptic like myself is nonetheless greatly disturbed by the cavalier way in which an absolutely fundamental point of legal obligation is ignored in the interpretation of international law in the United States, largely through ignorance, so far as I can tell, of whence it came historically. The risks for reducing the level of protection to civilians from what was achieved in the 1949 Geneva Conventions by simply not understanding what the states-party understood "each Party" to mean in Common Article Three, as this meme circulates through American legal circles, are very worrisome.

When Justice Stevens and Justice Alito discuss what a "regularly constituted court" means for purposes of Common Article Three, it matters enormously to understand that the standard is not simply what would obtain for governments, but what guerrilla fighters and insurgents could reasonably be expected to do. There is one standard applicable to all parties to the conflict, governmental and insurgent, and if you are describing the standard of a regularly constituted court that requires counsel with degrees, etc., etc., the insurgents will always fall short. If the standard is a unitary one - the same for all parties to the conflict - then the applicable standard of a tribunal under Common Article Three will be a whole lot more informal in nature than what any of the Justices in Hamdan, or the commentators weighing in, seem to think. ( I don't guarantee that the ICRC would agree with this interpretation of a single standard for ascertaining regularly constituted court, since the ICRC, in recent years, has taken to sometimes unilaterally reinterpreting standards upwards from what they were in the actual treaty negotiations - see, for example, its view of nuclear weapons under Additional Protocol I. But that Common Article Three applies to all parties to a conflict - yes.)