Congress, the President, and defining the terms in Common Article Three

The debate in Congress and with the President over legislation that would define, for purposes of US domestic law (including domestic criminal prosecution under war crimes law), the meaning of terms in the Geneva Conventions' Common Article Three includes accusations that such definitions mean the violation of Common Article Three, simply by definitional fiat. The treaty language says "white"; domestic law is amended to announce that the meaning of "white" for these purposes is "black," so goes the form of argument. Some of these concerns are raised by people with long experience of the Conventions, whether as military lawyers, human rights lawyers, government lawyers, etc.; some of them come from people who seem to have happened to read the text in some blog post or newspaper article in the last little while but are now seized with opinions about it.

The concern about definitional fiat is a real one. One might violate the plain language of Common Article Three by simply redefining it in domestic law in ways that eviscerate its terms. One can argue a lot over what does or does not do that. I am usually more impressed in such arguments by people who are able to situate the arguments within the actual history of non-international armed conflicts in which there have been concrete historical applications - or non-applications - of Common Article Three. I am correspondingly less impressed in such arguments by people who believe that, having merely read the words on paper, they somehow "know" what they mean for the specific legal task of applying them in non-international armed conflict.

As for principles of interpretation in international humanitarian law, well, that law is historically conditioned and situated; and those historical conditions are established in the law itself by evolving state practice. As Adam Roberts has written on the general meaning of IHL:

The laws of war are strange not only in their subject matter, which seems to many people a contradiction in terms, but also in their methodology. There is little tradition of disciplined and reasoned assessment of how the laws of war have operated in practice. Lawyers, academics, and diplomats have often been better at interpreting the precise legal meaning of existing accords, or at devising new law, than they have been at assessing the performance of existing accords or at generalizing about the circumstances in which they can or cannot work. In short, the study of law needs to be integrated with the study of history; if not, it is inadequate.


(Adam Roberts, "Land Warfare, From Hague to Nuremberg," in Michael Howard, George J. Andreopoulous, and Mark A. Shulman, The Laws of War: Constraints on Warfare in the Western World (Yale UP 1994), at 117.)

History, usage, practicality in application, how things have successfully worked or not worked in the past, changing circumstances of war, including the special facts of transnational terrorism - all this matters to the interpretation of Common Article Three. The United States is a primary actor in security matters, in war, in the world, and its state practice and opinio juris (including what Congress says and does in this very instance) on the question of the meaning of Common Article Three is a weighty component in the very determination of the international law meaning of Common Article Three's terms - quite apart from Congress's plenary authority to establish its meaning by statute for US domestic law purposes.

The mere idea that the words of Common Article Three are self-explanatory, and that they thereby require no interpretation, is nonsense. What is at issue is who shall start out the task of interpretation for legal purposes in the United States - the Congress or some judge sitting in a court. Anyone who says that Congress ought not to be giving, by passing a statute, its domestically authoritative interpretation of the words of Common Article Three is merely saying that the judiciary should be the first and indeed only ones to do it, instead. Because they will be interpreted, the moment they wind up being litigated. The moment that someone brings a civil case, or an authority initiates a prosecution against, for example, a US official for violation of Common Article Three, then of course a judge will have to interpret the meanings of those terms. (I am leaving aside here the argument over whether Congress can provide an authoritative “interpretation” or whether it simply acts by passing a statute having the same effect; the ‘last in time rule’ means it can reach the same result no matter what it is called.)

"Degrading treatment" - can anyone really think this term is sufficiently transparent on its face to determine criminal liability? Can anyone really think that, for purposes of individual liability, a term as vague as this does not require serious interpretation against some articulated standard? The question is who shall establish that standard in the first instance - Congress or a judge, operating against, well what? His or her subjective impressions, subjective impressions set against Webster's, set against what the ICRC or Amnesty International or Human Rights Watch or the EU tells it in an amicus filing - or instead what is passed as law by elected representatives charged under the Constitution with establishing the laws of the United States, and particularly, one might think, the laws of the United States that bear on individual guilt, innocence, and criminal liability?

The question, therefore, is whether, for purposes of US domestic litigation, civil and criminal, the Congress should be able, or indeed have an obligation, to define more concretely and precisely the meaning of terms, the violation of which may easily have serious civil or criminal consequences under US law. It is hard to see how, in a constitutional democracy, Congress is not able to define terms which, in domestic law, will carry significant legal consequences, or why that fact alone should suggest a "violation" of US treaty obligations under the Geneva Conventions. Indeed, it is hard for me to see how Congress does not have an affirmative obligation to do so, in order that the law can be plainly known and understood by those charged with enforcing it and those charged with abiding it. That's what legislatures do; that's what legislatures, having an obligation to the citizens whom they represent and who are expected to follow such laws on threat of punishment, are supposed to do. It is a crucial part of the rule of law.

It is not really analytically useful, therefore, to pose the question put by a reporter to President Bush on this subject last week – how would the US view, for example, North Korea (or was it Iran?) enacting its own interpretation of the Geneva Conventions, or some part thereof, and mistreating a US soldier on that basis, pointing to its own legislation? President Bush responded precisely correctly – viz., that it would be a good idea if North Korea were to adopt US legislation on this subject, and then follow it.

(One might add that it would also be a good idea if any of America's actual enemies in its current conflicts, not merely reporters' hypothetical enemies, were to follow the Geneva Conventions on pretty much any basis. Implicit in the reporter’s question is the remarkable but apparently broadly held assumption that “reciprocity” in the law of war is only important if it works against the US. That's why the reporter, in order to try and score a dubious point had to frame the question as one involving a hypothetical enemy. Because the obvious answer, if asked about, for example, the Taliban or Iraqi insurgents, is either that they would hold a US soldier illegally as a hostage in some fashion to try and bargain for something, or else they would behead him or her on the internet for the delectation of Al Jazeera's audience in the Muslim street, or both. But either way, the content of US legislation on the subject would not really have much to do with it. Said reporter would be laughed out of town anywhere but in today's mainstream media, if he or she dared ask that question about America's actual enemies today, which is why it is always framed as a hypothetical involving people who presumably would follow the Geneva Conventions to the letter but for America's wicked reinterpretation/rejection of them. Why is it that we always hypothesize an enemy that reciprocates our treatment of them - but then when it comes to actual war, somehow the hypothetical honorable enemy turns out to be an enemy who doesn't reciprocate, doesn't behave honorably, but nonetheless expects us to do it anyway? That being the case, shouldn't President Bush's impolitic response to this reporter have been - why are you asking me about hypotheticals when you can ask me about the real world? Don't we have real enemies, people fighting our soldiers at this moment, and isn't the proper question to ask what difference any of this makes to their behavior? Or don't you want to hear the answer - viz., none? That is not an argument that America should not have standards for its treatment of detainees, but it is to point out that chattering about setting our standards so that our soldiers will somehow receive "reciprocal" treatment from the enemy is simply a false premise and can only be made with a straight face when talking about pure hypotheticals.)

The fact that the language starts out as a treaty obliges Congress, as a matter of international law obligation, to see that its pronouncement, its statutory enactment, falls reasonably within the meaning of the treaty. The mere fact of defining, however, these vague treaty terms is not per se a violation of US or international law. It is, in any case, beyond the power of the courts to tell Congress that its statutory enactment is impermissible as a violation of international law; Congress can legislate as it likes and alter US obligations under treaties as it pleases under the last-in-time rule. The result might well be that Congress places the US in violation of its international law obligations, while yet standing beyond the competence of the courts to remedy.


The fact that other countries have different constitutional systems that take the national legislature out of the loop with respect to treaty interpretation and adjudication, or the fact that other countries do permit their courts to remedy legislative enactments held by their courts to be in violation of international law, is simply not relevant to the existing constitutional mechanisms of the United States, irrespective of whether one believes that a good or a bad thing.