Over at OpinioJuris, Duncan Hollis asks whether captured pirates might be entitled to the protections of Common Article 3 of the Geneva Conventions. I address the problems posed by the Geneva conventions to piracy prosecutions in my forthcoming essay, pg. 21-27. Forget Article 3, I wrote; the pirates have a weak but colorable claim to prisoner of war protection, or at least an Article 5 hearing. (See pgs. 21-27).
However, in thinking about a problem with applying common article 3 to Somali pirates noted by Prof. Hollis, it occurred to me that the problem reveals a difficulty with the Supreme Court's interpretation of the provision.
In Hamdan v. Rumsfeld, the Court ruled that Common Article 3 of the Geneva conventions Geneva Convention, dealing with "conflict not of an international character occurring in the territory of one of the High Contracting Parties." The Administration had argued that this was not applicable to conflict between the U.S. and a foreign non-state group because such a conflict was international. Common article 3, in this view applies purely to internal (civil) wars.
The Court however ruled that "international" only means between two sovereign states. Because the United States is not fighting a country, it is not a conflict with an international character. See Part VI.D.2 of the opinion. (This is somewhat ironic in that modern international law sees its subject as not just relations between nations, but between nations and individuals.)
The pirate question calls into doubt the Court's construction. The Geneva Conventions apply in full naval operations and the high seas. Indeed, the Second Geneva Convention focuses on "members of the armed forces at sea," and questions of shipwrecks and so forth. Because Common Article 2 does not limit application to "the territory of one of the high contracting parties" there is no problem applying the conventions to operations on the high seas.
Yet operations on the high seas are currently excluded by the plain language of common article 3. In the interpretation given to it by the Court, if the United States was fighting Al Qaeda on land some, Geneva Convention protections would apply. If they are fighting Al Qaeda — or pirates — on the seas, there is not the minimal common article 3 protection. Given That the Geneva Conventions As a whole are equally solicitous of naval combatants and land combatants, it is hard to believe that article 3 would completely abandon the interests of the former. The most obvious way of resolving this paradox is to say that common article 3 is designed to deal with internal civil wars. Once the campaign is waged on the high seas, it is by definition of an international character and outside the scope of article 3.
In a conflict between a nation and an internal armed group, both sides will not have warships that will encounter each other in international waters, and thus the territorial limitation does not harm. In other words, the best way to make sense of it is to say that Common Article 3 applies neither on the high seas nor on land in conflicts between an armed group and a foreign power.