Hamdan, the Geneva Conventions, and Common Article Three

(Update, September 17, 2006. I discuss Common Article Three and arguments in Congress over legislating the meaning of its terms, at this post, here, also here. In addition, I've made some changes below in the specific description of the Hamdan briefs, where I think I was unclear in part and just wrong about the US governments briefs regarding the concept of a war "not of an international character.")

(Update, Thursday, July 13, 2006: My thanks to Roger Alford for referencing this post over at Opinio Juris. There are many very interesting posts from widely diverging views there, well worth reading. I want to point readers to a subsequent post of mine, here, discussing my concerns that Hamdan and Hamdan commentators have been assuming, quite incorrectly, that Common Article Three imposes obligations solely on governments that are states-party to the Geneva Conventions - in fact, as that post notes, it imposes obligations, identical obligations, on all parties to a conflict.)

I've been away on a long family vacation without web access, so I have been catching up on many things, starting witht the Hamdan decision and today's press reports that the Bush administration has formally acknowledged application of the Geneva Conventions per the Hamdan decision. I am still digesting the Hamdan decision - more exactly, I am sorting my way through the mounds of commentary on the Hamdan decision that seem to have been produced within nanoseconds of the decision's issuance - and have only quickly read the Administration's pronouncement. So what follows is subject to revision. But I have a few immediate thoughts that do not seem to have surfaced in news stories on the Bush administration's announcement.

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Press accounts have breathlessly described how the application of Common Article Three means that the US must now apply the terms of the Geneva Conventions to all detainees in the war on terror. That is correct under Hamdan. Liberals, human rights activists, people generally opposed to the Bush administration war on terror appear generally to have taken the application of Common Article Three as a great victory, because it states that people taken in detention, etc., shall be "treated humanely," with blanket prohibitions on "mutilation, cruel treatment and torture" ... outrages on personal dignity, in particular humiliating and degrading treatment," etc.

However, it bears noting that the Hamdan court found that Common Article Three applies for the specific reason that it found the activities under question to be part of an "armed conflict not of an international character." It is that finding which invokes Common Article Three - it is an armed conflict, but one not of an international character, ocurring "in the territory of one of the High Contracting Parties." There are analytic and historical problems with the Court's reasoning here - historically, Common Article Three was intended to cover civil wars and internal armed conflicts, wars within the territory of a state, not international wars, and to provide a minimum - note minimum - level of humanity in how they were conducted. What the court has done (I borrow from Geoff Corn here) is a considerable doctrinal leap from the text and history of Common Article Three - it effectively says, if the conflict is not an Article 2 conflict (an international armed conflict), it will be governed at a minimum by the standards of Article 3. This skips over inconvenient language and history of Common Article Three - applying to civil wars taking place within a state's territory, not transnational terrorism, but as a policy matter (albeit not, in my view, something for the courts to decide and impose), the idea of a humanitarian minimum is a good idea and CA3 is a decent restatement of it.

Analytically questionable or not, the Hamdan decision applied Common Article Three, however, not because it made a policy decision that conflicts not covered by Article 2 would be covered by Article 3, but because it made a (dubious) factual characterization of the nature of the armed conflict - viz., that it is a war "not of an international character occurring in the territory of one of the High Contracting Parties." The finding - that it is a war "not of an international character" - has, however, other legal consequences under the Conventions that perhaps the Court considered, perhaps not. Certainly the press commentary does not seem to have considered it. Viz., if we are dealing with an armed conflict "not of an international character," then it is not an international armed conflict. And if it is not an international armed conflict, then (so far as I can tell on an initial read) nearly all of the rest of the Geneva Conventions do not apply to these detainees, because the rest of the Geneva Conventions apply on their terms only to international armed conflicts.

Look at I Geneva, article 2. The Convention applies to armed conflicts "between two or more High Contracting Parties." But the Court has said it is not an Article 2 conflict. Since, according to the Court, we are not dealing with an international armed conflicts on Article 2's terms, then (nearly) all the rest of the Conventions, save for the special provisions of Common Article Three (and a few other universal rules, such as the Martens Clause), are inapplicable here. They are all applicable, according to the text of the Conventions, only in the case of an Article 2, international armed conflict. Does this make any difference? Maybe the Court, all the various lawyers involved, and all the press people have long since absorbed this. But I sure don't have that impression reading the press reports of the last couple of weeks, including the Washington Post and New York Times today.

Consider, for example, all the endless wrangling over whether detainees are entitled to hearings under III Geneva, article 5, to determine whether or not they are entitled to POW status. How much ink has been spilled in that debate? But Article 5 is not brought into play by Common Article Three, which is limited on its own express terms to be the minimum that a party to a conflict "shall be bound to apply." On the contrary, even Article 5 and its much debated hearings only arise in the case of an international armed conflict. (There is indeed a standard, discussed at length below, of what someone is entitled to in terms of judicial procedure under Common Article Three; it is the customary law provision stated by Article 75 of Additional Protocol I; see below.)

Likewise, all the questions of the detailed treatment of detainees as POWs. How much ink has been spilled by arguments that all these detainees must be either POWs or civilians under IV Geneva - the position of the ICRC is that you must be one or the other, there cannot be a person without a status. The reply to that has always been, well, sure, an illegal combatant has a status: that of combatant who is not a civilian under IV Geneva by reason of having taken direct part in hostilities but who has acted as an illegal combatant, someone who has taken part in hostitilies but had no legal entitlement to do so. But that debate is rendered moot by the characterization of the conflict as "not of an international character," because all that any participants or civilian detainees are entitled to is found (with certain narrow additions such as the Martens Clause) in Common Article Three, not discussions over the definitions of civilians or POWs under the rest of the Conventions.

Common Article Three, in the long standing ICRC literature, has always been regarded as the bare minimum of humanity in war, nothing more - sometimes referred to as the "convention-in-miniature." Up until this point, no one I've known in the IHL field has ever thought of it as a substitute for the real protections of the Geneva Conventions. What, for example, does it mean with respect to military tribunals for detainees? As far as the Geneva Conventions are concerned, it does not mean that detainees are entitled to full POW style court martials - to the extent that Hamdan says they are, that is entirely because of US domestic law, not the effect of international law. What is an insurgent, for example, entitled to in the way of a hearing under Common Article Three?

The Stevens opinion in Hamdan tries to give a literal reading to the words of Common Article Three's language prohibiting the "passing of sentences and carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilized peoples." But this passage has a long history and meanings that are found in its history, which may or may not be reflected in the Webster's definitions of the terms. It was, after all, about preventing summary execution. No one ever imagined it to be about giving detainees in civil wars all the protections of a regular court - if for no other reason than that its terms apply to both government forces and insurgent forces. The insurgents are likewise supposed to provide a "regularly constituted court" to try offfenses such as spying - Common Article Three is not merely an obligation of the government in a civil war, but instead an obligation on all parties to the conflict, state and non-state.

But no one would imagine that courts of insurgents satisfying the requirements of Common Article Three would thereby have all the protections of fully constituted, fully functioning government courts in a peaceable state. One cannot read Justice Stevens' opinion and believe that he was thinking of a standard of civilized judicial guarantees applicable by both governments and rebels. On the contrary, he was thinking, surely, only of a standard drawn from what one might expect of fully formed governments - a much, much higher standard, but almost certainly not the one contemplated by Common Article Three, for the reason that such a standard would never be unitary and reciprocal as between insurgents and governments. Whereas the language of Common Article Three is unitary - nothing about it applies differently as between government forces and insurgent forces; all are treated simply as parties to the conflict with the same legal obligations.

The Stevens' opinion recognizes the limitations of the Webster's dictionary method when it acknowledtges briefly the existence of standards long understood to fill in the requirements of Common Article Three regarding trials, at Additional Protocol I, Article 75. It establishes minimum standards for hearings for such issues as spying, insurrection, and so on. True, the US has not ratified Protocol I - and should not, because of it greatly lowers the protections for civilians in favor of guerrilla combatants - but in general, the US appears to have accepted the protections of article 75 as a restatement of customary international law on hearings. What Justice Stevens says of Article 75 is as follows:

"Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford "all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase "regularly constituted court," this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government "regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled." Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int'l L. 319, 322 (2003). Among the rights set forth in Article 75 is the "right to be tried in [one's] presence." Protocol I, Art. 75(4)(e)."

As Justice Stevens correctly notes following this passage, certain features of the Bush administration's military tribunal arrangements would clearly violate Article 75 - e.g., that the accused by present and privy to the evidence against him. What Justice Stevens fails to note is that Article 75 does not require a great many other things for a regularly constituted proceeding acceptable under Common Article Three - in particular, Article 75 contains no requirement even of counsel for the accused. (This is not a strange irrationality - as discussed below, it is because it is intended to be a standard applicable to both government forces and insurgents, and it is intended to accommodate the difficulties insurgents might have in convening regular courts with counsel and such features of regular governmental courts. Added: The closest Article 75 comes to a requirement of counsel is (4)(a), providing "all necessary rights and means of defence," but carefully and, looking back over the negotiating history, avoiding affirmatively requiring counsel as such because of the concerns of trials convened and carried out in the field, whether by government forces or insurgents.)

If Article 75 is indeed the standard endorsed by the Court - the Stevens' opinion seems, on first reading, carefully ambiguous about this, taking what it likes but not mentioning things, such as no requirement of counsel, that it might not - the Bush administration should be reasonably happy. The Bush administration should promptly announce that it regards Article 75 as language expressing binding customary international law and the minimum required as a matter of international law to satisfy Common Article Three.

To recap that: If Article 75 is the minimum, what does Article 75 actually require in the way of procedural protections? Well, much less than the human rights community, the press, and critics of the Bush administration seem to believe is the bare minimum required by international law. Article 75 requires a hearing - recall that its most fundamental humanitarian purpose is to prevent summary execution of detainees accused of illegal combatancy, insurrection against a government, spying, etc. And among the things Article 75 does not require is ... counsel. Anyone who thinks that Common Article Three is license to demand something resembling a full US court martial or US civilian court trial had better read the details of Article 75. And, as few have observed, nothing the US has proposed in the way of tribunals comes close to the bare minimum actually prescribed by Article 75, although Justice Stevens is correct in saying that certain features of the proposed tribunals violate Article 75. But if Article 75 applies, then it ought to be both the minimum and maximum on its own terms as the requirements of international law.

What Common Article Three gives to detainees, present and future, is the promise of humane treatment. It is a minimum, and deliberately far below what is promised to protected persons under the full Geneva Conventions. It is quite misleading for press reports, for example, to refer to Hamdan as imposing the Geneva Conventions when what is imposed are default minimum standards of humanity where the Geneva Conventions as normally thought of do not apply. And what constitutes humane treatment, including the various specifics found in the text of Common Article Three, is open to considerable interpretation. For that reason, the ability of private parties to bring actions directly under the Geneva Conventions is a key question under Hamdan - and a key question that should be addressed by Congress.

So I think Hamdan has done much less than the buzz indicates - or perhaps this is an attempt by the activist community and the press to make a certain interpretation of Hamdan self-fulfilling prophecy. I don't know. But I do think that it raises the possibility of legal results in international humantarian law that the Court itself did not anticipate. Maybe it considered the fact that if Common Article Three applies, nearly all the rest of the Conventions do not - maybe it didn't.

I have a much broader, final policy concern to raise about all this.

One evolution in the law of war from the 1990s forward has been the diminution of differences between the legal treatment of international and non-international armed conflict. Yugoslavia, Rwanda, etc. - the trend has been to apply the standards of international armed conflict if it is an armed conflict at all. In general, I think this has been a very good thing. There are problems with it, to be sure (e.g., the practical inability of an insurgent group to follow all the specific rules of POW treatment), but in general, the trend to eliminate the distinction between international and non-international armed conflict has been a good thing. This has meant that Common Article Three has meant less as the international rules have been universalized.

The Hamdan court, however, has reinforced the distinction and made it once again very, very real. This is perhaps one reason why the Matthew Waxman faction within the Bush administration, pressing against the Addington faction on the question of detainee standards, made its stand very carefully on Common Article Three not as binding law, but as policy that the US would endorse. The battle has been partly one of executive discretion, but at another level one of actual standards for the treatment of detainees. If the Addington faction wanted no rules, the Waxman et al. faction wanted policy that followed a certain legal norm - Common Article Three requirements of humane treatment - but which would not apply it as a formal requirement of international law because, among other things, it would have the effect of widening, once again, the legal gap between standards of conduct in international and non-international armed conflicts. The Hamdan court, by asserting it as a matter of international law, has unfortunately hardened that distinction once again.

(However, this is all first draft stuff, thinking out loud, and I am open to persuasion that I have misanalyzed things here. I may change my mind about things I say here, as with anything else on this blog.)