Wednesday, October 12, 2005

Human Rights in the Balance: What's at Stake in Hamdan

Guest Blogger

David Luban

This week the United States Supreme Court stands on the verge of a momentous non-decision - a non-decision that would quietly deal a major setback to international human rights, and place the United States at odds with our allies on a crucial issue of how to interpret human rights treaties.

The Court has listed Hamdan v. Rumsfeld for its conference for the second time on Friday - which means that this major case failed to attract the four votes necessary for certiorari the first time around. If the Court decides on Friday not to hear the case, the lower court ruling stands. The very fact that the Supreme Court didn't take up Hamdan the first time around means that the Justices have not appreciated how momentous that lower court ruling is.

Hamdan concerns the legality of President Bush's military commissions to try suspected terrorists at Guantanamo. In mid-July, the D.C. Court of Appeals overturned a decision declaring that the commissions lack the necessary due process features of courts-martial, and violate the Geneva Conventions. The appellate panel - which included now-Chief Justice Roberts - held that the time to address flaws in the military commission procedure is after the trials, not before, and after the defendants have exhausted their military remedies. Perhaps the Supreme Court accepts this conclusion, and that is why it hesitates to take up Hamdan now rather than later.

But another part of the Hamdan decision is doing its damage now. Among the issues Hamdan settled is a crucial question about who the 1949 Geneva Conventions protect. In the only split portion of the decision, the panel voted 2-1 that Geneva does not apply to the Global War on Terror. The implications of this holding are profound, and go to the very heart of modern human rights protection. To see why, it is necessary to understand how Geneva works.

The Geneva Conventions establish two levels of wartime protection, depending on the nature of the war. If the war is an "old paradigm" conflict between states, Geneva provides an elaborate system of protections - for prisoners of war in the Third Convention, and for civilians in the Fourth Convention. (The remaining two conventions concern wounded and sick combatants on land and sea.) But what about conflicts that don't pit state against state? Here, in "common Article Three" (common, that is, to all four Conventions), the Geneva framers insisted on at least minimum human rights for anyone who is detained. These include rights not to be sentenced or punished without minimum due process - the Geneva right on which Hamdan based his argument against the military commissions.

But common Article Three also provides for other basic human rights, including rights against violence, cruel treatment, torture, and "outrages upon personal dignity, in particular, humiliating and degrading treatment." When the D.C. Circuit held that Article Three does not apply to the War on Terror, it stripped away all these basic protections from detainees. In place of the split-level protections of Geneva - full protections in state-against-state wars, and at least minimum human rights the rest of the time - Hamdan creates a third tier of "protections," namely no protections at all, in the War on Terror. Where Geneva creates a main floor and a basement, Hamdan digs beneath the basement and adds a dungeon.

To see why this matters so desperately, consider the astonishing events of the past two weeks. On September 22, the Secretary of the Army and the Chief of Staff for the Army published a self-congratulatory article in the National Review, insisting that the Army has done a splendid job of punishing those who abuse detainees. Ironically, the very next day, Captain Ian Fishback's allegations of widespread detainee abuse by the celebrated 82nd Airborne were published - allegations that included the lamentable story of Fishback's 17 months of futility trying to get the Army to address the abuses, which included outrages like breaking a detainee's leg with an aluminum baseball bat purely for amusement. Then, on October 6, the Senate passed the McCain Amendment by an overwhelming bipartisan vote, demanding that the United States forego cruel, inhuman, and degrading treatment of detainees. The Amendment, attached to a massive defense appropriations bill, plugged a loophole in the law that the Bush administration has used to reach the bizarre conclusion that the ban on cruel, inhuman or degrading treatment does not apply outside U.S. territory. Astoundingly, the Bush Administration replied that the McCain Amendment is so unacceptable that the President might exercise his first veto ever against a bill that has the Amendment attached. This protest is tantamount to an admission that the United States has indeed been abusing detainees abroad, and doesn't want to stop. Why else would the President so vehemently oppose McCain?

The McCain Amendment's heart is in the right place - but, unfortunately, it may not survive the Congressional conference. Even if it does, it contains one conspicuous weakness: it attaches no penalties to violations. Thus, even if the McCain Amendment becomes law, it is still the Geneva Conventions that offer the best hope of legally controlling the kind of practices that led to Abu Ghraib - and, if Fishback's accusations stand up, other abuses as well. Geneva has the tremendous virtue of familiarity: U.S. military standard operating procedures have been built around them for more than fifty years. If the Supreme Court leaves Hamdan's ruling intact, the wall that Geneva built to protect detainees from torture, humiliation, and violence crumbles.

The Hamdan majority adopted the Bush Administration's argument that Geneva does not apply in the War on Terror. According to this argument, Article 3 applies only to "internal" armed conflicts - civil wars within a single country. The War on Terror is not a civil war, nor is it an old-paradigm war between nation-states; neither fish nor fowl, it falls outside all categories that Geneva protects.

The Hamdan majority has treaty text to back up its interpretation. Article Three states that it applies only "in case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties [i.e., parties to Geneva]." The War on Terror undoubtedly is "of an international character," and it occurs in the territories of many states, not one; thus, Article Three does not apply. So goes the argument, and it has some plausibility.

As Judge Williams notes in his dissent, however, the awkward phrase "not of an international character" simply means "not between nation-states." International law has traditionally been defined as the law governing relations among states - the literal meaning of "inter-national." And so, "not international" doesn't mean "internal" - it merely means "not between nation-states." On that reading, the standard one among international lawyers, Article Three does apply to the War on Terror, which clearly is an armed conflict not between nation-states. Initially, the framers of the Geneva Convention considered limiting Article Three to internal armed conflicts; but they rejected that narrow phrasing in favor of the broader phrase "not of an international character." Nor does the phrase "…occurring in the territory of one of the High Contracting Parties" limit Article Three to conflicts within a single state. That phrase is in the Convention simply to ensure that Geneva applies only to states that are parties to it, not states that aren't. Treaties cannot bind non-parties, and Geneva would have been invalid if it purported to apply outside the territory of at least one of its "High Contracting Parties." Today, that is a non-issue, because every state in the world except the demilitarized island republic of Nauru has joined the Geneva Conventions. But in 1949 it was unclear that Geneva would win such universal acceptance, and so the treaty had to add language limiting its scope to states that agreed. The phrase is there purely for jurisdictional purposes, and it means "at least one High Contracting Party," not "at most one."

Of course, these esoteric interpretive issues can be debated, as the split opinion in Hamdan clearly demonstrates. All the more reason for the Supreme Court to weigh in on the issue rather than ducking it. In the post-Abu Ghraib era, the stakes could not be higher.

The issue goes deeper, however, to the very nature of human rights treaties - and here the D.C. Court of Appeals simply ignores the way that our closest allies read such treaties. The United States has argued - most persuasively in an internal executive branch memo written by the controversial law professor John Yoo - that in 1949 the framers of Geneva never even considered the possibility of a conflict like the War on Terror. All they had in mind was state-against-state wars like World War II, or civil wars, like the Chinese civil war then in its end stages. Yoo argued that to expand Geneva protections to the War on Terror is to go beyond the intent of the drafters and, in effect, to modify the treaty without going through the formal amendment process.

Apparently, the Bush Administration bought this argument, because Yoo's opinion formed the basis of the President's declaration February 7, 2002 that Geneva does not apply to Al Qaeda or Taliban captives. But the argument uses an interpretive method that international law and our allies have rejected. International tribunals and the European Court of Human Rights have argued that there is something special about human rights treaties that calls for a more expansive interpretive method. Thus, in a 1989 decision the European Court noted the "special character" of any "treaty for the collective enforcement of human rights and fundamental freedoms." The "object and purpose" of such treaties "require that its provisions be interpreted and applied so as to make its safeguards practical and effective." In the same vein, the International Criminal Tribunal for Former Yugoslavia thought that expansive readings of human rights treaties guides "the entire logic of international humanitarian law. This body of law is not grounded on formalistic postulates…Rather, it is a realistic body of law, grounded on the notion of effectiveness and inspired by the aim of deterring deviation from its standards to the maximum extent possible." These Courts understand that the whole point of universal human rights is that they are supposed to be, well, universal - and that means you don't loophole human rights treaties like Geneva with the aim of narrowing them. You read them as living documents that expand to fill gaps that changes in the challenges to human rights create. If the nature of war has changed since 1949, it would defeat the purpose of a human rights treaty like common Article Three to restrict it to the kind of wars being fought in 1949.

In fact, the European Court's and Yugoslav Tribunal's conclusion follows the standard methods of treaty-reading that international law creates and that the United States has long accepted. There happens to be a treaty about the law of treaties - the Vienna Convention on the Law of Treaties. According to the Vienna Convention, when the plain meaning of treaty language is unclear, interpreters should look to the "object and purpose" of the treaty. When it is a human rights treaty, object-and-purpose analysis call for generous readings, not cramped, crabbed loophole lawyering. U.S. foreign relations law accepts these provisions of the Vienna Convention - but the Hamdan decision does not so much as mention them. If the D.C. Court of Appeals decision stands, the United States will find itself at odds with much of the rest of the world, including our European allies.

That would be a curious result at a time when it has become controversial whether the Court should consider the way foreign courts treat legal issues. Justices Breyer and Kennedy have both taken fire from the right because of their willingness to cite decisions of foreign courts; currently, a resolution is pending in the House of Representatives condemning the very mention of foreign judgments in U.S. constitutional opinions. Apparently, the idea that U.S. jurists might learn from outsiders is unpatriotic and undemocratic. (Perhaps the logical next step is to forbid U.S. courts from citing scientific evidence written by foreign scientists.) Both these Justices have been admirably steadfast in insisting that solipsism and jingoism have no place in judicial deliberation. When it comes to reading treaties, the case for looking to international sources is even stronger, because the Vienna Convention (in another provision that the United States accepts) instructs interpreters to take into account "any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its application." In other words, treaty interpreters are supposed to look at how treaties have been applied around the world.

If the Court denies cert to Hamdan, it will say, in effect, that the reach of human rights treaties, and the methods for interpreting them, are simply not issues worthy of the Court's attention. That would be a curious result indeed.


From Article 2 paragraph 3 of the Geneva Convention:

"Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof."

If a treaty establishes a basic human right, then such a right would not be conditioned on whether another country "accepts and applies" the treaty. It would apply unconditionally, no matter what they other side does.

The alternate view is that the Geneva Convention is a deal among countries. We will treat your captured soldiers fairly if you treat ours fairly. Such a bargain would be enforced entirely within the Executive powers of Commander in Chief and Foreign Policy.

The problem here is that soldiers don't exactly have the same "human rights" that civilians have. For example, when the officer tells you to capture the top of a hill, and there is a good chance you will get killed in the process, you don't get to argue about being deprived of life or liberty without due process of law.

A decision that the Geneva Convention is not judically enforcable simply means that the responsibility for interpreting it and enforcing it rests with the military and not with the courts. After problems with the Chinese in Korea and the North Vietnamese, the JAG lawyers are just as concerned not to establish bad precedents for future conflicts as anyone else. After all, you can be damn sure that no ACLU lawyer is likely to end up in an enemy POW camp. It will be US soldiers that have to be protected.

That said, the "human right" being protected here is not the usual POW problem. After the Germans murdered millions of Russian POWs, and the Russians murdered millions of Germain POWs, and the Japanese killed all the Americans on the Bataan Death March, and in the middle of all this discussion of torture, the "human right" here is the ability of an accused to view classified material that may be introduced into a trial. While the other side in this conflict is kidnapping civilians, "trying" them, and cutting their heads off on TV, I don't see where exactly "the latter accepts and applies the provisions thereof".

Excellent post David, but there is no need for the McCain amendment to impose penalties: they arlready exist in 18 USC 2441 (War crimes), which makes it a federal felony to commit any grave breach of the Geneva Conventions, any violation of Geneva Common Article 3, or any violation of the Hague (1907) Anex of Regulations arts. 23, 25, 27, or 28.

Notable among the Hague provisions are art. 25:

"The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."

Which arguably includes prisons containing defenseless prisoners; and especially art. 23[h] which states:

"In addition to the prohibitions provided by special Conventions, it is especially forbidden * * * To declare abolished, suspended, or inadmissible in a court of law the rights and actions of the nationals of the hostile party."

18 USC 2441 applies to any prohibited act by or against a US national or service member anywhere in the world, and it carries the death penalty if the offense results in the death of the victim.

As for the Hamdan decision itself, my own comments on that are available in a statement which I submitted to the Senate Judiciary Committee: Hamdan Commentary.


Charles Gittings

A few things.

(1) It seems eminently reasonable that treaties -- including this one -- is not solely in the hands of the executive power.

(2) As to foreign policy, the courts have something to do with it. Consider the role of the courts in protecting Chinese aliens in this country in the late 19th Century. Again, I do not see why the courts cannot in some fashion be involved here.

(3) The military is interested in good behavior because the opposite results in negative results in any number of situations. Again, this does not generally mean the courts do not have some authority to limit their control. To paraphrase, the civil is above the military power in this country (compare -- the Declaration of Independence)

(4) This blog has noted that military procedure still raises the question of CIA interrogation.

(5) This is not just a question of classified info etc. ... though this might include discussions on how certain evidence was determined by torture, breaking of legs with bats, etc.

(6) Of the POWs of past wars, I assume none were or became defense attorneys. Likewise, is no defense attorneys or members of the ACLU in active duty overseas now or will none be in the future?

Interesting GC article. If the SCT denies cert. in Hamdan, a definite possibility, things may heat up in the CADC. Stay tuned.

Steve Truitt

I think it is important to note that the minimum human rights are in Common Article 3 not in Article 2 of the GPW. It should also be noted, as I am sure has been said here, that the Legal Adviser at state made a devastating critique of the Yoo ideas at the time decisions on Geneva applicability were made. As to this being a new war, please note what Grotius wrote in 1625

"“Private Men may certainly make War again[s]t private Men, as a Travel[l]er against a Robber, and Sovereign Princes again[s]t Sovereign Princes, as David again[s]t the King of the Ammonites; and [s]o may private men against Princes, but not their own, as Abraham did again[s]t the King of Babylon, and his A[ss]ociates.

So may Sovereign Princes against private men, whether their own Subjects, as David against I[s]bbo[s]eth and his Party, or Strangers, as the Romans against Pirates.”

Nothing new under the sun. The focus is on security and keeping our honor clean. I think that Sandra Day O'Connor gets it and that is why this is going around like this. The interesting thing is whether by the time the case did get heard, she would be off the court and Harriet Miers in and the effect that would have on the court's decisions.

Ben Davis

Since every nation on earth has subscribed to the Geneva Convention, one must assume that this question has been raised before. Last week the Israeli High Court ruled that the practice of using human shields was illegal because it violated the Geneva Convention. Other than Israel, are their any cases of judical enforcement of the Geneva Convention by any country in a case brought against their own military?

The Minds Limit Today

In Jean Amery's, The Minds Limit, his capture and descent into torture by German Nazi’s, starts by pointing out that his torturers showed no “banality of evil” in their faces. First there is the "laugh" and then the "first blow." The prisoner then realizes that they are "helpless." Lost is the “trust in the world.” Certainly there is no “mutual aid in nature.” No. It is time for the “business room.” But before describing his own torture the author makes “good on a promise I gave.” Not that they where not specialists in torture, but more so his conviction that “torture was the essence of Nationalist Socialism – more accurately stated, why it was precisely in torture that the Third Reich materialized in all the density of its being.”

I ask you dear citizens should we also "codify" that the detainees at Camp Xray can also be children as recently reported in the news? Not only does that sound slightly like the rule of antiman but I do believe antichild included. And if that is so then the rule practiced as such has “expressly established it as a princple.” So just what else in "essence" does go on at Camp Xray – "tricks"? Plead mercy, pray tell? And now comes Abu Grieb and CIA renditions. Were these people even registered under the Patriot Act. Refuse Himmlers offer for a Certificate of Maturity in History I would suggest. Nay, to forsake the Constitution and be depraved of our humanity would be more painful in the end Mr Rumsfeld. Slavery to torture is all you will get. Go tell that to the Marines Mr. Rumsfeld after you have tendered your resignation.

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This is an excellent post and i agree with much of the analysis.

only, it seems you concede too much plausibility to the Administration's position.

First the very notion of a 'War on Terror' is an ideological slogan. the extent of its reach is unclear and for that reason its staus as a war is disputable. i.e. the Bush co. will attempt to use it as a catchall for any action they take thereby guarranteeing an international [transnational] character. but one could conceive of the wars in Afganistan and Iraq as internal civil wars, that happen to involve foreign [U.S.] intervention: thus, the war b/t the Northern Alliance and the Taliban; or the war between the 'insurgents' and the Iraqi puupet gov't. just as for example, the South Vietnamese govt vs. The VietCong can be seen as a civil war with foreign intervention by the US and North Vietnamese. and if the intervention is sufficient to yield an 'international' conflict, why should it matter whether some players are non-state? in other words, either the position is that the Geneva conventions did not apply in anticolonial wars like the Vietnam War, or they should apply in the so-called War on Terror. the premise that the War on Terror is unique depends on quite ahistorical reasoning. many nonstate actors have fought wars within and across boundaries in the 20th century and its precisely such conflicts that the Geneva conventions are most important for.

ECS hits the nail on the head. Of course the Geneva conventions apply to the same state vs. belligerent groups scenarios we've seen across history, otherwise, everyone you want to torture is just given a new appellation: "terrorist", "enemy combatant", "al Quaeda" "al Quaeda in Iraq", "Viet Kong", etc. One must always remember to first question the underlying premise that underlies every decision made by a dictatorial tyrant such as King George. As ECS points out, "War on Terror" is a unilateral nonsensical slogan, especially when you realize that "Terror" can never walk into congress and sign papers of surrender. The same is true of "enemy combatants" - it's much like "free markets" - which let mortgage bankers "freely" engage in hucksterism and outright scandal - then come running to to the government to be "regulated markets" when they want to be bailed out with public money and want immunity from prosecution for crimes. The seizure of property, imprisonment without charges being levied against the accused, the requirement that a defendant can demand the witness appear and testify against him (no conviction on hearsay), the refusal of a right to counsel, the quartering of troops in homes - the very crimes we are committing across the globe in the name of this "War on Terror", are the very crimes our founding fathers fought against. When we wrote our constitution, the writ of habeus corpus and the Bill of Rights were not reserved only for US citizens nor only for times of domestic tranquility - they are most needed when the danger is highest, they are meaningless if we abandon them when times of unrest appear. Much like the "free speech zones" for protesters in political convention cities: I didn't know I was only allowed to exercise my right of controversial free speech when I'm penned in behind orange plastic riot fences and surrounded by riot police and attack dogs. Of course, if I say what the King wants, then I can speak anywhere...
What's next? Free religion zones for non-christians to be segregated? Free 4th amendment zones for people who are not wealth thy and born of royal blood to be cordoned off and searched?

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