Monday, July 18, 2005

Hamdan: Does Common Art. 3 Apply?

Marty Lederman has posted this excellent analysis of the Hamdan case over at As Julian pointed out in his original post, the DC Circuit's conclusion that the Geneva Conventions do not apply to the current conflict with al Qaeda is vulnerable on appeal to the Supreme Court. Lederman probes deeper into the question of whether Common Art. 3 of the GCs (pertaining to conflicts "not of an international character") should apply to Guantanamo. I happen to agree with Judge William's dissent on this issue: Common Art. 3 was designed to apply to all conflicts that could not be categorized as between two sovereign states. Internal conflicts, insurgencies, and yes, cross-border terrorism and counter-terrorism, seem to all fit within the category of non-international.

As Lederman notes, the DCC opinion may have greater impact than Julian suggests. If Common Art. 3 does not apply at Guantanamo, then there is no treaty-based requirement of humane treatment. So while Hamdan is about the constitution of the military commissions, it has broader implication in the debate over treatment of detainees. Will this be enough to prompt congressional efforts to codify Common Art. 3? Lederman sees this as a distinct possibility. It would certainly shift power away from the executive to a more accountable branch.

I hear, in Lederman's discussion of Senate discomfort with certain administration positions, echoes of the Israel Supreme Court opinion in the Public Committee Against Torture Case (38 ILM 1471, 1999) in which it held that, if the GSS wished to use certain physical means of interrogation (shaking, and certain other methods that "impinge on the suspect's dignity, his bodily integrity and his basic rights"), it could only do so with parliamentary authorization:
This having been said, there are those who argue that Israel’s security
problems are too numerous, and require the authorization of physical
means. Whether it is appropriate for Israel, in light of its security
difficulties, to sanction physical means is an issue that must be decided
by the legislative branch, which represents the people. We do not take
any stand on this matter at this time. It is there that various considerations
must be weighed. The debate must occur there. It is there that the
required legislation may be passed, provided, of course, that the law
“befit[s] the values of the State of Israel, is enacted for a proper purpose,
and [infringes the suspect's liberty] to an extent no greater than required."
What about whether the protections of Common Art. 3 applies as a matter of customary international law? The fact that the Bush Administration changed over 5 decades of US government practice on the applicability of Common Art. 3 -- and its status as customary international law -- appears to be a significant (if not determinative) fact in this case. Indeed, why else would the administration have gone to the trouble of changing the policy if it intended to actually extend the minimal protections of Common Art. 3 to the Guantanamo detainees? If it is the case that the President is always acting constitutionally when he determines whether the US is bound by an international custom, challengers will continue to lose on this question.

The 2005 ICRC restatement of customary humanitarian international law was not cited by the DC Circuit. My own (admittedly, cursory) reading of those volumes suggests that while there is room to debate whether the terms of Comm. Art. 3 are meant only to apply to those conflicts that are geographically non-international (i.e. civil wars), its protections extend -- through practice and through incorporation of other international human rights instruments -- to all detainees.

But even it SCOTUS decides that the GCs and Comm. Art. 3 apply and create justiciable grounds for a habeas challenge, it doesn't result in instant victory for the plaintiff. As the DCC notes, if Comm. Art. 3 applies, the federal courts may still require that detainees exhaust all of their remedies through the military justice system before brining a collateral challenge under the Geneva Conventions. Even the most generous reading of customary international humanitarian law will not get plaintiffs out of the exhaustion requirement.


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