Geoff Corn commenting on relationship of CA2 and CA3

For those of you who follow the LOAC technicalities, Bobby Chesney at National Security Advisors put up a useful quick guide to the compromise detainee bill, and in the course of that discussion asked whether the narrowing language of the bill could be seen to put the US in violation of its GPW article 129 obligation to enact penal legislation re the conventions.

Geoff Corn responds in one of the comments that article 129 requires the condition of an international armed conflict, under CA2, not what Hamdan informed us that we have, under CA3.

This point, it seems to me (and maybe seems to Geoff), is both correct and has broader application. Viz., I think a lot of people out there, possibly including people who drafted this compromise legislation, assume that articles of the conventions generally apply without thinking that they only apply if you have a CA2 conflict. Such as article 129. Such as article 130. I do believe a lot of people - maybe even some of the Justices in Hamdan - assume that if you call it a CA3 conflict, you get CA3 plus a bunch of extra things. Things that in fact may only apply if it is an international armed conflict. Even things like the definition of a protected person. If it is not an international armed conflict, then you don't get to the definition of protected person in the convention generally. Put another way, CA3 is entirely self-contained, which is why it is correct to use the famous description "the convention-in-miniature." Which is to say, it is a sword that in some sense cuts both ways. It gives you some things, but cuts you off from others.

In addition, as Geoff says, the concept of grave breach is not one found in the text of CA3, and you can't work back to it from the grave breaches provisions of the broader convention. Yes, there are specific things stated in CA3, but they are not covered by the penal provisions of the conventions, including the extradite or prosecute provisions. Thus, when the compromise legislation talks about defining grave breaches, it is really (and confusingly) creating a domestic law concept that does not have a true international law homologue - essentially it is merely an analogue to how one might understand language in CA3. But it is not a true homologue, in the sense that Article 129 requires a domestic law enactment to cover precisely x, y, and z points. I would have preferred that the compromise language use language other than that of "grave" breach, because of the fact that "grave" breach is a concept arising solely, as Geoff says, out of articles dependent for their force upon CA2, not CA3.

Here is Geoff's comment to Bobby's post:

Is it actually possible to have a "grave" breach of common article 3? I don't think so, at least not in the legal sense. It therefore seems that modification to the WCA that reduces the scope of criminal liability for violations of common article 3 simply cannot implicate "prosecutre or extradite" obligations for grave breaches.

A grave breach requires the violation to be committed against a "person or property" protected by the Convention. Each Conventions defines who/what is "protected". These definitions always require one common element: international armed conflict pursuant to the meaning of common article 2. Perhaps it was simplistic, but when I used to teach the GC's at the JAG School I used to emphasize that you can't "reach" the articles defining who/what is "protected" without first passing through the conduit of common article 2. Common article 3 can't get you there, because common article 3 is not a conduit to application of any other articles of the Convention!

This was a key aspect of the Tadic decision by the ICTY. Part of that case included a determination that the allegations that Tadic committed "grave breaches" were invalid because it was impossible to commit a grave breach during a non-international armed conflict.

While connecting this term to violations of common article 3 is obviously intended to suggest that such violations fall into the "grave" and "simple" categories, it does not reflect the precision of the Conventions. And, while there are certainly plenty of reasons to object to the narrowing of WCA criminal liability for violations of common article 3, I don't think violation of Article 129 of the GPW is one of them.

I had a thought vaguely like this in an earlier post, here, discussing not detainee legislation, but Hamdan, but I had not thought it through and I don't think all of it is right - anyway, Geoff's comment tells me that I was headed inchoately in the right direction! This is what I wrote in the earlier post, a comment on Hamdan:

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."

And to that we might add the fact that CA3 applies equally to insurgents in a civil war as well as governments, there is a question as to what such terms in CA3 about "regularly constituted courts," which featured so large in the Hamdan opinion, mean if the standard is one that is, as a practical matter, is to be met by both government in a civil war as well as a struggling, irregular insurgency. If both are to meet the same standard, then what counts as a regularly constituted court is nothing as tony and glorious as the Hamdan majority seems to think it is. In fact, it is nothing less but nothing more than what PI, Art. 75 says it is - again, from my Hamdan post:

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.

This is one of the many reasons I believe the US would have done better to have acknowledged the Geneva Conventions and not fought it, back when it was the Gonzales White House Counsel's office. It would have led, I believe, to routine Article 5 hearings followed by a finding of unprivileged belligerency, the failure to secure GPW protections, detention, and finally hearings on unprivileged belligerency and associated crimes the minimal floor for which would be set by article 75 - all, that is, under an established framework of international law (set out more fully, here). I say more about the "unitary" standard in CA3 here, also here, and Anthony Dworkin of Crimes of War responds with a different view, here.

I would be very interested to get reactions from Bobby, Geoff, Anthony Dworkin, Mike Newton, and anyone else knowing something about LOAC who wanted to weigh in. It does seem to me that the way in which Hamdan, by making a finding that in fact the conflict is a CA3 one, nixes the CA2 route and all that depends upon it, has considerable relevance for the future for what rights in LOAC are thought to apply, at least insofar as American authorities are concerned.