Common Article 3 (1st in a Series)

by Katherine

Last Thursday, the Supreme Court ruled by a 5-4 margin that Common Article 3 of the Geneva Conventions applied to the war with al Qaeda, as a matter of treaty obligation. 

Contrary to what you'll hear from a lot of right-wing commentators, the Court did not find that al Qaeda terrorists are prisoners of war. Common Article 3 is not the same as the Third Geneva Convention on prisoners of war. Rather, it’s the third article of all four Geneva Conventions. Here is the text.

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.

An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Here are the International Committee of the Red Cross's commentaries on the text, which I will discuss in more detail later on.

As Justice Kennedy noted in his concurrence in Hamdan, the United States' criminal code defines violations of Common Article 3 by U.S. citizens as "war crimes," punishable by a sentence of up to life imprisonment if the victim lives and by death if the victim dies.

Because of this, the holding that Common Article 3 applies to the war with al Qaeda may be most important, and most controversial, aspect of the Supreme Court’s decision in Hamdan. Based on their comments to the Sunday talk shows this week, some Republican Senators are planning to introduce legislation to reverse or repeal that part of the decision. It is not clear whether or how strongly Democratic Senators will oppose them.

This post is the first in a series explaining why I think that would be a huge mistake. I’m not going to be making technical legal arguments about whether or not the conflict with al Qaeda is or is not “of an international character”; for the legal arguments I commend you to Professors Marty Lederman and Derek Jinks. I’ll be focusing more on the factual issues and policy implications. The basic goal is to discuss Common Article 3 of Geneva in the same way that hilzoy and I discussed for habeas corpus during the debate about the Graham Amendment last fall (although not all in one weekend. There's a bit more warning this time, fortunately--which does not mean it's too soon to start harassing your Senators and Congressmen.)

Comments

[mss]

Article 3 sounds remarkably Christian to my ears. A blend of the
beatitudes, turn the other cheek, do unto others, etc., with the Red
Cross thrown in to seal the bargain.

No wonder the American right hates it.

[Gary Farber]

"I’m not going to be making technical legal arguments about whether or not the conflict with al Qaeda is or is not 'of an international character'...."

I'd appreciate confirmation or clarification of my tentative understanding of the meaning of that term in this context, which is that it refers to conflicts that are not between nations, "inter-national" here meaning just that: "between nations," and that it does not mean what "international" means in common usage, which would here mean "conflicts that take place in more than one nation," which seems to be what many folks on the right are sneering at as absurd and obviously wrong (as it would be, if that's what "international" meant in this context).

So do I misunderstand, or what?

[Jesurgislac]

((By the way, Katherine: this is fantastic, and I'm so glad to hear you're doing this.))

[Sebastian Holsclaw]

What would be the purpose of interpreting "international" in such an idiosyncratic way? Which is not to say that the IRC hasn't chosen to do so, but why?

It seems to me that there has been a significant push by some organizations and countries to treat non-uniformed guerilla warfare combatants as if they were regular army members for all purposes of the Conventions. This was codified in additional Protocol 1. This new interpretation has not been ratified by the US, was not part of the original conventions, and doesn't make sense with respect to the whole logic behind having uniforms which set people apart from civilians (which is to protect civilians by making it more possible to target the specially dressed combatants).

My question is whether or not the "international" interpretation is an extension of the Protocol 1 fight, which the US has never signed off on (and probably never will).

[hilzoy]

Seb: in Hamdan, at least, it was not an extension of protocol 1. I tried to explain this here. (Including why it's not a particularly idiosyncratic reading.)

[Sebastian Holsclaw]

I understand that it isn't part of Protocol I. But it appears to me that the fight over "international" here is tied to the objections that the United States has to Protocol I.

A big part of the fight over Protocol I, and the reason why the US has never ratified it, is because it would allow guerillas to hide in civilian populations without invoking the concept of "spy or saboteur" (which is also contested, see for example here for International Red Cross commentary on the topic of spies.

But I'm not disagreeing with applying the Geneva Conventions. I don't think doing so would damage US security because we can still try and take punitive action up to and including execution. Bush wants to avoid trying them, and he shouldn't. The Geneva Conventions DO APPLY, but not in the way that some people think. There should be proper hearings to find whether or not they are combatants at all, if not they should be freed. The next step is to determine if they are prisoners of war. Typically they are not (for a large variety of reasons, mostly tied to not bothering to be distinguishable from civilians by uniform and or hiding behind civilians--endangering civilians by making them all suspect). As such, it is within our rights to detain them as other than prisoners of war or in some cases execute them.

[Sbastian Holsclaw]

To be clear: it is within our rights to detain them as other than prisoners of war or in some cases execute them if they are found guilty of spying or acts of sabotage by a competent tribunal.

[Gary Farber]

Ah, I wasn't around for that cited post of yours, Hilzoy.

Although unstated, I take it that my interpretation of the use of "international" was, then, correct.

I'm not entirely sure I understand Sebastian's question, but the answer seems to be in Hamdan as cited by Hilzoy, specically, "the commentaries also make clear 'that the scope of the Article must be as wide as possible,' id., at 36.63."

Thr purpose of that, obviously, is to protect as many people as possible. Generally speaking, the point of the Conventions is to prevent people from being mistreated.

I'd also note in response to this from Sebastian: "What would be the purpose of interpreting 'international' in such an idiosyncratic way?"

Just because it's not a colloquial usage or one you are used to doesn't make it "idiosyncratic." It's a conventional, less-colloquial, but not deeply obscure, usage.

[Steve]

There are certain aspects of the Hamdan decision which Congress can "fix," including the mechanisms by which military tribunals are conducted.

But in terms of whether Common Article 3 applies to al-Qaeda, it seems bizarre for Congress to be "fixing" that issue. Justice Thomas' dissent in Hamdan made a strong argument that unlike an ambiguous law, which the courts can interpret, an ambiguous treaty ought to be interpreted by the President, not by the courts, because of the foreign policy implications. In other words, Thomas agreed that it was reasonable to interpret Common Article 3 to apply to al-Qaeda, but he felt the Court should defer to the President and make the call itself.

Like I said, I think it's a strong argument, that makes sense as an intellectual matter. But whether you think the Court was right in interpreting the Conventions itself, or if they should have deferred to the President, it's clear that Congress doesn't have a role in the process. Under the Constitution, they get to provide advice and consent concerning treaties negotiated by the President, but they don't get to redefine what the treaties say.

Let's assume that it's going to be the official position of the United States, going forward, that Common Article 3 was never intended to apply to conflicts like the war with al-Qaeda and that we're not going to interpret it that way. Well, it's the President's job to figure out how the other signatories look at it, to negotiate with them as to whether they'll accept our interpretation, and to decide whether to withdraw in whole or in part. That's not a process for Congress; and imagine how we would feel if we signed a treaty only to discover that the other signatories reserved the right to amend the treaty by unilateral fiat of their legislative bodies. Legislatures aren't empowered to negotiate and this aspect of the Hamdan decision ought to be left to the Executive Branch to sort out.

[Gary Farber]

"Legislatures aren't empowered to negotiate and this aspect of the Hamdan decision ought to be left to the Executive Branch to sort out."

My understanding of the proposal made by those who want Congress to "deal with" Article 3 (which I oppose) is that they simply want Congress to change the USCMJ so that it no longer incorporates Article 3, rather than that they seek to re-interpret the Article. (Whether this would require formal withdrawal from the Geneva Conventions, as it would seem to, is a point they don't seem, as yet, to much grapple with or acknowledge.)

[Sebastian Holsclaw]

"Just because it's not a colloquial usage or one you are used to doesn't make it "idiosyncratic." It's a conventional, less-colloquial, but not deeply obscure, usage."

Part of my point is that the usage is contested not just less-colloquial and seems tied to to an argument about un-uniformed 'soldiers' which some in the international community have tried to resolve by an amended protocol. I don't agree with the intent of those changes, and the United States has very intentionaly not ratified those changes.

The changes lessen the protections for civilians by watering down the distinction between combatants and civilians. This puts civlians in danger by making it more acceptable to masquerade as a civilian.

[Sebastian Holsclaw]

To quote the same commentaries:

"Speaking generally, it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with ' armed forces ' on either side engaged in ' hostilities ' -- conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country."

This is not in fact the case. The 9/11 attacks for instance were directed from within Afghanistan against New York, and Al Qaeda operates in Spain, Afghanistan, the US, and Iraq. The commentary for the protocol focuses mainly on civil war, which may apply to Iraqi citizens fighting in Iraq right now, but not to Al Qaeda members in Afghanistan, foreign fighters in Iraq, Al Qaeda members in Spain, the US, Canada, etc. If Al Qaeda operates and makes attacks in multiple countries, the conflict is not in the confine of a single country.

Also note this commentary by the IRC which may tend to discourage the idea that operating under Article 3 is such a hot idea:

In the case of armed conflict not of an international character, and subject to what has been stated above regarding the recognition by third parties of a state of belligerence, the Parties to the conflict are legally only bound to observe Article 3, and may ignore all the other Articles. But each one of them is completely free -- and should be encouraged -- to apply all or part of the remaining Articles of the Convention. An internal conflict may, as it continues, become to all intents and purposes a real war. The situation of thousands of sufferers is then such that it is no longer enough for Article 3 to be respected. Surely the most practical step is not to negotiate special agreements in great detail, but simply to refer to the Convention as it stands, or at all events to certain of its provisions.

Essentially, from a legal perspective, you operate under one or the other but are not required to operate under both.

[Steve]

The reasoning of the majority in Hamdan is that you do operate under one or the other - either it's a conflict between two nations (an "international conflict") or it's something else (a "conflict not of an international nature"). Maybe they're right, or maybe there's supposed to be a hole in the middle where it's not a war between nations but it's not an internal conflict either, I'm not knowledgable enough to know.

But if someone wants to take the position that Common Article 3 only applies to civil wars or internal rebellions, the appropriate question is to ask why. The policy behind Common Article 3 seems to be that there are certain basic rights that every combatant is entitled to, period, whether or not they belong to some state army. What is the justirication for saying that we would treat al-Qaeda a certain way if they were strictly a domestic terrorist group, but since they're a foreign group, they're not entitled to any protections? I don't get the principle here.

[Jesurgislac]

Steve: I don't get the principle here.

I do. The underlying principle here is the wish by Republican supporters that there must be some way we can exempt ourselves from the Geneva Conventions when dealing with al-Qaeda. Whether (more justly) only with al-Qaeda who have been tried fairly and convicted, or (what you could call the standard Republican talking-point) with anyone who has been accused of dealing with al-Qaeda.

And the obvious reason for that is that there are hundreds at least (maybe more) of prisoners in the US gulag who maybe could have been determined to be al-Qaeda if the US hadn't started out by stripping thousands at least of innocent men of their legal rights, and torturing prisoners to obtain accusations against others.

Evidence obtained by torture not only cannot be admissable in court if the Geneva Conventions apply - admitting that evidence was obtained by torture will leave American soldiers and CIA employees wide open to trial for war crimes, if the Geneva Conventions apply.

There's two more years for Bush to pardon everybody concerned. Or the people responsible may be counting on putting in another candidate successfully in 2008, and having their next candidate helpfully pardon everyone (well, maybe a few low-ranking scapegoats will serve a few years).

But the first step towards prosecution is to establish that every prisoner held by the US military is under the protection of the Geneva Conventions, no matter what they were accused of, or where they were captured, or whether or not they were wearing a uniform. The longer this first step can be resisted, the better for those who were responsible for the torture of prisoners - al-Qaeda and innocent alike.

[Steve]

Ok, yes, but I think you recognize that what you just articulated is not a "principle" as rational people understand the term.

My question, to be clear, was this: If Common Article 3 applies only to civil wars and conflicts with domestic groups, and not to conflicts with groups based in other countries, why the heck was it written that way? What were the signatories thinking when they wrote a convention which supposedly says, "If you're fighting an insurgent group within the borders of your own country, these are the basic humanitarian boundaries you need to respect - but if you fight an insurgent group based elsewhere, all bets are off!" I just don't understand the line of thinking that would result in drafting a treaty this way.

[Sebastian Holsclaw]

"But if someone wants to take the position that Common Article 3 only applies to civil wars or internal rebellions, the appropriate question is to ask why. The policy behind Common Article 3 seems to be that there are certain basic rights that every combatant is entitled to, period, whether or not they belong to some state army. "

I see you have written another comment while I wrote this one.

"If you're fighting an insurgent group within the borders of your own country, these are the basic humanitarian boundaries you need to respect - but if you fight an insurgent group based elsewhere, all bets are off!"

This isn't it. The other rules (the ones you normally think of as the "Geneva Conventions") apply for international conflicts. When those don't apply, Common Article 3 applies. It isn't anything goes. Common Article 3 exists to keep it from the "anything goes" situation if the war is non-international.

I think the idea that this case is non-international is wrong anyway, but that is a different topic.
No. Common Article 3 is for conflicts where the other rules do not apply. You have the other Geneva rules OR those rules.

My problem with the "Geneva Conventions" as invoked is that people on both sides don't seem to understand what they are really talking about. On the left--a finding that someone is a "spy" or an "unlawful combatant" is not in itself a violation of the "Geneva Conventions". Certain methods of doing so may violate the Conventions, but some do not. On the right--committing to the Conventions doesn't mean you can't ever take punitive action, you just have to do it through the right method. We can still execute spies and saboteurs. I'm not saying that we should execute them, but we can do that and other things that are not allowed to POWs--though torture is not one of the permitted other things.

[Gary Farber]

Sebastian: "I think the idea that this case is non-international is wrong anyway...."

You think that the "War On Terror" is a war only between nations, and not between nations and other groups?

Why? (I have no disagreement with the other points in your comment.)

[Steve]

The question, SH, is whether there's a gap in the middle where no Geneva protections apply.

It's clear that the overall Conventions apply to a standard war between two signatory states. It's also clear that Common Article 3 applies to a civil war or internal rebellion. But does the conflict against al-Qaeda fall into some "little-known third category," with apologies to Al Gore, or is it necessarily governed by one or the other set of rules? That's the key issue which turns on how we define "international conflict."

[Gary Farber]

"But does the conflict against al-Qaeda fall into some 'little-known third category,' with apologies to Al Gore, or is it necessarily governed by one or the other set of rules?"

Since Hamdan answered that, I'm not following to whom the question is relevant. ?

[Sebastian Holsclaw]

"But does the conflict against al-Qaeda fall into some "little-known third category," with apologies to Al Gore, or is it necessarily governed by one or the other set of rules?"

I think that it has characteristics of both, but that it tends not to restrict itself to one set of national boundaries and is not enough like a classic civil war so I would apply the international war standards. But in neither case would I apply the relaxed standards of uniform and setting oneself apart from civilians that some in the IRC and other agencies are promoting. I think in reality that tends to degrade the protection of real civilians.

[Katherine]

I do not have time to address the "of an international" character argument too. Please read the article by Derek Jinks if you're curious about that.

[Jesurgislac]

Sebastian: On the left--a finding that someone is a "spy" or an "unlawful combatant" is not in itself a violation of the "Geneva Conventions". Certain methods of doing so may violate the Conventions, but some do not.

Except that "unlawful combatant" is not, to my knowledge, covered by the Geneva Conventions: if you think it is, would you care to cite the clause which refers to unlawful combatants? To the best of my knowledge and belief, "unlawful combatant" is a peculiarly-American invention, meaning "someone who we don't think has the right to shoot at us even though we just invaded their country".

[Sebastian Holsclaw]

"Except that "unlawful combatant" is not, to my knowledge, covered by the Geneva Conventions"

Look it up in the IRC commentaries. Or read this by Derek Jinks with whom I disagree on the topic of what the international law ought to look like but he describes the fact of unlawful combatant status and its history fairly well. (He gets bogged down in what he sees/hopes the trajectory of international law is at times).