tag:blogger.com,1999:blog-7506249.post110589206181963918..comments2023-11-05T04:43:31.501-05:00Comments on Kenneth Anderson's Law of War and Just War Theory Blog: WaPo editorial today gets Geneva Conventions wrongUnknownnoreply@blogger.comBlogger4125tag:blogger.com,1999:blog-7506249.post-1107225611941302432005-01-31T21:40:00.000-05:002005-01-31T21:40:00.000-05:00And, for what it's worth, the most recent Guantana...And, for what it's worth, the most recent Guantanamo detainee case ruling deals directly with this question of interpretation and comes down against the administration (see my comment to a post on Michael Froomkin's weblog): <br /><br />http://www.discourse.net/archives/2005/01/major_gitmo_ruling_by_joyce_hens_green.html<br /><br />Is this still "an MSM urban legend", rather than a plausible reading of the relevant legal text that merits, if not universal acceptance, then at least respectful consideration?<br /><br />-- Evelyn BlaineAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7506249.post-1105950904729452262005-01-17T03:35:00.000-05:002005-01-17T03:35:00.000-05:00Professor Anderson:
I note, by the way, that in ...Professor Anderson: <br /><br />I note, by the way, that in a footnote to your article ("Role of the US Military Lawyer", 4 Chi J Int'l L 460, n. 23), you come extremely close to my point of view: you write that the US position "elevates a mere legal literalism over the obvious intent of the Third Geneva Convention." I would say, in perhaps more Blackian language, that it elevates one literalistic reading of an inherently ambiguous clause over a structural imperative that becomes clear when one looks at the Geneva Conventions as a whole (and even clearer when one looks at them in the context of the entire system of CIL). <br /><br />The difference, I think, is that I believe that any good theory of treaty construction should include a canon rejecting such counter-structural interpretations; one should instead fill in the ambiguity in the way needed to keep the treaty's overall principles from being frustrated. I assume that you would disagree. <br /><br />I can see that many people would dislike this canon, just as many people dislike structuralist/holistic readings of the Constitution and some of the normative canons that can result therefrom; but it is at least a plausible option, with a coherent theory behind it -- and one which, in the context of treaty interpretation, has a long heritage. <br /><br />- Evelyn BlaineAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7506249.post-1105935032416192262005-01-16T23:10:00.000-05:002005-01-16T23:10:00.000-05:00I agree that the WaPo/Amnesty/etc. reading is not ...I agree that the WaPo/Amnesty/etc. reading is not the only plausible one of Art. 5, para. 2 of Geneva III, and that there is plenty of room, along the lines you (and the Administration) set out, for a counterargument.<br /><br />But I don't think that the interpretation of "should any doubt arise ..." is anywhere near as open-and-shut as you make it out to be, and I don't think the legal questions can be cavalierly dismissed by saying "reading this one sentence is not rocket science." <br /><br />As you point out, "[t]he question of who is entitled to determine whether any doubt has arisen is left open." But Geneva III also does not state, expressis verbis, that the military command of a contracting party may permissibly be the final arbiter of this question. The text itself may indeed, as you say, "[leave] open the possibility that the President or the Secretary of Defense may determine, even for an entire group of detainees, that no doubt arises and hence no tribunal is required", but it certainly does not give explicit positive sanction to this possibility. <br /><br />Now I would argue - and I am certainly not alone in this - that when confronted with this kind of textual silence, we need to resolve it by turning to the structure of Geneva as a whole, the general principles of CIL, and fundamental notions of fairness. <br /><br />In this context, reading "any doubt" to be legitimately adjudicable by the President or the Sec. Def., rather than by some form of individualized tribunal (however cursory), runs up against both the principle against self-judging and the principle that judicial or quasi-judicial decisions, as opposed to military ones, are best made in judicial or quasi-judicial fora. Clearly the question "has the individual X committed acts such that he is an unlawful combatant" is much closer to the kind of question traditionally adjudicated by a court-martial or tribunal than to the kind of question traditionally made by a President or Secretary of Defense acting solely under his military discretion.<br /><br />It also seems to open a very easy way for a malevolent authority to sidestep the entire purpose of the POW convention by fiat. Given these points, I would hold that the "should any doubt arise" clause has to be read generously, in a way that provides some grounds -- again, I emphasize that I don't mean a civil trial or even a full-blown court-martial -- for adversarial contestation before a neutral factfinder, rather than just a decision by the President or the Secretary of Defense. <br /><br />To be sure, my reading is not the only possible one - but I don't think yours is the only possible one either. Nonetheless, in conclusion if not in argument, at least two Justices of the Supreme Court (Souter and Ginsburg) and a lot of respected international lawyers seem to be on my side - so I don't think it can be dismissed as simply "highly partisan and unobjective" or "analysis aimed at reaching a foreordained conclusion." And I can't really blame WaPo for giving only one side of the argument in an editorial (although, in a news story, they should definitely point out the degree scholarly dispute on the matter) - it's too simple to say that they just "got it wrong." <br /><br />(I read Dworkin as alluding to the complexity of the issue: his "whether or not" seems to me to be reserving judgment on the question, rather than simply accepting your reading.)<br /><br />- Evelyn BlaineAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-7506249.post-1105898538982947092005-01-16T13:02:00.000-05:002005-01-16T13:02:00.000-05:00Let me get this straight:
Your conclusion is that...Let me get this straight:<br /><br />Your conclusion is that the administration is following a perfectly legal course supported by a complete reading of the Geneva Conventions. <br /><br />Your "however" clause to that conclusion is that even if the course undertaken is legal, there is some "moral" "basic fairness" obligation that should result in a "policy decision" to apply standards not required under international law (and which are not presently required under the U.S. Consitution)?<br /><br />I think that following unwritten and unagreed upon moral standards in such international matters is a foolish effort to, in effect, "put lipstick on a pig." <br /><br /> War is very different from criminal law enforcement and has very different rules for lots of valid and important reasons. These "combatants" and others rounded up who had weapons but who were not dressed in uniforms could have been summarily executed under international law, as I understand it. In essence they are more akin to pirates than to legitimate soldiers. Affording them rights to which they are not otherwise entitled under some "moral" theory subverts, instead of working to enhance, international law and could cause our soldiers serious problems on the battlfield, and all the more so when that "moral" theory can and does shift in the wind.<br /><br />Your conclusion is right, your "however" is wrong.Mark Tempesthttps://www.blogger.com/profile/18172703868541571574noreply@blogger.com