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.