Sean Murphy's new paper on the Geneva Conventions and the war on terror

Particularly in light of the discussions over Opinio Juris in the last couple of weeks with John Bellinger, legal advisor to the State Department, guest blogging, with a number of guest respondents, including me - Sean's new paper on the application of the Geneva Conventions to the war on terror is especially illuminating. I found particularly interesting his discussion of the supposedly "seamless" Four Geneva Conventions, and the claim made frequently today, and very frequently in the comments to the Opinio Juris discussion, that if you flunk the Third Convention, you are protected by the Fourth. Sean gives the most direct textual refutation of that claim, in the texts of the Third and Fourth Conventions, Protocol I, and the Pictet and Sandoz commentaries. He also gives an illuminating discussion of the application of the Third Convention, Article 5 meaning of "doubt" in determining whether someone should be given a status hearing for POW status - in particular the question of whether a government is in a position to make that decision on its own, and whether that determination can be made on a group basis or must be made individual by individual. The paper will appear in the forthcoming George Washington University Law Review, Vol. 75 (2007), but the draft can be downloaded from SSRN, here. This is the abstract from SSRN:


Evolving Geneva Convention Paradigms in the 'War on Terrorism': Applying the Core Rules to the Release of Persons Deemed 'Unprivileged Combatants'

SEAN D. MURPHY
George Washington University - Law School

GWU Law School Public Law Research Paper No. 239
GWU Legal Studies Research Paper No. 239
George Washington Law Review, Vol. 75, 2007

Abstract: The purpose of this essay, written in late 2006, is to take stock of the current application of the Geneva Conventions in the global “war on terrorism,” including interpretations recently taken by the U.S. Supreme Court in the Hamdan case. The Geneva Conventions and the laws of war more generally comprise a sophisticated regulatory regime whose rules can and should be closely analyzed by lawyers. Yet, like all law, the inevitable imprecision in the rules presents opportunities for governments to exploit gray areas so as to augment governmental authority, and to avoid sensible interpretations that will protect individuals from overreaching governmental power. Such exploitation invariably severs the rules from their ethical foundation and loses sight of their underlying object and purpose.

The events of 9/11 and their aftermath revealed complicated scenarios that do not fit easily into the traditional paradigms of the laws of war, including the 1949 Geneva Conventions. Highly knowledgeable persons in the field have reached diametrically opposite conclusions about certain fundamental issues, such as whether the conflict with Al Qaeda constitutes an “armed conflict” within the meaning of the laws of war, whether it matters if the Taliban wore regular uniforms or operated within a regular command structure, and whether a person who fails to qualify as a prisoner of war under one convention must invariably then qualify as a protected civilian under another. Many of these controversies arise because the two dominant paradigms that operate within the Geneva Conventions - one concerning “international” armed conflict between two or more states, and the other concerning “non-international” (typically understood as internal) armed conflict between a state and non-state actors - do not fit the phenomenon of global terrorism, where the dominant paradigm concerns transnational armed conflict between state and non-state actors.

Yet from their earliest formation, the laws of war have recognized the problem of dealing with irregular forces and the problem of adapting the law to circumstances that change over time. For that reason, built into the 1949 Geneva Conventions and their additional protocols are the means for taking account of areas that are not addressed explicitly or in detail. Rather than trying to exploit such gray areas in the law, lawyers should seek to inject the dictates of humanity into them, in a manner that best reconciles the competing interests during armed conflict of both governments and persons who are at risk. As an example of how one might allow the Geneva Conventions to evolve in a sensible fashion, this essay discusses the rules that should be applied with respect to the termination of the captivity of unprivileged combatants, such as those held at Guantánamo Bay. While the environment for handling such detainees remains fluid, and the norms expressed by the laws of war on these points are far from certain, this essay suggests answers that are legally plausible and that appear consistent with sound policy choices. Similar efforts to fill in the gray areas for other aspects of the law of war as it relates to global terrorism should also be pursued.

My own interest these days is less the legal characterization of where things stand now than an assessment of where we should go from here; perhaps I will be doing a short book for the Hoover Institution on this question. What should counterterrorism look like in a new administration, whether Democrat or Republican? I have framed this as "counterterrorism after the war on terror." That is not because I am opposed to the war on terror or to thinking about it as a war - I do not mean this as some kind of 'September 10er', hoping that if you wish hard enough, bad things go away and you can get back to whatever it was you were doing in June 1914 or the twilight years of the 1930s. On the contrary, I have supported the Bush administration's effort to think of the struggle against terrorism as a war, to think strategically about it as a war, and to apply grand strategy rather than bandaids, to the struggle. Moreover, the war on terror is not, as has so often been wrongly asserted to the point of cliche, merely a metaphorical war - it is no more metaphorical than the Cold War was. Those who dismiss it as metaphor merely have trouble, it seems to me, understanding the difference between metaphor and strategy: in one sense, after all, all strategy is metaphor, but that does not make all strategy 'mere'. On the contrary, it is precisely strategy's metaphorical quality that makes it useful to seeing one's struggle in an analytic way.

That said, calling it a 'global war against terror' is reaching the end of its useful life, and the reason has to do very much with the fact that it has been imbued with the legal implications of war. The utility of understanding the war on terror strategically as a war, in the same broad, generations-long sense of the Cold War, seems to me as defensible as ever. The Cold War was usefully analyzed, for strategic purposes, as a war from many different directions of mobilization, some of which led to actual wars and conflicts, some of which led to other types of ideological, cultural, social, and economic efforts. But the Cold War was never legally conceived as one decades long "war" to which the laws of war applied - there were particular conflicts to which they did, such as Korea or Vietnam, but the legal paradigm was not invoked, for example, with regards to espionage, and lots of other things.

Calling this 'war' in the legal sense, therefore, in order to invoke the laws of war on a global basis, seems to me to put the cart before the horse. As a practical legal matter, there are two basic armed conflicts that rise to the level of the legal definition of armed conflict - Afghanistan and Iraq. Others might arise, obviously. But much of the other stuff does not meet that legal definition. And strategically, it makes little sense to suggest that those other activies - the Predator strike in Yemen, activities of material support for terrorism through financing and the like that might qualify under the Military Commissions Act of 2006, etc. - are actually war, either. There are many actions that should be undertaken, involving sometimes the use of force, that are not actually armed conflict. There are many other actions that do not involve the use of force, for that matter, which should also be undertaken as circumstances warrant - surveillance, spying, interference with terrorist financing mechanisms, etc. - that, of course, are not armed conflict, either.

Insisting that all this is part of a legal 'global war on terror', with all the legal implications that this implies, is not tenable under the laws of war and not particularly helpful from a strategic standpoint, either. The United States needs new law to govern these areas - new domestic law to govern areas of counterterrorism that are neither law enforcement nor armed conflict. I understand the reasons for reaching to the law of war - in order to invoke the commander in chief's full authority and discretion, to set aside what might otherwise be human rights claims in favor of the lex specialis of the law of war, etc. (One area that Sean might have considered in his article, judging by many of the comments in the Opinio Juris discussion, is the quite remarkable claim by the human rights community that the law of war is not lex specialis with respect to general human rights law, and that human rights law continues to apply even in circumstances of legal armed conflict.) Five years after 9-11, that way of going about things has run its course. My view is that the United States should legislate in these areas, and create new paradigms through new domestic law - the creation of a special counterterrorism court, for example, and the elaboration of standards for the use of force that is neither law enforcement nor armed conflict, as well as for detention and interrogation. I emphasize legislation - it has to be more than simply presidential discretion, but should create structures that will outlast any mere presidency, Democrat or Republican, as we did in the Cold War. The law of war should be taken out of it, and the military as well - the military should get out of the Guantanamo business, for example - except for what is, without elasticizing legal definitions, armed conflict.

I have written some about this in an article mostly urging that Congress needs to get involved in legislating counterterrorism, in Policy Review, here. I am also working on a couple of short articles setting out the main thesis of separating out the strategic use of war as a framing analysis from the legal fact of war in particular circumstances. I also talk about this more over at a post at Opinio Juris, here.