Sunday, September 24, 2006

Bobby Chesney responding to question re CA3 and CA2 in Hamdan

Bobby Chesney over at National Security Advisors has a post responding to my previous post on Geoff Corn's analysis of Common Article Three, here. See the comments to the post as well. I'm rereading Hamdan, and will post more here once I've had a chance to think through Bobby's comment and Stevens' language. Thanks, Bobby - I think this is an undiscussed aspect of Hamdan, whatever folks conclude about CA3 and CA2 in it, that has been underappreciated in both Hamdan and the current detainee bill.

Also, while I'm thinking about it, please read Bobby's important post about the multiple conflicts conceptually underway from a LOAC standpoint - Al Qaeda, e.g., separate from the Taliban, to whom the administration applied CA2 analysis as a high contracting party (despite the fact that it had no UN seat, and was recognized by only Pakistan, Saudi Arabia, and Yemen, if I recall correctly, so there was actually a strong argument that it flunked the factual test of being a "government," but anyway). The differences matter, of course, because of differences of treatment under CA2 and CA3. Of course, falling under CA2 does not get you full POW status, because you might still flunk Article 4 tests and turn out to be an unprivileged belligerent. But the analysis turns very different corners depending. I'll try to have more to say, but I gotta go to bed.

Except one quick note - I was curious - concerned, more exactly, that the detainee bill list of substantive crimes has all the crimes that are predicates of unlawful belligerency - murder, rape, etc. But it does not make unlawful belligerency itself a crime to be tried and punished. More on this later - but I'd be interested in views on why it is not one of the crimes to be tried - I would have thought, first, that trying this as a separate crime is part of customary international law, and that failure to do so is a step backwards, as opinio juris and state practice. Second, it seems to me important as a policy to punish not just the bad stuff resulting from unlawful belligerency, but to underscore that in a world beset by terrorism - private armies, nonstate actors - unlawful belligerency as such will be punished. I don't really understand the rationale for leaving it out, and would welcome any thoughts.

I also want to strongly recommend Bobby's new paper on this subject - Hamdan and deference, on SSRN here. I'm about halfway through it and it is excellent. Required reading for anyone looking to get to the heart of the law of war, foreign affairs, and national security law issues in Hamdan.


Geoff Corn said...

Why is it not a defined offense? I suspect that this is simply an efficiency decision. It is likely that once the proponents of the commissions realized that offenses would be statutorily defined, and subject to trial by commission by statute, they decided it was easier to just criminalize the underlying conduct and not the status. Plus, I am not sure that there is total consensus that being an "unlawful belligerent" in the context of a non-international armed conflict is a distinct offense in violation of the laws and customs of war.

I have struggled with the "offense" of unlawful belligerency in the context of a non-international armed conflict. I have come to the point where I am just not ready to concede that this is indeed an international law "crime" in violation of the laws and customs of war.

I don't dispute that fighting as an unlawful belligerent is a settled violation of the laws and customs of war resulting in criminal liability in the context of an international armed conflict. However, it seems to me that this criminal liability creates a deterrent that reflects symmetry with the benefit of combatant immunity derived from fighting as a lawful belligerent in such a context. But because it is essentially impossible for a non-state actor to be a lawful belligerent in a non-international armed conflict, it seems to me the deterrent symmetry of the law is inapposite to such a context.

I realize that such a non-state actor can’t be a lawful belligerent in a non-international armed conflict. But I think all this means is that such an individual is incapable of asserting the privilege of combatant immunity that is derived from such a status. As a result, the non-state “warrior” is liable for any domestic law crime resulting from his conduct in battle. Any valid assertion of domestic jurisdiction could reach such an individual. But this does not necessarily mean that the individual has violated the laws and customs of war simply by participating in a non-international armed conflict.

I am not aware of any case involving a conviction for violating the laws and customs of war based on a charge of merely participating in a non-international armed conflict. The law of war violations alleged against non-state actors in such conflicts have been based not on mere participation, but on acts that violated specific law of war rules (like common article 3). In addition, such individuals have routinely been prosecuted for their actions that did not violate the laws and customs of war, but did violate domestic law. But again, subjecting such an individual to prosecution for violating domestic law is a result of the lack of combatant immunity, and not an indication the participation in the conflict was an independent war crime.

Perhaps I am overlooking precedent, but it seems to me that simply extending the “unlawful belligerent” precedents from the context of international armed conflict to non-international armed conflicts does not sufficiently validate this offense. I question whether lack of status as a lawful belligerent in a conflict where it is impossible to be a lawful belligerent is itself an offense in violation of international law, as opposed to just a status that prohibits an assertion of immunity from domestic criminal jurisdiction.

Benjamin Davis said...

On the CA3 and CA2 point, Stevens in Hamdan IS saying that at a minimun CA3 applies. Stevens did not resolve the CA2 issue. What I find significant about Hamdan is that the Geneva Convention framework is seen to apply - that is the fundamental point about the decision. The Administration has worked so hard to not have that structure apply. John Bellinger said (still!) as much on February 1at the conference (Great conference Ken!) when he talked strictly in terms of customary international law bases for the detentions. (Take that you "raw international law" types a la John McGinnis! Even this administration is now recognizing customary international law. And, ironically, it is to the detriment of treaty obligations!)

On the CA2 issue, I wrote about this three or so years ago in the Chinese Journal of International Law. You will remember William Taft IV's analysis that the Taliban were entitled to POW status. The point beyond that are the categories described outside of Article 4(a)(2) criteria. Was Saddam Hussein entitled to POW status even though he did not follow the Article 4(a)(2) criteria? Of course. Under GCIII the Article 4(a)(1) and 4(a)(3) and given the intermixing of the Al Qaeda and Taliban (Benjamin Wittes pointed this out as much in his "do over" presentation on February 1), POW status for those Al Qaeda and Taliban caught on the battlefield in Afghanistan or Iraq is clear.

When you move away from those zones of armed conflict (a la Boumedienne in Bosnia), you are looking at security detainees who are more entitled at a minimum to CA3 protections or the equivalent under human rights and customary international human rights law or customary international humanitarian law.

As to chopping up the conflict (slicing and dicing) to try to say this regime applies to this person and that regime applies to this other person - I think that is what we are able to do as armchair quarterbacks sitting way back. But, the Geneva Conventions at their heart are not just arid legal texts but are rather grappling with one of the most difficult aspects of human nature. And it is that quality of those conventions that is significant.

So I would beg folks to keep in mind this comment I heard from a GI who remembered being on the ground in Iraq and got an e-mail from the "rear echelons" saying "The Geneva Conventions do not apply." His IMMEDIATE response was "This is going to be a problem." Intuitive and accurate. That reaction of the person in harm's way encourages me to temper my brilliant youthful slicing and dicing of the law with a sense of the spirit and object and purpose of the law that is loathe to find people who fall through cracks of the Geneva scheme. Way too easy to open doors to torture - as we have seen.


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