Monday, July 24, 2006

J's comments on my discussion of Hamdan

A reader, J (whom I take to be a professor, but I haven't used his name as he didn't post this as a comment, but sent it as an email to me), sends the following comment below. My thanks, it is very thoughtful and a useful contribution. I wanted to comment just on one small bit of it. J says, "of course the ICRC would agree with your interpretation, as the principle of equality of obligations and rights is also fundamental to non-international armed conflict."

J is referring to my comment that I did not want to assume that the ICRC would be committed to the view that the duties imposed by IHL, in this case Common Article Three, would be identical as upon every party to the conflict (including, of course, state parties and non-state actors). I think that is right - I certainly hope that is right.

However, although I think the following is plainly wrong, it is not beyond my imagining that the ICRC - or perhaps an organization more creative with its lawyering, such as Human Rights Watch - might argue that although an obligation imposed under Common Article Three is identical for each party, the actual carrying out of that obligation depends upon the level of resources in fact available for each party. A party with greater resources must carry out the "same" obligation to a greater extent than a party with fewer resources.

Thus, for example, the language of Common Article Three speaks, as Hamdan purported to interpret (albeit not with a lot of expertise), of a "regularly constituted court." I pointed out that no one on the Court, majority or dissent, seemed aware that the obligations of Common Article Three apply with equal force to non-state actors who are parties to the conflict as well as to states-party to the Geneva Convention - this was regarded by many as the greatest achievement of Common Article Three, and the Court's seeming unawareness of this ... well, never mind. If, however, they apply equally to states and non state actors, it is clear - and Protocol I's Article 75 makes this crystal clear - that non state actors will not be able to hold "regularly constituted courts" that look very much like those of an organized state. Even a long term guerrilla force such as Columbia's FARC, let alone less long term and organized guerrilla forces, would not be able to hold criminal trials in anything like the way that many people seem to be understanding the requirements of "regularly constituted courts" as Hamdan seems to imagine.

If, however, one understands Common Article Three's requirements as the drafters did, and as Article 75 does, to be a much, much less rigorous standard than a US style criminal trial, even a US style court martial - a standard that even an irregular guerrilla force under responsible command could organize, even though it lacked, for example, counsel (and note, for example, that Article 75 does not require counsel) - then the Bush administration has far greater room under international law (I leave aside Hamdan on domestic law requirements) to shape the trial proceedings in ways that depart from standard US court martial procedures. From an international law standpoint, it need only comply with Article 75, which, although the US has not ratified Protocol I and I hope never does, is acknowledged properly by the US to be binding customary law.

I do not suppose the ICRC, Human Rights Watch, Human Rights First, Amnesty International, or many other human rights monitors would be happy with such an outcome. The easiest way to proceed as lawyers is to argue that although the standard in the abstract is the same for each party, in actual fact it means different things depending on what resources you can bring to bear. Hence what a state actually has to provide is greater than what a guerrilla force has to provide in the way of a "regularly constituted court."

As I say, I think this way of proceeding is not just unsustainable under the language of the Conventions, it also provides a very bad incentive structure that, as almost always with the interpretations of IHL given by human rights organizations, reduces the element of reciprocity between parties to a conflict that in fact underpin the commitment to IHL. But it is fully the way I expect to see human rights organizations argue, one of these days. I hope not the ICRC. But the ICRC tends to go along with what other organizations have said as legal interpretation, once enough soft-law venues have weighed in to give it what looks like, to an outside observer anyway, plausible cover. It's not a good practice, but it does seem to be a tendency of the ICRC more or less since the landmines campaign.

But my thanks to J for a stimulating email, especially since, as he says, he rarely agrees with the views on this blog.

From reader J:

I just read your blog on Hamdan, and would like to share the following comments, for what they are worth. [Quite a lot, actually.]

Of course the ICRC would agree with your interpretation, as the principle of equality of obligations and rights is also fundamental to non-international armed conflict. The problem arises at human rights law, but that's a whole other issue of debate.

The problem with Hamdan is that the Court gives no explanation as to why Common Article 3 should apply at all--If you look at the Commentaries to CA3, as well as the 2003 ICRC Report on IHL and Contemporary Armed Conflicts, you will see that the ICRC (correctly) would not apply CA3 to the vague concept of war on terror, as a cell based terrorist group does not have the command structure to be capable (notice the distinction here from 'willing') to impliment IHL, among other reasons. eg. threshold of conflict.

The only way IHL should apply to Guantanamo detainees is on a case by case basis to those (like Taliban fighters) who should be afforded PoW status as per GCIII, or others detained during the international armed conflict between US and Afghanistan who should be protected (if meeting nationality requirements) under GCIV--of course they can be prosecuted for taking part in hostilities.

I've read some of your blogs and don't often agree with you, but I do think you at least show an understanding of IHl, which is way more than most of the US commentators I read, including lawyers--so that is one area where we agree.

1 comment:

Anthony Dworkin said...

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.)