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Thursday, November 03, 2005
Applying the Geneva Conventions

Balkanization gives us the main reason why Article 3 of the Geneva conventions are important.
At page 380 of its Report, the Commission recommended that the United States "engage its friends to develop a common coalition approach toward the detention and humane treatment of captured terrorists," and expressly urged the U.S. to "draw upon Article 3 of the Geneva Conventions on the law of armed conflict," which was "specifically designed for those cases in which the usual laws of war did not apply." Common Article 3's minimum standards, reasoned the 9/11 Commission, "are generally accepted throughout the world as customary international law." (I should briefly add here that there are at least two serious arguments that the Executive is legally obliged to abide by Common Article 3, even if it is "only" a law of armed conflict, rather than a treaty obligation: (i) that the President's constitutional Commander-in-Chief authority only extends in the first instance to conduct that is consistent with the laws of armed conflict (a topic on which David Golove of NYU is currently writing); and (ii) the notion, suggested in the Court's Hamdi decision, that Congress's authorizations to the President to used all "necessary and appropriate" force against certain enemies (such as Al Qaeda) implicitly limit the President to using only those forms of force that are consistent with the laws of armed conflict, such as Common Article 3. But I do not dwell on those arguments here, because the Administration obviously rejects them and is not acting in accord with any such notions.)

Article 3 of the Geneva Convention is designed for those moments and situations where leaders of governments are unclear about the nature of the conflict. The language of Geneva, and the principles behind it, seem to be when in doubt grant more rights.

Of the types of wars and conflicts that Geneva applies to--and this is specifically to address some the concerns of memos to White House Counsel Alberto Gonzales, the convention was designed, in part, to apply in "armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." In these types of conflict, the Convention was specifically designed for "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," who "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."

There has been some confusion as to what exactly constitutes an "armed conflict not of an international character." In the case Hamdan v. Rumsfeld, 2005 U.S. App. LEXIS 14315 (2005), Senior Judge Williams in his concurrence takes those words to mean:
Common Article 3 fills the gap [between other Articles], providing some minimal protection for such non-eligibles in an “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties.” The gap being filled is the non-eligible party’s failure to be a nation. Thus the words “not of an international character” are sensibly understood to refer to a conflict between a signatory nation and a non-state actor. The most obvious form of such a conflict is a civil war. But given the Convention’s structure, the logical reading of “international character” is one that matches the basic derivation of the word “international,” i.e., between nations. Thus, I think the context compels the view that a conflict between a signatory and a non-state actor is a conflict “not of an international character.” In such a conflict, the signatory is bound to Common Article 3’s modest requirements of “humane[]” treatment and “the judicial guarantees which are recognized as indispensable by civilized peoples.”

Most scholars would agree with Senior Judge Williams. Then Judge John Roberts, voting with the majority, narrowed the language of the text to argue that the convention only meant "civil wars" when it said "not of international character." His narrowing suggested that in so far as the conflict with Al Queda was not an internal war, the convention did not apply.

I take issue with the idea that the convention oughtn't apply. The laws of the conduct of nations in war, jus in bello, should always be read expansively due the character of war itself. War is messy; war is hell. In war, any rights that exist are at best provisional. Whereas during peace time, a person could have a prosperous, comfortable existence, in war, life is, as Hobbes reminds us, nasty, brutish, and short.

The laws of war act as a bookend on the confusing state of war. The return to legalized relationships, as codified in the international treaties like the Geneva conventions and as unspoken in customary international law, represents the return to the normalcy of the civilized world. "The people" rule through the law as it demarcates and constructs the relations between persons in peace time. The laws of war speed the transmogrification of the former combatant, who doesn't warrant protection while she was fighting, into the civilian, who does warrant protection under the principle of distinction.

Rejection of the juridical liminal state of the status-category "prisoner of war"--where a person who clearly is a potential danger is accorded the respects and rights of a civilian--means that for the captured prisoner, the war is not over. Being under the law accords the individual the substantive option to not resort to violence as bargaining tactic; interdiction from the civilizing aspects of the rule of law incentivizes the continuation of the armed struggle. Without the protection of the law, the soldier's dignity, respect, and above all else, survival is only assured through her strength and the power of her weapon. To put it most concretely, the United States tacitly admits that there is no reason for a terrorist to surrender or attempt to end the hostilities; the war for the soul of the terrorist shall be waged long after the shooting stops.