Proportionality in jus in bello

(Update, Friday, July 28, 2006: Welcome Instapundit readers - the first link from Instapundit that was bad (my fault) is here, on proportionality and jus ad bellum. And here is a post on the meta theory of the just war, comparing Walzer and Catholic versions of just war theory.)

(Update, Friday, July 21, 2006: Welcome to readers from Opinio Juris, Hugh Hewitt, Steve Bainbridge, and a couple of other places that seem to have picked up this post. I've revised slightly the opening paragraph and made some stylistic changes in the rest of the introduction to make it an easier read; nothing changed in the body of the discussion. Readers may also be interested in my later post on the obligations of defenders under the laws of war not to commingle civilian and military objects, here, as well as my 2003 New York Times Magazine essay Who Owns the Rules of War, at SSRN, here or at the Crimes of War Project archive, here. My SSRN author page, with a selection of academic pieces on laws of war and just war theory, is here.)

(Update, Monday, July 24, 2006. Please take the time to read Professor Geoff Corn's thoughtful and important comment below in the comments section; I am reposting it as well as a new post on the blog. Professor Corn comes to law school teaching from a highly distinguished background as the Army JAG's chief law of war person - not to mention his extremely interesting posts as a guest blogger a few months back at Opinio Juris. His observation that "excessive," as distinguished from "disproportionate," is the actual language of Protocol I is a very important addition to the debate. (Corrected from earlier - I was brain dead, sorry!) I also want to thank Georgetown law professor Anthony Arend, who also heads the school's international law and politics institute, for his kind words about the proportionality discussion - his blog provides further analysis and links, here.)

(Update, Monday, July 24, 2006. Please also see the very interesting discussion of proportionality over at Opinio Juris, here by Kevin Heller and here by Roger Alford.)

***
A great deal of discussion is underway concerning proportionality in the Lebanon war, much of it, in my view, underinformed. Many writers seem unaware of the difference, for example, between proportionality as a concept in jus in bello and proportionality as a concept in jus ad bellum. Many more seem to think that jus in bello proportionality is a matter of making sure that civilian casualties are approximately equal on both sides. Others seem to think the jus in bellum proportionality means that war aims must be limited to restoring the status quo ante.

We now also have the UN High Commissioner for Human Rights, Louise Arbour, weighing in with threats of criminal liability for breaches of jus in bello proportionality.

I am in the middle of revising some things, and do not have time to address the issue specifically. I am, however, excerpting below passages from an expert declaration on laws of war issues I prepared in the last Agent Orange litigation that addresses basic issues on jus in bello proportionality, the difficulties of criminal liability for alleged breaches of proportionality duties, and what the Yugoslavia tribunal prosecutor's office said - under Louise Arbour herself, if I recall correctly, although she joined the Supreme Court of Canada in 1999, so perhaps not - when it was raised as an issue of potential NATO liability in the Kosovo bombing campaign.

What the Yugoslavia prosecutor's office thought of NATO - read US - liability in Kosovo is, in one sense, neither here nor there, as the US would not recognize that court's jurisdiction over it or its military, nor does it see the Yugoslavia tribunal's jurisprudence as anything authoritative or binding. But it is striking to read just how limited the Yugoslavia prosecutor's own office found the concept of proportionality back when it was potentially NATO in the dock.

(I should add one note with reference to the discussion below. One can find in the Yugoslavia court cases many instances of criminal liability for wanton and disproportionate devastation, involving, say, a Serb paramilitary unit deliberately trashing a village. Those cases arise under a concept of wantonness and depravity of destruction - wanton and depraved going to the issue of mental intent. That is not the issue of proportionality as such - proportionality as such is the situation where a commander, without any special or extra intent of wanton and depraved destruction, was nonetheless found liable under the laws of war for destruction because the court simply found it disproportionate as such.)

The full declaration from which this is drawn can be found on SSRN, here, and the reply declaration to the plaintiffs experts (Michael Reisman and I were experts for the defendant corporations, and independently reached essentially the the same conclusions on all these matters) can be found on SSRN, here.

If you are interested in at least partly contrary scholarly views, you might consult Notre Dame professor Mary Ellen O'Connell, here, UCLA professor Steven Bainbridge, here (actually on just war theory, but follow the various replies and counter-replies for some discussion of the positive law, including from Georgetown professor Anthony Arend at Professor Bainbridge's blog), and if you have Westlaw, you can get to the affidavit for the Agent Orange plaintiffs by University of Houston Law Center professor Jordan Paust (no link). For a defense of the jus in bello legality of Israel's actions, see this article by Gidon D. Remba, here; the article addresses not only the proportionality argument, but also the context of forces that deliberately site themselves among civilians and civilian objects.

(I re-numbered the paragraphs below to start with 1 ... also, the endnotes matter a great deal in this discussion.)

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1. The rule of proportionality and problems in its application. The fundamental customary law rule at issue in each of these scenarios is proportionality. This is how properly to weigh the requirements of military necessity – what might be called the “importance of winning”[1] – against collateral damage, particularly to civilians and civilian objects. This rule of proportionality is so ancient and deeply embedded in the laws of war that the Hague Regulations do not see the need to state the general proportionality rule as such. The US Army’s Law of Land Warfare, which generally follows the Hague Regulations, sets out the general rule that “loss of life and damage to property must not be out of proportion to the military advantage to be gained.”[2] This was the standard in force for US forces in the Vietnam War and is still the US military standard today.[3]

2. Although there is general agreement about the existence of the rule of proportionality, there is no similar agreement about how the concept should be applied. The 1999 Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, which considered allegations that NATO forces breached the proportionality rule in the Kosovo war, summarized the difficulties even under the law today:

“The main problem with the principle of proportionality is not whether or not it exists but what it means and how it is to be applied. It is relatively simple to state that there must be an acceptable relation between the legitimate destructive effect and undesirable collateral effects. … It is much easier to formulate the principle of proportionality in general terms than it is to apply it to a particular set of circumstances because the comparison is often between unlike quantities and values. One cannot easily assess the value of innocent human lives as opposed to capturing a particular military objective.”[4]

The proportionality calculation is therefore inherently open-ended, imprecise and subjective. Moreover, it is a calculation that must take place constantly up and down the chain of command, in strategic matters as well as tactical matters, in the general’s headquarters as well as in the mind of the junior officer on the move in the field.

3. By reason of this inherent subjectivity and imprecision, people with different backgrounds and in different circumstances can easily reach different but equally legitimate conclusions on exactly the same facts. As the Final Report notes, for example, it is “unlikely that a human rights lawyer and an experienced combat commander would assign the same relative values to military advantage and to injury to noncombatants. Further, it is unlikely that military commanders with different doctrinal backgrounds and differing degrees of combat experience or national military histories would always agree in close cases.”[5] Even from the standpoint of a reasonable military commander, commanders with the same training are likely to come to varying conclusions on the same facts. For this reason, the law of war has traditionally vested very great discretionary powers with commanders to make these determinations. A Department of Defense General Counsel letter correctly says that it is “universally recognized that the laws of war leave much to the discretion of the military commander.”[6] Such discretion is a constant of the laws of war.

4. Proportionality and criminal liability. Because the calculation of proportionality lies in the hands of military commanders, the question of proportionality is generally satisfied by those commanders making a genuine attempt to determine both sides of this proportionality calculation and to weigh them against each other. Once a good faith attempt has been made to weigh these risks and benefits, it is recognized that this judgment of proportionality should be respected, absent some showing of truly extraordinary disregard for undertaking proportionality calculations at all – that is, disregard so egregious that it would have been palpable and obvious to anyone that it crosses the line into intentional depravity.

5. The reason for this deference to the commander’s discretion is that the body of law at issue is, with respect to individual liability, entirely criminal. The standards, therefore, of intent and culpability are those of the criminal law. But unlike ordinary criminal law, these standards are applied in circumstances of war and peace where the stakes are enormous, involving both immense forces of destruction and enormous political consequences. States have been profoundly unwilling to turn otherwise honorable soldiers into mass murderers by the second guessing of a court after the fact; state practice has required, instead, obvious intentional depravity, an utter indifference even to making a calculation of proportionality.

6. How seriously international law takes the discretion of commanders and, therefore, how egregious such conduct would have to be in order to fall outside the scope of that discretion, is illustrated tangentially in the Nuremberg Hostage Case decision. As part of a larger case concerning reprisals against hostages, the German commander was also accused of scorched earth tactics so destructive as to amount to disproportionate devastation not justified by military necessity. Because the court found no element of depravity in the destruction – no evidence of utterly egregious indifference to the calculation of proportionality – the court found no war crime on the basis of a lack of proportionality:

“There is evidence in the record that there was no military necessity for this destruction and devastation. An examination of the facts in retrospect can well sustain this conclusion. But we are obliged to judge the situation as it appeared to the defendant at the time. If the facts were such as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal …

We are not called upon to determine whether urgent military necessity for the devastation and destruction in the province of Finmark actually existed. We are concerned with the question whether the defendant at the time of its occurrence acted within the limits of honest judgment on the basis of the conditions prevailing at the time . . . the defendant may have erred in the exercise of his judgment but he was guilty of no criminal act.”[7] (emphasis added)

7. The lesson of The Hostage Case, therefore, is that the court respected the judgment of the commander even in a case involving extreme scorched earth tactics, which involved devastation of an area approximately the size of Denmark and which left, according to the indictment, some 61,000 civilians starving and without shelter at the onset of winter in Scandinavia.[8] It was unwilling to substitute its own judgment so long as it appeared that an “honest” attempt, a good faith attempt, was undertaken in making that judgment. The court was not concerned to determine whether conditions of urgent military necessity “actually existed,” but only whether the commander concluded in good faith that they did. That condition satisfied, the court refused to substitute its own judgment.

8. The notion that proportionality decisions are generally protected as an exercise of discretion means, as noted above, that as a matter of international and military law, the issue of proportionality has been largely regarded as non-reviewable by courts, because it is not considered suitable for second-guessing by courts, international, military or otherwise. As Francoise Hampson, who is a member of the ICRC’s expert committee on customary international law, concludes:

“State practice recognizes that judgments about military necessity often require subjective evaluations with incomplete information on the battlefield and imperfect knowledge of where the failure to take action might lead. For this reason, great discretion has always been attached to commanders' judgments, especially those made under battlefield conditions. Rarely, if ever, is the judgment of a field commander in battle -- balancing military necessity and advantage -- subject to legal challenge, let alone criminal sanction.”[9]

Thus, while proportionality indeed exists as a matter of international law, it is generally not reviewable by courts, except in cases so egregious that they go far beyond what the Amended Complaint alleges, to circumstances constituting intentional depravity. Not even the horrific scorched earth tactics of The Hostage Case qualify, given the commander’s good faith judgment.

9. Applying this standard to the circumstances alleged in the Amended Complaint, and as reiterated in Operation Ranch Hand [the Vietnam War Agent Orange program under litigation], the extensive consultations and discussions by commanders of military benefits and expected civilian costs easily met, in my view, the international legal requirements for respecting commanders’ discretion. These discussions took place from the President down to local commanders. They involved extensive legal, diplomatic, and military review of both the military benefits and the possible consequences to noncombatants. The requirements of international law would have been met, in my view, with far less discussion; much of the discussion that took place was motivated by reasons of political prudence, rather than legal necessity, and the extent and depth of discussion went well beyond the calculations of proportionality that the law required.

10. State practice and the paucity of judicial authority on proportionality. The non-reviewability of proportionality calculations as a matter of international and military law means, as a consequence, that there is a paucity of judicial authority on the subject. This is not surprising. State practice, as noted in part II, can take the form of state action and state inaction. Thus, a lack of prosecutions for disproportionality itself provides evidence of customary international law on the subject.[10] I have followed this body of law for many years, discussing it repeatedly with military lawyers, human rights lawyers, and scholars, and I am not aware of any court martial or other legal case since the Second World War that directly turns on disproportionate devastation by a commander – meaning a case where the legal issue is disproportionality as a war crime as such.[11] This is despite the fact that proportionality figures at the very center of every commander’s legal responsibility under the law of war. Unsurprisingly, therefore, a leading scholar on proportionality has concluded:

“National and international judicial or arbitral decisions which might clarify the rule of proportionality and assist in determining its meaning within the context of [1977] Protocol I are relatively sparse, particularly if cases involving reprisals [such as the Hostages case] are disregarded. The rules of international law relating to combat have rarely been made the basis of war crime trial proceedings. For example, other than trials arising out of reprisal incidents, no such trials directly relevant to the proportionality issue are reported in the most comprehensive set of war crimes reports, the fifteen volume Law Reports of Trials of War Criminals published for the United Nations War Crimes Commission following the Second World War.”[12]

11. The closest that I am able to come to a post-Second World War judicial view on the matter is the aforementioned analysis offered by the Final Report, asked to respond to claims of disproportionate attack in the 1999 Kosovo war by NATO forces. The Final Report, however, not only refused to find actions that could be prosecuted, it refused even to recommend any action for investigation by the Prosecutor. In addition, the very fact that the ICTY prosecutor had even investigated the proportionality of the bombings elicited fierce criticism by various NATO states, outraged that questions of proportionality should have been subject to even this level of review.[13] As noted in part II, state practice can take the form of state action and state inaction. Thus, these strong reactions are legally relevant because they reflect a deeply held view by states that proportionality calculations lie within a commander’s discretion and are generally not reviewable except in absolutely egregious cases.

12. The foregoing is not to suggest, however, that because determinations of proportionality are generally not reviewable by courts after the fact means that there is nothing in place by which to inform and temper judgments of proportionality. Rather, state practice and international law have concluded that the best means of ensuring that the proper balance is struck between the requirements of military necessity and collateral damage is by the actions and training of military commanders taken before the fact. It is understood, in my experience, that as a matter of both policy and state practice, proportionality is not a matter that can be effectively policed post hoc by courts; it is inherently too much a matter of discretion. What matters, instead, is a deep emphasis on the training and professional formation of military officers in order to make proportionality calculations a serious and integral part of military action. Proportionality judgments should be incorporated as an inescapable step in drawing up the rules of engagement in advance of military action.[14] These judgments of proportionality can be incorporated into the planning of forms of attack and defense, into preparations for what weapons will be taken to the battlefield, into logistical requirements, into the placement and movement of troops, and the proportionate circumstances of their use planned as with every other facet of war-planning; those judgments of proportionality that must unfold as battle unfolds will be undertaken because they are already incorporated under the rules of engagement into commanders’ on-going responsibility. As the distinguished military historian Sir John Keegan has written,“‘the experience of land war in two world wars must raise a question as to whether formal legal codification is necessarily superior to notions of custom, honour, professional standards, and natural law’ in making for battlefield decencies. … There is no substitute for honour as a medium of enforcing decency on the battlefield, never has been and never will be.”[15]

13. Thus, as the paucity of cases addressing proportionality confirms, states believe that judgments of proportionality properly lie within a commander’s discretion and cannot be effectively policed ex post facto by courts. It would be novel, at the very least, for a court to enter an area that neither civilian nor military courts across many nations, over a long period of time, have thought appropriate to go, to make new international law in what is regarded as the essence of discretion.

Notes:

[1] The phrase is Michael Walzer’s and it captures an important, yet sometimes overlooked, fact about the moral structure undergirding the laws of war. Winning, Walzer says, is important, despite the fact that the law imposes rules on how winning may be achieved, and if you do not believe that it is important that your side win in war, then morally you cannot justify the violence and destruction entailed by fighting. See Michael Walzer, Just and Unjust Wars: A Moral Argument With Historical Illustrations 109-110 (1977).

[2] US Field Manual supra note 10, at 19, para. 41.

[3] 1977 Protocol I sets out a somewhat more elaborate standard which focuses directly on noncombatants; it prohibits attacks which “may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.” 1977 Protocol I, Art. 51(5)(b). This definition, in my view, has certain advantages of clarity and specificity in laying out a standard for acceptable collateral damage, at least with respect to civilians, and it has been widely accepted in the world. Although it informs my thinking, I have not used it directly here for two reasons. First, the United States has not ratified 1977 Protocol I, and therefore it is not bound by its formulations as a matter of treaty law. It has also objected to some articles as departing from existing customary international law. See Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Convention, 2 Am. U. J. Int'l L. & Pol'y 419, 424-27 (1987); see also Meron, supra note 16, 62-70. Second, the United States, among other countries, has also raised objections (in my view, correctly) to the wording, or at least to some interpretations, of this particular provision, viz., the phrase “concrete and direct.” The US objects to those terms being understood to mean advantages in the “tactical” situation prevailing at that moment only; the view of the United States seems to be that tactical situations can only be evaluated in relation to a larger strategic view. For a summation of states’ concerns on this matter in the drafting of 1977 Protocol I, see ICRC Commentary, supra note 77, Art. 57, at p. 685, paras. 2217-18.

[4] Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 1999, § 48, available at (hereinafter the “Final Report”). As will be discussed below, the US and other NATO allies objected strenuously even to the idea that a prosecutor could examine these charges and refused to supply the Committee with more than very general information in response to a letter requesting specific information concerning targeting. See infra, note 94.

[5] Id., § 50.

[6] First Letter from J.Fred Buzhardt, General Counsel of U.S. Department of Defense, to Senate Foreign Relations Committee Chairman J.W. Fulbright, 1971, reprinted in “United States: Department of Defense Position With Regard to Destruction of Crops Through Chemical Agents,” 10 I.L.M. 1300, 1303 (1971).

[7] United States of America v. Wilhelm List, et. al., “The Hostage Case”, Case No. 7, 11 Law Reports of Trials of War Criminals, 1296-1297 (1949)

[8] “Scorched earth” here risks understating the enormity of the devastation. The German army in Finland in 1944, faced with a separate peace between Finland and the Soviet Union, retreated to deeper defensive positions in Norway. Believing itself to be pursued by a much larger Soviet army, as part of its retreat, it ordered a complete evacuation and total destruction of an area in Norway approximately the size of Denmark. See Howard S. Levie, Terrorism in War: The Law of War Crimes 339-40 (1993). The devastation was described in the US indictment at Nuremberg of the German commanders:

“[D]efendant Rendulic … issued an order, to troops under his command and jurisdiction, for the complete destruction of all shelter and means of existence in, and the total evacuation of the entire civilian population of, the northern Norwegian province of Finnmark. During the months of October and November 1944, this order was effectively and ruthlessly carried out … evacuated residents were made to witness the burning of their homes and possessions and the destruction of churches, public buildings, food supplies, barns, livestock, bridges, transport facilities, and natural resources of an area in which they and their families had lived for generations. Relatives and friends were separated, many of the evacuees became ill from cold and disease, hundreds died from exposure or perished at sea in the small boats and fishing smacks used in the evacuation, while still others were summarily shot for refusing to leave their homeland; in all, the thoroughness and brutality of this evacuation left some 61,000 men, women, and children homeless, starving, and destitute.” (Count 2, para. 9(a), Indictment in The Hostage Case, (United States of America v. Wilhelm List et. al.),supra note 88, 11 Law Reports of Trials of War Criminals 770(1948).)

Thus, despite the extreme devastation created by the German commanders, the Nuremberg court nonetheless – and indeed in summary fashion – acquitted the German commanders on this charge.

[9] Francoise Hampson, Military Necessity, in Crimes of War, 251 (Roy Gutman and David Rieff gen. eds., Kenneth Anderson, legal ed., 1999). This conclusion is also supported by state practice, for example, the Austrian Military manual states that: “A direct military advantage is … anticipated if the commander has an honest and reasonable expectation that the attack will make a relevant and proportionate contribution to the attainment of the purposes of the overall operations. Deference must be paid to the judgments of responsible commanders, based on information available to them at the time, and taking into account the urgent and difficult circumstances under which such judgments must be made”; and the Canadian military manual states that: “A concrete and direct military advantage exists if the commander has an honest and reasonable expectation that the attack will make a relevant contribution to the success of the overall operation.” (emphasis added) See Knut Dörmann, Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, 165, 172-73 (2003) (citing both manuals and concluding that: “There is probably no doubt that a court will respect judgments that are made reasonably and in good faith on the basis of the requirements of international humanitarian law”).

[10] See e.g., Thirlway, supra note 16

[11] Even arguably the closest to a true proportionality case, The Hostage Case in fact was not centrally about proportionality of devastation; it was instead about the Second World War legal standard for reprisals against third party, innocent hostages for the activities of others engaged in resistance against the occupier; the proportionality of such reprisals was an important element of law under Second World War legal standards (all such reprisals against hostages are today prohibited by the 1949 Geneva Conventions). The allegation of disproportionate devastation – devastation of civilian property – was introduced tangentially and dismissed pretty much summarily. It is clear that a charge based on proportionality alone would not have been successful. See supra note 88, 89.

[12] Lieutenant Colonel William J. Fenrick, The Rule of Proportionality and Protocol I in Conventional Warfare, 98 Mil. L. Rev. 91, 112 (1982).

[13] The sharp reaction of the US and other states to the ICTY prosecutor’s action is an example of state reactions that are a form of state practice; thus, it is of legal, and not merely political, interest that the United States and others objected so strongly even to the formation of a committee to offer a report to the ICTY prosecutor. See, e.g., Jonathan D. Tepperman, Commentary; Embrace the Tribunal: Prosecuting War Criminals Is In Everyone’s Interests, Los Angeles Times, Jan. 18, 2000, at B-7 (op-ed) (ICTY Prosecutor del Ponte “announced that she was investigating complaints . . . into the conduct of NATO’s pilots . . . . No sooner had Del Ponte spoken than American officials fired back. The White House complained that ‘NATO undertook extraordinary efforts to minimize collateral damage’ and . . . ‘any inquiry into the conduct of its pilots would be completely unjustified’”); Rowan Scarborough, U.S. denounces U.N. probe of NATO bombings; Says inquiry is ‘unjustified’, Washington Times, Dec. 30, 1999, at A1 (“Former military officers also expressed shock that such an international investigation could result in indictments, saying bombing blunders against civilians at 20,000 feet are not a criminal matter.”) Not receiving cooperation from NATO, the Final Report relied on nongovernmental human rights monitors, submissions from the governments of the Federal Republic of Yugoslavia and the Russian Federation, academic submissions, and press reports for its factual claims. See Final Report, supra note 85 at part III, list of materials utilized.

[14] The International Committee of the Red Cross, in its training missions to militaries around the world to inculcate the laws of war, offers an example of what ante hoc training looks like. The ICRC Handbook on the Law of War for Armed Forces, for example, gives training lessons on the rule of proportionality. The Handbook restates the rule as saying that an “action is proportionate when it does not cause incidental civilian casualties and damage which is excessive in relation to the value of the expected result of the whole military operation.” The Handbook then seeks to operationalize this abstract principle by training military commanders in ways to incorporate it practically into military rules of engagement. So, for example, “guidance to subordinates,” it says with reference to weighing up the costs and benefits of military operations, “shall be given in rules of engagement.” Frederic de Mulinen, Handbook on the Law of War for Armed Forces 93 (ICRC 1987).

[15] John Keegan, If you won’t, we won’t, The Times Literary Supplement, Nov. 24, 1995(quoting Sir Adam Roberts).

A reader question re Hamdan and the Geneva Conventions

A reader, a student at Yale Law School, posts a very good question:

You write as follows:

“Press accounts have breathlessly described how the application of Common Article Three means that the US must now apply the terms of the Geneva Conventions to all detainees in the war on terror. That is correct under Hamdan.”

It seems to my untrained eye, however, that the Court’s ruling concerning Common Article 3 does not apply to all detainees in the War on Terror, but only to those engaged in armed conflict NOT of an international nature. This applies to al Qaeda, in other words, but not to Taliban detainees who, because of their own failure to comply with the laws of war, themselves fall short of POW status.

In other words, Hamdan appears to have the bizarre result of giving al Qaeda more protection than the Taliban, simply because al Qaeda is not a nation state (and hence falls under CA3), whereas the Taliban represents Afghanistan.

Am I wrong here?

Dear R,

Always happy to have a reader - but please bear in mind that when I call stuff on this blog first draft, I really, really mean it. I'm rethinking some of what I said about the Bush administration's Hamdan briefs now. People point out things on a regular basis that show that I either just missed something obvious, or they convince me that my argument was wrong.

In this case, I think we're both right. You are right to say that Hamdan on its own terms applies only to those engaged in armed conflict not of an international nature - roughly, Al Qaeda, not Taliban, although how in fact you distinguish is something of a mystery to me in many cases; just because we draw such distinctions doesn't mean that they do, and as a practical matter, I think it comes down to if you're an Afghan national, you're Taliban, and if you're foreign in Afghanistan, you''re Al Qaeda.

I'm right, too, however, in saying that the Geneva Conventions apply to everyone - NOT in the sense that everyone is entitled to be a POW or even that everyone (as a matter of international legal right rather than DOD policy) is entitled to CA3 protections. Instead I mean that as a threshold matter, everyone is entitled to have the Geneva Conventions apply to them at least long enough to determine whether they are a CA3 combatant, illegal or not, or simply an illegal combatant. When I say the Geneva Conventions apply to everyone, in other words, I mean merely for determination of status. That does not even necessarily mean a hearing under III Geneva - somewhere on my blog I talk about the literal language of III G Article 5, which literally says that a hearing is required only in case of doubt about status not, as nearly everyone has said, as a means to determine whether there is any doubt about status.

Does that give Al Qaeda fighters more rights than Taliban fighters - well, not in international law - they are both illegal combatants, and for all the same reasons, and what they are entitled to under international law of war, in my view although disputed by some, is a Protocol I, Article 75 hearing (which the US has accepted as customary law despite its nonacceptance of Protocol I), in either case.

Hope that helps. Feel free to be in touch and raise any questions you might have. You can tell that I don't always post when I'm busy and I often post on entirely irrelevant stuff. Best wishes,

KA

Cello, a Korean horror movie

Further to my post about cello music, you might check out the following trash-horror flick on DVD from Korea, Cello:

Tartan Films is set to release their next Asia Extreme DVD, Cello, on July 25th - so today they posted the trailer for the film on iFilm for you guys to check out. Read on for details on this year's Comic Con and Tartans involvment. Mi-ju, played by the beautiful Sung Hyun-Ah, is a brilliant cellist who craves peace and stability after surviving a car crash, which killed her best friend. Haunted by terrifying memories of the accident, she decides to forgo a professional career in music, in favor of teaching college students and her daughter how to play. Unfortunately, things begin to go terribly wrong. One of her students attacks her, her sister in-law becomes dangerously obsessed with her fiancée, and the new housekeeper is scaring her to death. Further, there is something very ominous and portentous about the music coming out of her daughter’s cello.

And a fabulous score of nearly all cello music ... how can you go wrong?

Electric cello with wah wah pedal

When I was out at the Anderson family reunion at my brother's place in St. Louis, I was surprised by a late birthday present from my two brothers, Richard and John - a digitech modeling guitar processor pedal to use with my electric cello and amp. So, electric cello plugged into pedal plugged into amp, gain up - and I really can sound like a screaming lead electric guitar. Much to the annoyance of wife and daughter.

What I don't have is any kind of recording capability - my "little" brother John (actually 35 years old and a tax attorney with Debevoise in London), guitarist, has a whole setup for both synthesizing all sorts of other tracks and then recording everything.

I have been working on learning for electric cello Carlos Santana's late 1960s La Samba Pa Ti. Hal Leonard puts out a great music book with note by every last note transcriptions of each part for certain albums, including some Santana. It is hard. You have to realize I am actually a very bad amateur cellist - passionate, but not very good.

Eric Posner in WSJ on Hamdan

Eric Posner writes today in the Wall Street Journal on the Hamdan decision. Eric is a law professor at the University of Chicago who has gradually brought his law and economics orientation to bear on problems of international law, including the law of war. The crux of his writing on the law of war is, unsurprisingly, basic game theory and what it says about the likely success or lack of success over time of treaties such as the Geneva Conventions. The core concept in this article is reciprocity; the basic point is that legal regimes that lack outside enforcement must depend upon reciprocity between the parties to make them work over the long term. If reciprocity is lacking, either one side to the other or each side to the other, then treaty regimes break down. The parties cannot see what they have to gain. Eric says that Common Article Three lacks reciprocal motivations - whether we obey Common Article Three or not, Al Qaeda will not. If that is the situation of wars supposedly governed by Common Article Three generally over time, then the legal provision will either be revised, formally or informally, or else simply fall into disuetude.

In general, I agree with the conclusions that Eric reaches regarding Common Article Three and the struggle against Al Qaeda. But I would add a couple of comments on the argument more broadly:

First, I do not think that it is historically the case that the reason why governments in internal conflicts have resisted application of Common Article Three was concern over a lack of reciprocal treatment by insurgent forces. It follows from the logic of Eric's game theory, but in historical fact, for the internal conflicts I have been able to think of - off-hand, to be sure - over the last thirty years, and certainly those I have been involved in monitoring, such as the 1980s wars in Central America, wars in the former Yugoslavia and Central Asia, lack of reciprocity was not the issue. In every case I am aware of, the concern of the government was entirely not to give reputational legitimacy to the guerrillas.

It did not matter how many meetings the ICRC or others held with governments telling them that jus in bello was different from jus ad bellum, that granting a certain international minimum level of treatment to those captured would not result in greater international legitimacy for the rebels - they did not believe those claims and, on balance, I think they were correct, often unfortunately so. The best outcomes occurred when governments, such as the Salvador government in the 1980s, agreed to treat prisoners as though Common Article Three applied without admitting that it actually did. Which, note, is where we were as a matter of policy before Hamdan - a policy of applying Common Article Three standards without actually agreeing that it applied.

Second, the lack of reciprocity in Common Article Three is as follows. On the one hand, the standard of conduct is unitary - it applies to any party to the conflict, whether state or insurgent. (This suggests, by the way, that the standard of what kind of court suffices for Common Article Three purposes is not necessarily one defined by what one expects of organized governments, but instead the far more informal standard of what one might also expect of insurgents and guerrillas - the Hamdan court accepted that the standard is one drawn from governments, because they seem not to have understood that Common Article Three applies to insurgents as well as governments. This is a significant point for Bush administration lawyers to understand in considering what a "regularly constituted court" means - what would it mean, for example, in the jungles of Columbia?) On the other hand, the obligations on each party, although on each party, are not reciprocal - see the ICRC 1949 Commentary on Common Article Three - and are an obligation of that party no matter what other parties do - there is no right of reprisal for violations by the other side.

Third, one should not assume that a standard of obligation, even though not truly supported by reciprocity, has no effect over the long term. The ICRC has always understood the support of "leading" states and "civilized nations" in pressing a standard of conduct - it understands, put another way, that the standards of international law of war must simultaneously be realistic as to what parties will do, in relation to military necessity and reciprocity, while still endeavoring to 'punch above their weight' in appealing to reputational interests and public opinion, and so on. One thing Eric might consider, in a future article, is explaining why it is that wars without quarter - fought as internal civil wars, for example, in Latin America during the 19th century, with many men slaughtered - gradually faded away generally in the 20th century. One can give a game theory explanation of interest for that, but in order to be convincing - to show that it was not the effect of a legal norm punching above its weight - it would have to deal with the history of the decline of acceptance of war without quarter as an acceptable method of war.

Those are really broader, more theoretical considerations on reciprocity, game theory, and reputational interest in international relations and legal theory. As regards the specific views Eric has on Common Article Three, I find them overall persuasive.



Exerpts:

***
Apply the Golden Rule to al Qaeda?

By ERIC POSNER
July 15, 2006; Page A9
Wall Street Journal

When the Bush administration claimed in 2002 that Common Article 3 of the Geneva Conventions did not apply to al Qaeda, it advanced a legal argument -- but the decision was really based on a common-sense policy judgment. The U.S. obtained no advantage from obeying Article 3, because al Qaeda itself clearly had no interest in complying either. However we treat them, they will torture and behead our soldiers.

The legal argument was that the very terms of Common Article 3, which bans various kinds of ambiguously defined inhumane treatment, apply only to conflicts "not of an international character," and the conflict with al Qaeda was international. Since the Supreme Court rejected this argument in Hamdan, the Bush administration now says that, as a matter of law, common Article 3 does apply to al Qaeda.

This means two things. First, the administration must use "regularly constituted" courts to try detainees for war crimes. Second, the conditions of detention as well as interrogation procedures must not be "inhumane," "humiliating" or "degrading."

If these terms are interpreted broadly, then the military commissions must be modified so that detainees have greater procedural protections, and the conditions of detention and (if media accounts of harsh treatment are correct) interrogation procedures must be improved. The Bush administration now argues that these terms should be interpreted narrowly, and thus that existing practices do not violate them. To validate this narrow interpretation, the administration must persuade Congress to explicitly approve the military commissions that the president previously established by executive order. (It is debatable whether it needs Congress to validate the interrogation procedures and conditions of detention.) It is therefore too soon to tell whether Common Article 3 will ultimately produce large changes (or no changes) in its counterterrorism strategy.

Given the ambiguity of Common Article 3, it is hard to fault the Bush administration's strategy. States always interpret treaties narrowly when broad interpretations do not serve their interests, and the Bush administration's interpretation of the ambiguous substantive language, like its earlier interpretation of the "not of an international character" language, is at least reasonable.

It also appears that the administration has not abandoned the original policy judgment against applying Common Article 3 to al Qaeda fighters (though it has not advanced that argument publicly). That judgment was sound, and as Congress decides what to do next, it should consider it seriously.

Treaties are flexible instruments that change with the times or lose their value. States enter into treaties when doing so is in their interests; and they withdraw from them, violate them, or interpret them out of existence when the pacts no longer serve their interests. The Geneva Conventions fit this pattern. The main portions of these conventions apply to regular interstate wars, where belligerents obtain advantages by exercising mutual restraint even as they try to defeat each other. States comply with the Geneva Conventions, when they do, because in return for their humane treatment of enemy soldiers and civilians, the enemy responds in kind. When reciprocity is absent, states often break the rules. A good example is the law of occupation, which victors skirt because the defeated enemy has no means to retaliate.

Until Hamdan, Common Article 3 was thought to apply chiefly to internal conflicts such as civil wars and insurgencies. But governments quickly realized that it did not stop insurgents from committing atrocities against soldiers and civilians, and so there was no advantage for the government in using self-restraint against these insurgents. For these reasons, governments quickly found ways to avoid admitting that Common Article 3 applied to their internal conflicts.
Other states mostly did not object because their soldiers and civilians were not involved. The failure of Common Article 3 led to the negotiation of additional Geneva Protocols in the 1970s. The protocols contained stronger rules -- rules which had no visible effect on the conduct of parties in insurgent conflicts, and which the U.S. never ratified.

Common Article 3 failed because of the absence of reciprocal interest on the part of relevant parties to comply with its provisions. This type of reciprocity is also absent in the conflict with al Qaeda. There is no reason to think that if the Bush administration improves or worsens the conditions of detention it will have any effect on al Qaeda's behavior toward captured Americans or other westerners. Nor is there any reason to think that al Qaeda will appreciate the improvement in military commissions commanded by the Supreme Court, and reciprocate by offering "regularly constituted" trials to its victims before beheading them as enemies of Islam.

Many people say: That's the point. The U.S., by complying with the Geneva Conventions, shows the world that it is civilized, while al Qaeda is barbaric. But this claim begs the question whether Common Article 3 contains the right rules for a civilized nation to follow while defending itself against foreign terrorists that have the power -- but not the territorial rootedness and vulnerability -- of a state. States did not draft Common Article 3 in 1947 with al Qaeda in mind.

Perhaps fairer commissions and more humane detentions would be good policy. Perhaps, if the U.S. liberalized its policies, its allies would be more cooperative, captured U.S. soldiers would be treated better in future wars by future enemies who remember how we treated al Qaeda detainees, the Muslim world would hate us less, and detainees trained to expect atrocity at the hands of American troops, touched by kind treatment, would be more willing to betray comrades by revealing their whereabouts to American interrogators. Any of these claims, if true, would provide grounds for a less aggressive war on terror strategy than the U.S. currently uses. But Common Article 3, ignored by most states and particularly by al Qaeda, does not.

Mr. Posner, a professor of law at the University of Chicago, is coauthor of "The Limits of International Law" (Oxford University Press, 2005).

Jeremy Rabkin on Hamdan

Here, from the Weekly Standard, is Jeremy Rabkin's commentary on the Hamdan decision. I agree fundamentally with Jeremy's conclusion that a defensible decision can still be a mistake.

***
Not As Bad As You Think
The Court hasn't crippled the war on terror.

by Jeremy Rabkin

07/17/2006, Volume 011, Issue 41
Weekly Standard


IT IS NOT WISE to place yourself between a Stinger missile and its target. So, normally, I wouldn't dare stand in the way when the great Mark Steyn goes on the attack. But, like a lot of conservatives, he was so irritated by the Supreme Court's decision in Hamdan v. Rumsfeld that he fired a bit wildly in a recent column.

It is not true that the Court's ruling, invoking a provision of the Geneva Convention on prisoners of war, gives terrorists "all the benefits with none of the obligations" set down in the convention. It's not even true that to reach the result it did, the Court had to "stand the Conventions on their head" and "give words the precise opposite of their plain meaning and intent."

And it's certainly not true that the ruling has thrown a great legal obstacle in the general path of Bush administration policy. But a defensible ruling can still be a mistake, as I think this one was.
The 1949 Geneva Convention offers protections for prisoners of war who satisfy certain conditions. According to Article 4, only those prisoners qualify who, before their capture, were accountable to a formal command structure, wore some sort of identifying uniform or insignia, carried arms openly, and respected the laws of war in their own military operations. For these prisoners, the convention then sets out a very detailed set of rights and protections, taking nearly 150 articles to enumerate them all. One purpose is to restrain captors from trying to squeeze information out of prisoners by granting or withholding such comforts as tobacco rations, mail privileges, and recreation facilities.

At the outset, however, Article 3 stipulates that in "case of armed conflict not of an international character," states that adhere to the con vention are still bound to respect certain "minimum . . . provisions." These include prohibitions on the "murder" and "mutilation" of prisoners, on "outrages upon [their] personal dignity," and on "the passing of sentences . . . without previous judgment pronounced by a regularly constituted court."

It was not at all a stretch for the Supreme Court to conclude that these protections should apply to al Qaeda suspects at Guantánamo. Since al Qaeda is not a state or nation, the conflict in which they were captured was very reasonably characterized as "not of an international character." Anyway, the United States has never claimed a right to inflict "murder" and "mutilation" on Gitmo detainees--though it does want the chance to grant and withhold certain amenities to pump prisoners for more information than "name, rank and date of birth," which is all that lawful POWs are required to provide.

The catch is in the interpretation. Who gets to decide the precise implications of Article 3? The issue in Hamdan was the construction of the vaguely worded prohibition against imposing sentences on prisoners without "affording all the judicial guarantees which are recognized as indispensable by civilized peoples." The Pentagon had proposed somewhat streamlined procedures for the trial of suspects at Guantánamo by special military commissions. Did this approach violate the requirements of Article 3?

Justices Stevens, Souter, Ginsburg and Breyer objected to a number of procedures for the commissions, including provisions allowing commission members to consider evidence not available to the accused. Justice Kennedy, while declining to address this question and a few others, agreed with the Court's four liberals that the design of the commissions departed too much from the structure of those used in trials of American servicemen, so they could not be considered "regularly constituted" in the sense of the Geneva prohibition in Article 3.

The majority did take some pains to limit the reach of its holding. The Hamdan ruling only considered procedures for "passing sentences"--not for determining whether a suspect could be detained, an issue not addressed by Article 3. The Court also left open the possibility that detainees could be tried under somewhat distinctive procedures. Article 102 of the Geneva Convention does demand that prisoners be tried by precisely the same procedures as members of the armed forces of the "detaining power." But the Court did not recognize al Qaeda operatives (such as Salim Ahmed Hamdan) as eligible for the full range of Geneva protections.

Most cautiously of all, the Court rested its whole ruling on statutory construction of existing federal law. It justified an appeal to Geneva standards on the ground that Congress, in authorizing military commissions consistent with "the laws of war," intended to incorporate Geneva standards into the requirements of the Uniform Code of Military Justice. In a separate opinion, Justice Breyer emphasized that the Court's ruling required nothing more than further clarification from Congress of proper standards for future trials.

No justice claimed that Congress was bound to authorize procedures consistent with the Court's interpretation of Geneva standards. No justice claimed Congress was even bound to accommodate anyone else's understanding of Geneva standards. It has been very firmly established, in precedents stretching back to the mid-nineteenth century, that a treaty has no higher status in American law than an act of legislation. A new statute can therefore override a treaty--at least in setting the law that guides U.S. courts--just as it can override an earlier statute.

Still, in reaching as far as it did, the majority passed up half a dozen quite plausible and reasonable grounds for staying out of this dispute. The three dissenters--Scalia, Thomas, and Alito--provided a sort of relay of refutations, with each writing separately (while also endorsing the dissents of the others) to argue a different set of reasons the Court should have denied jurisdiction or accepted the substantive claims of the Bush administration in this dispute. Chief Justice Roberts did not participate in the decision--but having earlier addressed the case as a judge on the D.C. Circuit, he had already endorsed most the arguments pressed by the dissenters.

No one who reads these opinions with an open mind can fail to see that the dissenters raise a number of very strong legal arguments. Reasonable observers may differ on how well the Court's liberals parried the dissenters' arguments with competing precedents and interpretations. One fact remains, however. The majority could cite no clear precedent for courts' intervening in wartime to overrule military decisions about the handling of prisoners.
When they did consider the merits, the dissenters looked to the actual American experience in war. Among other episodes, Justice Thomas's dissent reviewed the trial of President Lincoln's assassins by a military commission (with rather abbreviated due process), the trial of German saboteurs by a commission in Washington in 1942, and the trial of the Japanese commander Yam ashita by a commission in the Philippines in 1945 (both with more abbreviated process).

The majority, in parsing the implications of the Geneva safeguards, relied heavily on a commentary published by the International Committee of the Red Cross in the 1950s. The decision provided no information at all on what other nations actually do when dealing with terrorists or guerrillas. The majority was content to suppose that the "law and custom of war," or the standards of "civilized peoples" regarding military justice, can be authoritatively settled by Swiss lawyers with no more real military experience or responsibility than the famous Swiss pikemen who "guard" Vatican City.

The majority may have hoped to signal to Bush administration critics--particularly those in foreign countries--that the United States does respect international law. If one wants to take an optimistic view, one may hope the Court has actually offered some reassurance to these critics, without much inhibiting the substance of American war policy. But courts are not well positioned to conduct American foreign policy, much less balance diplomatic calculations against the stern imperatives of war.

Congress certainly should take up the Court's invitation to consider what procedures are most appropriate for trying terror suspects at Guantánamo. But it should also give thought to sending its own diplomatic signal to the Court. Congress could do a solid service by stipulating that U.S. courts do not have jurisdiction to interpret the Geneva Conventions. That was the Court's view after World War II and the position accepted by the D.C. Circuit panel (including John Roberts) when initially rejecting Hamdan's arguments last year.

Since the late 1980s, when the Senate first began to ratify international human rights conventions, it has always insisted on this reservation: The United States commits to the principles of the treaty, but not to their incorporation into U.S. domestic law. The reservation removes the treaties from domestic litigation. No one saw the need for such a disclaimer when the Senate ratified the Geneva Conventions in the mid-1950s. Now we see the need.
It's not necessary to damn the Court's liberals or rant about disloyalty. The Court's majority has asked Congress to clarify U.S. war policy in this area. The clarification should include the stipulation that war measures involving unlawful combatants shouldn't be determined by ordinary courts. When it comes to terrorists captured in foreign lands, our priority can't be litigation or even lawfare. We are waging war. And war is too important to be left to Supreme Court justices.

Jeremy Rabkin teaches international law at Cornell University and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).

Is the Israel-Hezbollah conflict an international armed conflict?

Roger Alford, over at Opinio Juris, asks whether the escalating conflict between Israel and Hezbollah is an international armed conflict. Another of Opinio Juris' contributors, Chris Borgen, addresses in the comments section the issue of attributing state responsibility to the state of Lebanon. That is essentially a question of jus ad bellum. I briefly here address the jus in bello question - under international humanitarian law - of whether the conflict is an international armed conflict within the meaning of IHL. My comments here don't have any particular axe to grind - this is just my blackletter law response.

The determination of what constitutes an armed conflict for purposes of international humanitarian law (I am using that term here, rather than law of war, because law of war can be used to denote both jus in bello and jus ad bellum issues, whereas here I refer specifically to jus in bello, the conduct of war) is a factual determination, established by the fact of fighting between parties that rises to a level legally constituted as armed conflict. Whether that level has been reached in any particular conflict is a question of facts-and-circumstances, and often disputed by the parties (usually in the case of a government denying that rebel activity rises to the level of an armed conflict) because of a view that admitting of an armed conflict gives legal rights to the other party. Although the ICRC and other war monitors typically try strenuously to deny that characterization of fighting as an armed conflict grants any political legitimacy or status beyond the activation of methods-of-fighting obligations under international humanitarian law, the perception of many parties is that such characterization does. In this case, however, no one would reasonably dispute that the level of fighting - with Israel's military fully engaged, and Hezbollah using rockets and drone aircraft, going on for days with significant casualties - meets the level of fighting to constitute an armed conflict.

The question then becomes, is there something about the nature of the parties that might preclude a party from being a "party to a conflict" in the meaning of IHL? Can a transnational terrorist organization, for example, such as Al Qaeda, be such a party to a conflict? What about Hezbollah? In the case of Al Qaeda, the Supreme Court in Hamdan appears to have assumed that in the case of a terrorist force such as Al Qaeda, its fightersare not only liable to be tried for war crimes, but also to be treated as illegal combatants for the systematic violation of the laws of war by the party itself - and hence not entitled to Third Geneva Convention protections as POWs. At least, the Hamdan court did not appear to challenge those baseline propositions.

The Hamdan majority found, however, that although Al Qaeda fighters could presumably be treated as illegal combatants, the United States was still obligated to treat its members in accordance with Common Article Three of the Geneva Conventions, which governs armed conflicts in the territory of a state-party with a non-state actor, typically a rebel group. The territory, in the case of Hamdan, was Afghanistan, not the United States, but literally within the language of the Common Article Three; the fighting was against a party, even one that fought in a manner that deprived it of legal combatant status, but still, a party, and hence covered as a party to a conflict within the language of Common Article Three. The fact that its methods were terrorist did not eliminate its status as a "party" within Common Article Three. The Hamdan opinions wander around a good deal more than this, but that reconstructs the basic and most sensible argument in favor of the application of Common Article Three.

The argument against finding that Common Article Three applies to Al Qaeda lies partly in the history of Common Article Three - it was drafted to apply to civil wars, internal typically but also those involving cross border conflicts between a government and rebels based across the border. It was not drafted, and not imagined by its framers, to apply to a genuinely transnational, non-territorially based group for whom any particular territory was merely opportunistic. This will seem slightly pointless to the pure lawyers merely parsing language, but the law of war frankly doesn't make much sense without an understanding of the practicalities. Common Article Three was not drafted to apply to all forms of violence, even political violence - the drafters had lengthy debates on how to exclude more minor violence that did not rise the some agreed level of armed conflict - attacks on police stations, for example. Nor did anyone believe that Common Article Three applied to purely criminal activities - transnational drug trade, for example.

One of the problems with Hamdan, perhaps, is that it does not seem on its own terms to say that anything rising to the level of systematic violence - the levels of violence in the drug trafficking trade along the Tijuana border, say - does not fall within Common Article Three. Political, nonpolitical - the Conventions are deliberatley silent as to motive. What under Hamdan obviously excludes such as large scale gang wars along the borders, entirely about control of the drug trade, and being fought by US miltary forces including National Guard units, from Common Article Three? Drug trafficking, obviously, is a domestic crime. Terrorism is a likewise a crime under domestic criminal laws, and if your whole combatancy is both illegal as to method and consists of "merely" sporadic, albeit horrific, violence, in what sense do you rise to be a "party to a conflict"? Why are you not simply terrorists - wherever you happen to be found?

That is a strong argument, I believe, with respect to Al Qaeda - except not so strong with respect to the war in Afghanistan. There, Al Qaeda took a stand, took a stand much more akin to what a party to a conflict does, in a particular place, against military forces. But let me leave that aside to return to Hezbollah.

In the case of Hezbollah, the determinination that it is a party to a conflict within the meaning of Common Article Three is actually much easier, because it fits much more classically the motivating idea of this 1949 innovation in the law of war - it is not a genuinely transnational group such as Al Qaeda. It is territorially based in a way that Al Qaeda is not. It is fairly easy to conclude that it is a party to a conflict in the minimal Common Article Three sense. What does that net members of Hezbollah captured by the Israelis? Editorializiing a little here, something less than many commentators on Hamdan seem to imagine it means. No one on any side can be summarily executed; Common Article Three provides a limited set of humanitarian guarantees.

(Note, although not applicable in this case of an armed conflict that goes crossborder, nothing in international law prevents a state from prosecuting captured insurgents who are its own citizens for treason, insurrection, rebellion, murder in the case of any killings done including those of government soldiers, etc. Common Article Three is not an amnesty and not a get out of jail free card for rebel forces. It simply says that rebels cannot be punished without some non-summary proceeding.)

This is another way of saying, therefore, that the Israel-Hezbollah conflict is not, on first pass, an international one, because Hezbollah, while a party to a conflict, is not a party to the Geneva Conventions. It is not a high contracting party, and cannot be one. Its armed conflict with Israel is therefore governed by Common Article Three - on both sides, how Israel must treat its fighters and how Hezbollah must treat Israel's. Note, however, that Common Article Three contemplates that it is to be treated as a temporary condition, with the aim that the parties, without, at least in theory, granting any political concessions, will agree to apply full or at least fuller Geneva Conventions protections bilaterally in the conflict. (This rarely happens, because parties see this as a further step toward legitimacy.)

Now, what could be argued that would complicate this picture? Well, if the actual state forces of Lebanon were to be involved in the fighting, the armed conflict between these two parties, Israel and Lebanon, would be an international armed conflict, with full Geneva Conventions applied. They are each high contracting parties, and in any case, as a matter of customary international law, all states - emphasize states - are bound by the 1949 Conventions. The general view is that when you have mixed parties - two states fighting, say, with some rebel group operating separately as a party - then you characterize the conflict with respect to each party. (Some have argued, although this has not been generally accepted, that such a war becomes internationalized as among all the actors once two states are involved.) As between the two state parties, full Geneva applies; as between a state party and a nonstate actor, Common Article Three applies. So the second pass at the question is to say that an armed conflict between Israel and Lebanon is international, but the conflict between Israel and Hezbollah - or, for that matter, if somehow it happened - between Lebanon and Hezbollah - would be Common Article Three.

But now the complication. In the case in which fighting groups, even though politically separate in some sense, become sufficiently intertwined in command and control in a practical, operational, factual sense, then it has been argued that they then take on the character of the force which has such command and control. Thus, for example, in the situation of Al Qaeda in Afghanistan, Amnesty International argued that its fighters had become sufficiently intertwined and mingled with Taleban (presumed by AI to constitute government forces) forces and commanded as government forces to "internationalize" the conflict and bring them all under full Geneva - a view rejected by the United States, certainly. One might, in the Al Qaeda in Afghanistan, have argued equally forcefully on the facts that in fact Taleban forces had been under essentially Al Qaeda control and that nominally government forces had become in effect privatized.

In any case, given Hezbollah's place in the Lebanese government, it is not implausible to argue that its forces are, in some sense, Lebanese government forces. That said, however, at least at this point, it seems wrong to say even though Hezbollah is a minority party in government, its forces in the field are under Lebanese government command and control. This would argue - very strongly, I would say at this point - for not treating Hezbollah forces as those of a state-party to the Geneva Conventions, entitled to full Geneva protections. It is a very big step, in my view, to get from Hezbollah militias to the forces of the state of Lebanon.

Thus, at this point in the unfolding of this latest mess in the Middle East, it seems to me a Common Article Three conflict, a non-international armed conflict, between Israel and Hezbollah.

ps (July 15, 2006). I should add one thing concerning "internationalized" armed conflicts. The standard I have mentioned above is one that I have drawn more or less from the ICRC - essentially who is making decisions, particularly decisions concerning committing war crimes, what I have called a command and control standard - if you are a state essentially running the insurgent group, then, on this view, the full Geneva Conventions are triggered, because the group whose decisions you control make them essentially you. You cannot claim that the state and the insurgent group it is sponsoring are separate for these jus in bello purposes. The International Court of Justice, and the Yugoslavia tribunal in the Tadic case, took a somewhat different approach to attributing responsibility to a state sufficient to trigger the full Geneva Conventions. The court in Tadic, for example, focused on whether the non-state actor was a 'de facto agent' of the state. Here is Professor Steven Ratner's useful non-technical description of the legal standards from the law of war training manual, Crimes of War, on "international and non-international armed conflicts" (the website, run by Anthony Dworkin, is a very useful place for discussion of all sorts of laws of war issues, here; I served as legal editor of the original 1999 book):

One such hard case, all too typical these days, is a civil war with foreign involvement or provocation, but without the foreign State's resort to the classic acts of war. What level of such involvement in a case like Bosnia or Zaire is enough to trigger the Geneva Conventions? International law offers no precise answers to this question. The International Court of Justice has held that a foreign State is responsible for the conduct of a faction in a civil war if (a) the faction is a de facto agent of the foreign State or (b) the foreign State otherwise orders it to commit certain acts. The UN's Yugoslavia Tribunal held in the Tadic case in 1997 that the de facto agent standard applied to trigger the Geneva Conventions; it went on to find that the Bosnian Serb army in that particular case was not a de facto agent of Serbia, that Serbia was thus not a party to the conflict, and that the conventions did not apply. The International Committee of the Red Cross Commentary to the Geneva Conventions suggests a lower standard, focusing on who had made the decision leading to the illegal acts. The issue remains unresolved.

That said about "internationalized" armed conflicts, the normal rule is you proceed party by party, each with respect to each other party to the conflict, to determine what law applies in that case - full Geneva or Common Article Three. In the Israel -Hezbollah - Lebanon case, in a strictly jus in bello sense, the sense of the standards described above, it does not appear to me at this point that the Lebanese government has command and control over Hezbollah that would make Hezbollah forces its own; hence the conflict is not internationalized as between Hezbollah and Israel. I emphasize that this analysis is strictly one of jus in bello, not jus ad bellum.

Hamdan and Common Article Three's obligations upon non-state actors

(Update, September 17, 2006. I have more to say, in light of the current debates in Congress about defining terms in Common Article Three, at this post here. Also this post.)

(This post is a follow-up to a broader discussion of Common Article Three and Hamdan, here. You might want to start with it if you are looking for an introduction to the debate.)

One of the concerns I have had reading the commentary that has emerged since Hamdan was issued is the tendency of American lawyers to assert views about international law of war based solely on their plain language readings of words that, in fact, are terms of art of long standing in treaties of long standing. An example is the Hamdan decision's recourse to Webster's dictionary rather than to the ICRC Commentaries that provide background to the intent of the parties creating the Geneva Conventions of 1949. More generally, lawyers very sophisticated in American law, including national security law and its particular jurisprudence in armed conflict from the Civil War on, do not necessarily have the same background and historical context when dealing with very old treaties such as the Geneva Conventions.

Common Article Three presents a special, and especially dangerous, instance of this lack of grounding. The Hamdan decision - whether Justice Stevens, for example, or Justice Alito in dissent - takes it for granted that the interpretation of the critical phrase "regularly constituted court" draws exclusively upon what that means for governments. Likewise Jeremy Rabkin, in a very fine, very thoughtful article on Hamdan in the Weekly Standard, here, assumes that it is a set of obligations solely upon governments - High Contracting Parties. ("Article 3 stipulates that in "case of armed conflict not of an international character," states that adhere to the con vention are still bound to respect certain "minimum . . . provisions." Emphasis added - my concern here is that it is not only states, but all parties to a conflict.) (This is a minor quibble with a very important, very well reasoned article - I agree firmly with Jeremy's conclusion in that article that Hamdan was a "defensible ruling" but that a defensible ruling "can still be a wrong one.")

It is easy to see how American lawyers and commentators would conclude that Common Article Three applies exclusively to State Parties to the Geneva Conventions. The text of Common Article Three refers to the "each Party to the conflict" or "Parties to the conflict." By capitalizing the "P," it would appear to refer to the definition of High Contracting Parties - i.e., states party to the Geneva Conventions. Non-state actors cannot become signatories to the conventions, and hence they are not "Parties" and Common Article Three does not apply to them - insurgents, rebels, etc.

Unfortunately, that conclusion is simply wrong as a matter of the history and universal understanding of the Geneva Conventions and Common Article Three. Look at the ICRC Commentary on the First Geneva Convention - a summary of the diplomatic discussions that took place, providing essential background to the treaty, under Common Article Three, here. It says, among other things, that:

' Obligations of the Parties '. -- The words "each Party" mark the great progress which the passage of a few years has sufficed to bring about in international law. For until recently it would have been considered impossible in law for an international Convention to bind a non-signatory Party -- a Party, moreover, which was not yet in existence and which was not even required to represent a legal entity capable of undertaking international obligations.Each of the Parties will thus be required to apply Article 3 by the mere fact of that Party's existence and of the existence of an armed conflict between it and the other Party. The obligation is absolute for each of the Parties, and independent of the obligation on the other Party.

The drafters of the 1949 Geneva Conventions understood Common Article Three to oblige non-state parties to a conflict who are not parties to the treaty. The "each" was understood to apply to insurgents as well as governments. It has always been understood that way - ask the ICRC if you don't believe me. The obligations for states and insurgents under Common Article Three are identical. It is one of the few places in international law where treaty law directly obliges non-state actors.

Now, regular readers of this blog, if there are any, understand that I am not a huge fan of international law, at least under the liberal internationalist view of it. I also have considerable problems occasionally with the ICRC's views. But even a hardened international law skeptic like myself is nonetheless greatly disturbed by the cavalier way in which an absolutely fundamental point of legal obligation is ignored in the interpretation of international law in the United States, largely through ignorance, so far as I can tell, of whence it came historically. The risks for reducing the level of protection to civilians from what was achieved in the 1949 Geneva Conventions by simply not understanding what the states-party understood "each Party" to mean in Common Article Three, as this meme circulates through American legal circles, are very worrisome.

When Justice Stevens and Justice Alito discuss what a "regularly constituted court" means for purposes of Common Article Three, it matters enormously to understand that the standard is not simply what would obtain for governments, but what guerrilla fighters and insurgents could reasonably be expected to do. There is one standard applicable to all parties to the conflict, governmental and insurgent, and if you are describing the standard of a regularly constituted court that requires counsel with degrees, etc., etc., the insurgents will always fall short. If the standard is a unitary one - the same for all parties to the conflict - then the applicable standard of a tribunal under Common Article Three will be a whole lot more informal in nature than what any of the Justices in Hamdan, or the commentators weighing in, seem to think. ( I don't guarantee that the ICRC would agree with this interpretation of a single standard for ascertaining regularly constituted court, since the ICRC, in recent years, has taken to sometimes unilaterally reinterpreting standards upwards from what they were in the actual treaty negotiations - see, for example, its view of nuclear weapons under Additional Protocol I. But that Common Article Three applies to all parties to a conflict - yes.)

Justice Kennedy's reference to the ICRC customary international law study in Hamdan

A small detail from the Hamdan case. I have posted in the past on the Customary International Humanitarian Law study commissioned by the ICRC, and I have also posted a very useful (and, I see looking at site statistics, much consulted) response to some of my comments by one of the study's two authors, Jean-Marie Henkaerts.

One comment I have made about the study is that although the US government has never endorsed the study's findings and certainly has strong disagreements with signficant parts of its conclusions and reasoning, I anticipate that it will be widely cited as an authoritative statement on customary international law in US courts. I was therefore interested to note, as a sidelight, that this practice has begun with Hamdan, in which Justice Kennedy cites the study for the meaning of judicial procedures under Common Article Three:

"Common Article 3's standard of a "regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples," ibid., supports, at the least, a uniformity principle similar to that codified in §836(b). The concept of a "regularly constituted court" providing "indispensable" judicial guarantees requires consideration of the system of justice under which the commission is established, though no doubt certain minimum standards are applicable. See ante, at 69-70; 1 Int'l Committee of the Red Cross, Customary International Humanitarian Law 355 (2005) (explaining that courts are "regularly constituted" under Common Article 3 if they are "established and organised in accordance with the laws and procedures already in force in a country")." (emphasis added)

I have no quarrel with the substance of the view cited - my concern is that the study, precisely because it is extremely well written and well organized, provides judges with a handbook that appears to carry the same authority as the classic Restatements. It is no aspersion on the study to note, however, that this is not the same as having been accepted by the US government as authoritative. I do not think Justice Kennedy has done well by citing, even for an innocuous proposition, a study that, for one thing, is not, as his citation form suggests, precisely the views of the ICRC as such (the preface specifically says it is an academic study under individual authoriship) and, for another, has not been accepted by the United States as an authoritative expression. Of course he is free to cite it - but he should note the limitations thereof.

Look for the study to become the Alien Tort Statute plaintiff's new best friend.

Hamdan, the Geneva Conventions, and Common Article Three

(Update, September 17, 2006. I discuss Common Article Three and arguments in Congress over legislating the meaning of its terms, at this post, here, also here. In addition, I've made some changes below in the specific description of the Hamdan briefs, where I think I was unclear in part and just wrong about the US governments briefs regarding the concept of a war "not of an international character.")

(Update, Thursday, July 13, 2006: My thanks to Roger Alford for referencing this post over at Opinio Juris. There are many very interesting posts from widely diverging views there, well worth reading. I want to point readers to a subsequent post of mine, here, discussing my concerns that Hamdan and Hamdan commentators have been assuming, quite incorrectly, that Common Article Three imposes obligations solely on governments that are states-party to the Geneva Conventions - in fact, as that post notes, it imposes obligations, identical obligations, on all parties to a conflict.)

I've been away on a long family vacation without web access, so I have been catching up on many things, starting witht the Hamdan decision and today's press reports that the Bush administration has formally acknowledged application of the Geneva Conventions per the Hamdan decision. I am still digesting the Hamdan decision - more exactly, I am sorting my way through the mounds of commentary on the Hamdan decision that seem to have been produced within nanoseconds of the decision's issuance - and have only quickly read the Administration's pronouncement. So what follows is subject to revision. But I have a few immediate thoughts that do not seem to have surfaced in news stories on the Bush administration's announcement.

***

Press accounts have breathlessly described how the application of Common Article Three means that the US must now apply the terms of the Geneva Conventions to all detainees in the war on terror. That is correct under Hamdan. Liberals, human rights activists, people generally opposed to the Bush administration war on terror appear generally to have taken the application of Common Article Three as a great victory, because it states that people taken in detention, etc., shall be "treated humanely," with blanket prohibitions on "mutilation, cruel treatment and torture" ... outrages on personal dignity, in particular humiliating and degrading treatment," etc.

However, it bears noting that the Hamdan court found that Common Article Three applies for the specific reason that it found the activities under question to be part of an "armed conflict not of an international character." It is that finding which invokes Common Article Three - it is an armed conflict, but one not of an international character, ocurring "in the territory of one of the High Contracting Parties." There are analytic and historical problems with the Court's reasoning here - historically, Common Article Three was intended to cover civil wars and internal armed conflicts, wars within the territory of a state, not international wars, and to provide a minimum - note minimum - level of humanity in how they were conducted. What the court has done (I borrow from Geoff Corn here) is a considerable doctrinal leap from the text and history of Common Article Three - it effectively says, if the conflict is not an Article 2 conflict (an international armed conflict), it will be governed at a minimum by the standards of Article 3. This skips over inconvenient language and history of Common Article Three - applying to civil wars taking place within a state's territory, not transnational terrorism, but as a policy matter (albeit not, in my view, something for the courts to decide and impose), the idea of a humanitarian minimum is a good idea and CA3 is a decent restatement of it.

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." Up until this point, no one I've known in the IHL field has ever thought of it as a substitute for the real protections of the Geneva Conventions. What, for example, does it mean with respect to military tribunals for detainees? As far as the Geneva Conventions are concerned, it does not mean that detainees are entitled to full POW style court martials - to the extent that Hamdan says they are, that is entirely because of US domestic law, not the effect of international law. What is an insurgent, for example, entitled to in the way of a hearing under Common Article Three?

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.

The Stevens' opinion recognizes the limitations of the Webster's dictionary method when it acknowledtges briefly the existence of standards long understood to fill in the requirements of Common Article Three regarding trials, at Additional Protocol I, Article 75. It establishes minimum standards for hearings for such issues as spying, insurrection, and so on. True, the US has not ratified Protocol I - and should not, because of it greatly lowers the protections for civilians in favor of guerrilla combatants - but in general, the US appears to have accepted the protections of article 75 as a restatement of customary international law on hearings. What Justice Stevens says of Article 75 is as follows:

"Inextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal and whether they afford "all the judicial guarantees which are recognized as indispensable by civilized peoples." 6 U. S. T., at 3320 (Art. 3, ¶1(d)). Like the phrase "regularly constituted court," this phrase is not defined in the text of the Geneva Conventions. But it must be understood to incorporate at least the barest of those trial protections that have been recognized by customary international law. Many of these are described in Article 75 of Protocol I to the Geneva Conventions of 1949, adopted in 1977 (Protocol I). Although the United States declined to ratify Protocol I, its objections were not to Article 75 thereof. Indeed, it appears that the Government "regard[s] the provisions of Article 75 as an articulation of safeguards to which all persons in the hands of an enemy are entitled." Taft, The Law of Armed Conflict After 9/11: Some Salient Features, 28 Yale J. Int'l L. 319, 322 (2003). Among the rights set forth in Article 75 is the "right to be tried in [one's] presence." Protocol I, Art. 75(4)(e)."

As Justice Stevens correctly notes following this passage, certain features of the Bush administration's military tribunal arrangements would clearly violate Article 75 - e.g., that the accused by present and privy to the evidence against him. What Justice Stevens fails to note is that Article 75 does not require a great many other things for a regularly constituted proceeding acceptable under Common Article Three - in particular, Article 75 contains no requirement even of counsel for the accused. (This is not a strange irrationality - as discussed below, it is because it is intended to be a standard applicable to both government forces and insurgents, and it is intended to accommodate the difficulties insurgents might have in convening regular courts with counsel and such features of regular governmental courts. Added: The closest Article 75 comes to a requirement of counsel is (4)(a), providing "all necessary rights and means of defence," but carefully and, looking back over the negotiating history, avoiding affirmatively requiring counsel as such because of the concerns of trials convened and carried out in the field, whether by government forces or insurgents.)

If Article 75 is indeed the standard endorsed by the Court - the Stevens' opinion seems, on first reading, carefully ambiguous about this, taking what it likes but not mentioning things, such as no requirement of counsel, that it might not - the Bush administration should be reasonably happy. The Bush administration should promptly announce that it regards Article 75 as language expressing binding customary international law and the minimum required as a matter of international law to satisfy Common Article Three.

To recap that: If Article 75 is the minimum, what does Article 75 actually require in the way of procedural protections? Well, much less than the human rights community, the press, and critics of the Bush administration seem to believe is the bare minimum required by international law. Article 75 requires a hearing - recall that its most fundamental humanitarian purpose is to prevent summary execution of detainees accused of illegal combatancy, insurrection against a government, spying, etc. And among the things Article 75 does not require is ... counsel. Anyone who thinks that Common Article Three is license to demand something resembling a full US court martial or US civilian court trial had better read the details of Article 75. And, as few have observed, nothing the US has proposed in the way of tribunals comes close to the bare minimum actually prescribed by Article 75, although Justice Stevens is correct in saying that certain features of the proposed tribunals violate Article 75. But if Article 75 applies, then it ought to be both the minimum and maximum on its own terms as the requirements of international law.

What Common Article Three gives to detainees, present and future, is the promise of humane treatment. It is a minimum, and deliberately far below what is promised to protected persons under the full Geneva Conventions. It is quite misleading for press reports, for example, to refer to Hamdan as imposing the Geneva Conventions when what is imposed are default minimum standards of humanity where the Geneva Conventions as normally thought of do not apply. And what constitutes humane treatment, including the various specifics found in the text of Common Article Three, is open to considerable interpretation. For that reason, the ability of private parties to bring actions directly under the Geneva Conventions is a key question under Hamdan - and a key question that should be addressed by Congress.

So I think Hamdan has done much less than the buzz indicates - or perhaps this is an attempt by the activist community and the press to make a certain interpretation of Hamdan self-fulfilling prophecy. I don't know. But I do think that it raises the possibility of legal results in international humantarian law that the Court itself did not anticipate. Maybe it considered the fact that if Common Article Three applies, nearly all the rest of the Conventions do not - maybe it didn't.

I have a much broader, final policy concern to raise about all this.

One evolution in the law of war from the 1990s forward has been the diminution of differences between the legal treatment of international and non-international armed conflict. Yugoslavia, Rwanda, etc. - the trend has been to apply the standards of international armed conflict if it is an armed conflict at all. In general, I think this has been a very good thing. There are problems with it, to be sure (e.g., the practical inability of an insurgent group to follow all the specific rules of POW treatment), but in general, the trend to eliminate the distinction between international and non-international armed conflict has been a good thing. This has meant that Common Article Three has meant less as the international rules have been universalized.

The Hamdan court, however, has reinforced the distinction and made it once again very, very real. This is perhaps one reason why the Matthew Waxman faction within the Bush administration, pressing against the Addington faction on the question of detainee standards, made its stand very carefully on Common Article Three not as binding law, but as policy that the US would endorse. The battle has been partly one of executive discretion, but at another level one of actual standards for the treatment of detainees. If the Addington faction wanted no rules, the Waxman et al. faction wanted policy that followed a certain legal norm - Common Article Three requirements of humane treatment - but which would not apply it as a formal requirement of international law because, among other things, it would have the effect of widening, once again, the legal gap between standards of conduct in international and non-international armed conflicts. The Hamdan court, by asserting it as a matter of international law, has unfortunately hardened that distinction once again.

(However, this is all first draft stuff, thinking out loud, and I am open to persuasion that I have misanalyzed things here. I may change my mind about things I say here, as with anything else on this blog.)