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[Eugene Kontorovich, guest-blogging, April 22, 2009 at 12:36pm] Trackbacks
Rethinking the Hamdan Interpretation of Common Art. 3 in Light of Piracy Problem

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.

PubliusFL:

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.


So if the conventions had been adopted before the U.S. Civil War, the Confederate Army would have been fighting an internal civil war and subject to the protection of common article 3, but the Confederate Navy would would not? Or in Sri Lanka's civil war today, whether a rebel soldier is protected by common article 3 depends on whether he's regular Tamil Tiger or a Sea Tiger operating beyond Sri Lanka's territorial waters? Maybe so, but it's an odd outcome.
4.22.2009 12:54pm
Kontorovich (mail) (www):
Publius raises a good point. The Sea Tigers are an unusual example. Nonetheless, I believe both the Tamils and the Confederacy operated almost exclusively along the coast, and thus not in international waters. A rebel group wishing to fight a naval war would be unlikely to go far out to sea to sea engagement. So long as the action is within 12 miles of the coast, it will fall within the protection of common article 3.
4.22.2009 1:02pm
wm13:
That's not true about the Confederacy. Confederate commerce raiders (and privateers) operated on the high seas. As I recall, they not only drove the United States merchant marine from the Atlantic, they drove United States whalers from the Pacific, to the point that neither fleet ever really recovered. (Though industrial change was also a factor in the decline of whaling.)
4.22.2009 1:13pm
einhverfr (mail) (www):
There is precedent for this concern. In the Barbary War, the US treated captured pirates as POW's on the idea that the other side considered them legitimate privateers.....
4.22.2009 1:22pm
David Starr (mail) (www):
I fail to see any connection between Geneva Convention and pirates. Pirates are pirates, the Constitution empowers the federal government to suppress piracies. Captured pirates are not prisoners of war, they are pirates. To be dealt with as required by federal law. In the good old days pirates taken red handed were hung from the yardarm. Modern federal law is probably more wishy washy about penalties, but the pirates are still subject to US law as enforced by the US Navy.
4.22.2009 2:00pm
wfjag:
You're beginning to see some of the implications of the SCOTUS's intrepretation in Hamdan that Common Art. 3 applies to individuals and not the armed forces of signatory States. IF Hamdan is correct, then "pirates" cannot be tried in civilian criminal courts, since the GCs forbid treating as criminal acts the acts of belligerency or war that occurred prior to capture.

Although I think your analysis is the correct one, Hamdan's reasoning and holding knock that analysis on its head. It will be, no doubt, interesting to see how SCOTUS eventually distinguishes Hamdan, and how obviously pretextual the distinction is.
4.22.2009 2:27pm
Strict:

Nonetheless, I believe both the Tamils and the Confederacy operated almost exclusively along the coast, and thus not in international waters.


Are you for real?

That's not true about the Sea Tigers, either.

The Sea Tigers ran back and forth between ports in India and ports in Sri Lanka, from one country to another, and committing hijackings far out to sea. There were incidents that occurred 200, 300 nautical miles from the coast. How is that not in international waters?

Really, I'm not trying to be snarky. Can you explain how, in light of the clear evidence that the Sea Tigers operated in international waters, that they did not operate in international waters?
4.22.2009 2:29pm
Kontorovich (mail) (www):
I'll defer to others on the details of naval warfare in the Tamil insurgency. I do think that conflict is an outlier. I think it safe to say as a general matter high seas warfare that is not surprisingly quite rare in civil wars/insurgencies.
4.22.2009 3:16pm
DennisN (mail):
@ David Starr


I fail to see any connection between Geneva Convention and pirates. Pirates are pirates, the Constitution empowers the federal government to suppress piracies.


What if the Somali Government (an oxymoron I know, but someone in Somalia calling itself a government) declares that the pirates are state actors, or issues letters of marque? The claim has already been floated, that they are state actors. That could entitle them to POW status, but also would make them liable to War Crimes trials for taking, threatening, and potentially executing civilian hostages. They could, of course, claim that the captured civilians were simply interned for their own protection.

This action would certainly be casus beli, and could lead to a formal war against Somalia.


In the good old days pirates taken red handed were hung from the yardarm.


I'm not sure that ever happened outside Hollywood. The Guilty Bastards were given a fair trial ashore, then hanged.
4.22.2009 3:22pm
Strict:

I think it safe to say as a general matter high seas warfare that is not surprisingly quite rare in civil wars/insurgencies.


I think this is correct. Often a country is landlocked, or the rebels don't have the resources, or all the action takes place close to shore.

There were naval battles in our insurgency against the British - the American Revolution - but I think they were mostly coastal battles. There might have been some out on the high seas. Any history buffs know?

Same with Israel's War for Independence in 1948. Here's a story. Again, a coastal battle, not on high seas.
4.22.2009 4:02pm
PubliusFL:
An interesting test of this could come about in the context of a naval incident between the People's Republic of China and the Republic of China (Taiwan). Suppose, for example, a PRC warship detects a ROC submarine in the Taiwan Strait, interprets its actions as hostile, and manages to disable (or destroy) it, capturing its crew (or at least some survivors). What is their status?
4.22.2009 4:08pm
PubliusFL:
Strict: There were naval battles in our insurgency against the British - the American Revolution - but I think they were mostly coastal battles. There might have been some out on the high seas. Any history buffs know?

The bulk of naval action may have been in the 13 colonies' coastal waters, but there were quite a few engagements in the Caribbean and all the way across the Atlantic. Some Continental Navy captains operated out of French ports at times, and the USS Bonhomme Richard (under John Paul Jones) fought its famous duel against the HMS Serapis off the coast of Yorkshire, England.
4.22.2009 4:15pm
GEORGE LARSON (mail):
Another revolt with a serious naval dimension:

From Wikipedia:
The Dutch Revolt, Eighty Years' War or the Revolt of the Netherlands (1568[1]—1648), was the successful revolt of the Seventeen Provinces in the Low Countries against the Spanish Empire

Sea Beggars
In 1569 William of Orange, who had now openly placed himself at the head of the party of revolt, granted letters of marque to a number of vessels manned by crews of desperadoes drawn from all nationalities. These fierce privateers under the command of a succession of daring and reckless leaders, the best-known of whom is William de la Marck, Lord of Lumey, were called Sea Beggars, Gueux de mer in French, or Watergeuzen in Dutch. At first they were content to merely plunder both by sea and land, and carrying their booty to the English ports where they were able to refit and replenish their stores.
However, in 1572 Queen Elizabeth abruptly refused to admit the the Sea Beggars to her harbours. No longer having refuge, they made a desperate attack upon Brielle, which they seized by surprise in the absence of the Spanish garrison on April 1, 1572. Encouraged by this surprising success, they now sailed to Flushing, which was also taken by a coup de main. The capture of these two towns gave the signal for a general revolt of the Netherlands, and is regarded as the real beginning of Dutch independence.
In 1573 the Sea Beggars defeated a Spanish squadron under the command of Admiral Bossu off the port of Hoorn in the Battle on the Zuiderzee. Mixing with the native population, they quickly sparked rebellions against "the Iron Duke" in town after town and spread the resistance southward.
4.22.2009 4:39pm
PLR:
Echoing David Starr, it seems to me the Geneva Conventions were developed after WW II to lay down rules regarding the treatment of detainees, and not with a view toward granting rights to criminal defendants acting outside the territories of specific countries.
4.22.2009 4:46pm
Dilan Esper (mail) (www):
It will be, no doubt, interesting to see how SCOTUS eventually distinguishes Hamdan, and how obviously pretextual the distinction is.

Of course, had the Bush Administration taken any reasonable approach to the issue of the status of detainees in the Afghan and Iraq conflicts and the war on terror, we would have never needed to have a Hamdan.

When you have a legal rule with unintended consequences, it usually means that it was put in place to correct a gross abuse. And so it is with Hamdan.
4.22.2009 6:03pm
Peter Thomas (mail):
Interesting. You are just getting around to the idea that Hamdan is a result-oriented decision that wilfully mis-reads Common Article 3 to reach its conclusion? Shocking.
4.22.2009 6:18pm
Dilan Esper (mail) (www):
As I said, Peter, usually result oriented decisions are themselves a result of the political branches making some absolutely bad decisions.

Another example of this same phenomenon is Lawrence v. Texas. Conservatives hate Lawrence, but they had 20 years after Bowers to get sodomy statutes off the books and if they had done so, there wouldn't have been a Lawrence.

Hamdan may very well create all sorts of problems, but the Bush Administration and its supporters should have thought of that before going to the Supreme Court taking the position that no enforceable standard of treatment whatsoever governed the detainees.
4.22.2009 6:43pm
wfjag:

When you have a legal rule with unintended consequences, it usually means that it was put in place to correct a gross abuse because the court engaged in partisan, result-oriented decision-making or the Justices decided that in their wisdom they should legislate from the bench. And so it is with Hamdan.


But, you're probably right that the Bush administration should have followed a more reasonable approach -- something time-tested and accepted by customary international law when dealing with combatants who are captured not wearing a uniform: See Andre, Major. Attempting to create "rights" and "procedures" for such persons causes unitended consequences.
4.22.2009 6:46pm
PubliusFL:
Dilan Esper:

As I said, Peter, usually result oriented decisions are themselves a result of the political branches making some absolutely bad decisions.

Another example of this same phenomenon is Lawrence v. Texas. Conservatives hate Lawrence, but they had 20 years after Bowers to get sodomy statutes off the books and if they had done so, there wouldn't have been a Lawrence.


[Sarcastro]Similarly, argued the date rapist, if the victim had just put out for him, he would not have had to rape her. After all, he did pay for a nice dinner. Therefore, by not doing what she wanted she has only herself to blame.[/Sarcastro]
4.22.2009 6:57pm
PubliusFL:
Oops: "by not doing what HE wanted"
4.22.2009 6:58pm
Howard Gilbert (mail):
In the early days of the war the Hamdi and Rasul cases tested whether enemy soldiers (particularly when they held US citizenship) could be detained by the military absent explicit Congressional approval. The Court ruled that after Congress authorized military force, enemy soldiers could be detained under the common laws of war without an explict law. However, when Hamdan came around there was a cost to relying on common international law. The court then ruled that if the only basis for detention was the common law of war, then the terms of the detention were also subject to the law of war (including Geneva). Hamdan did not find that the Geneva conventions were self executing or that CA 3 could be enforced if a domestic law authorized the detention.

Piracy is a crime. The law has been on the books for about 200 years. The Constitution explicitly grants Congress the power to make that law on this particular crime. Hamdan then says nothing about this case and there is no conflict.
4.22.2009 7:09pm
mariner:
But, you're probably right that the Bush administration should have followed a more reasonable approach -- something time-tested and accepted by customary international law when dealing with combatants who are captured not wearing a uniform: See Andre, Major. Attempting to create "rights" and "procedures" for such persons causes unitended consequences.

Or: No good deed goes unpunished.
4.22.2009 7:25pm
Dilan Esper (mail) (www):
Publius:

It's offensive and absurd to compare a situation where President Bush decided to deliberately mistreat detainees to a situation where an innocent rape victim didn't do any such thing.

In any event, you and wf have also missed the point. Which is, the process I am describing is a REALITY. It may violate your standards of what judges should "properly" do, but trying to stop it from happening is going to be about as effective as stopping the sun from rising every morning.

Instead, if you don't want "judicial legislation", policymakers shouldn't set out to strip people of basic rights. Then the courts never have to get involved.
4.22.2009 7:25pm
Just an Observer:
This is an interesting theorectical question, but does it make any material difference? What protections would be afforded to captured pirates under CA3 that we would not afford pirates held as criminal suspects? CA3 still does not grant privileged POW status to anyone.
4.22.2009 7:47pm
Strict:

Strict: There were naval battles in our insurgency against the British - the American Revolution - but I think they were mostly coastal battles. There might have been some out on the high seas. Any history buffs know?

Publius: The bulk of naval action may have been in the 13 colonies' coastal waters, but there were quite a few engagements in the Caribbean and all the way across the Atlantic. Some Continental Navy captains operated out of French ports at times, and the USS Bonhomme Richard (under John Paul Jones) fought its famous duel against the HMS Serapis off the coast of Yorkshire, England.


Thanks Publius for this interesting piece of history.
4.22.2009 9:12pm
Anon21:
This strikes me as a moot point, inasmuch as piracy is considered a crime under international law and the national law of almost every state in existence. Pirates are thus not belligerents or combatants of any kind, but rather criminals. They are entitled to all the protections that any other criminal suspect would be under the laws of the state which captures them, but Geneva is inapplicable. In the case of a capture by U.S. forces, this places them in a more protected position than that of a combatant subject to Geneva.

Or am I missing something here?
4.22.2009 10:28pm
roan:
A pertinent and important (and thought-provoking) decision was rendered in this area just today (4/22), by DC District Judge Reggie Walton for his Guantanamo Bay habeas cases:

Bereft of any definitive guidance from the Supreme Court or the Court of Appeals for this Circuit on this point of law, the Court must attempt to ascertain for itself whether the President has the authority to detain individuals as part of its ongoing military campaign against the terrorist organization known as al-Qaeda and, if so, what is the scope of that authority. This memorandum opinion represents the Court's attempt to answer those threshold legal questions.2

[...]

The Geneva Conventions restrict the conduct of the President in armed conflicts; they do not enable it. And the absence of any language in Common Article 3 and Additional Protocol II regarding prisoners of war or combatants means only that no one fighting on behalf of an enemy force in a non-international armed conflict can lay claim to the protections of such status, not that every signatory to the Geneva Conventions must treat the members of an enemy force in a civil war or transnational conflict as civilians regardless of how important the members in question might be to the command and control of the enemy force or how well organized and coordinated that force might be.

[...]

In short, Common Article 3, Additional Protocol II, and the commentaries of the International Committee of the Red Cross all contemplate a division in the treatment of the members of an enemy's "armed forces" and civilians. Unless they surrender or are incapacitated, members of the enemy's armed forces are always "taking [an] active part in hostilities," Third Geneva Convention, art. 3(1), and therefore "may be attacked" and, incident to that attack, detained "at any time," ICRC Additional Protocols Commentary, supra, at 1453. "[C]ivilians who do not participate in hostilities," on the other hand, "should be spared" those consequences. Id. at 1443.

[...]

Thus, under Additional Protocol I, only "persons who receive and execute orders" from the enemy's "command structure" can be considered members of the enemy's armed forces. Sympathizers, propagandists, and financiers who have no involvement with this "command structure," while perhaps members of the enemy organization in an abstract sense, cannot be considered part of the enemy's "armed forces" and therefore cannot be detained militarily unless they take a direct part in the hostilities.

[...]

This result is also consonant with the intended purpose of Common Article 3. While its scope may encompass the transnational conflict at issue here, the article was drafted "to aid the victims of civil wars and internal conflicts." ICRC Third Geneva Convention Commentary, supra, at 28. As counsel for the government pointed out at oral argument on this issue, permitting a State to detain members of the armed forces of a non-state entity in a non-international armed conflict only when those members directly participated in hostilities, at least as that term is defined by the petitioners, "would encourage . . . armed groups to try to blend into the civilian population, which then necessarily subjects the civilian population to increased danger." Hr'g Tr. 63:11-14, Mar. 23, 2009. And the practical absurdity of the petitioners' approach is evident when one considers the impact such a standard would have had on the "civil wars and internal conflicts" experienced by this nation in the past.
4.23.2009 1:31am
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4.23.2009 3:35am
Kyle G (mail):
Anon21 is correct. When conducting Geneva analysis, you don't just jump into whether the armed conflict is of an international character or not to determined which portions of Geneva apply.

First, you have to address whether there is even an armed conflict under Geneva. Such an inquiry is based on many factors, and the intensity, scope, and duration of fighting are relevant.

Here, the intensity was virtually nonexistant, the scope was to rescue a hostage, and the duration was presumably a few hours. This is not sufficient to amount to an armed conflict under Geneva.

Thus, Geneva doesn't apply.

Prof. Kontorovich, under your analysis, any police action taken by one state against people not within that state counts as an armed conflict under Geneva. This is, however, not true. Interpol is not required to obey Geneva law because the actions they take do not constitute an armed conflict. Of course, this is inapplicable if Interpol does not employ enforcement mechanisms or capture individuals, but rather delegates such capturing to the host country. The point made above still stands, though.

Still, if the US went to Somalia and captured a criminal and brought him back to the US, this individual does not get Geneva protection because Geneva doesn't apply at all. Rather, he gets due process of law under US crim pro.
4.23.2009 8:59am
wfjag:

Anon21:
This strikes me as a moot point, inasmuch as piracy is considered a crime under international law and the national law of almost every state in existence. Pirates are thus not belligerents or combatants of any kind, but rather criminals. They are entitled to all the protections that any other criminal suspect would be under the laws of the state which captures them, but Geneva is inapplicable. In the case of a capture by U.S. forces, this places them in a more protected position than that of a combatant subject to Geneva.

Or am I missing something here?

Yes. Quite possibly you are. See the holding in the case linked by roan.


III. Conclusion

At first blush, the refinements made by the government to its suggested standard for detention appear to be of a minimal if not ephemeral character. Replacing a standard that authorizes the detention of individuals who "support" an enemy organization with a standard that permits the detention of individuals who "substantially support" that enemy doubtless strikes the casual reader as a distinction of purely metaphysical difference, particularly when the government declines to provide any definition as to what the qualifier "substantial" means. Indeed, the Court shares the petitioners' distaste for the government's reliance on the term "support" at all, laden as it is with references to domestic criminal law rather than the laws of war that actually restrict the President's discretion in this area. See Allison M. Danner, Defining Unlawful Enemy Combatants: A Centripetal Story, 43 Tex. Int'l L.J. 1, 9-10 (Fall 2007) (noting the heavy reliance of the government's "support" standard for detention "on concepts imported from domestic criminal law, particularly conspiracy and aiding and abetting").

Nevertheless, the Court is convinced upon closer inspection that the government's revised standard, as explained by the government in its memorandum of law announcing that standard and, most especially, during the oral argument held before this Court on March 23, 2009, comports with the laws of war as the Court understands them. The Court will therefore adopt the government's standard for detention as its own, subject to the interpretation of that standard provided by the Court above. However, the Court will strictly adhere to its interpretation of that standard in considering the specific cases before it, and therefore will not, in applying that standard on a case-by-case basis, deviate from the limiting principles articulated above. With that understanding, the Court concludes as a matter of law that, in addition to the authority conferred upon him by the plain language of the AUMF, the President has the authority to detain persons who were part of, or substantially supported, the Taliban or al-Qaeda forces that are engaged in hostilities against the United States or its coalition partners, provided that the terms "substantially supported" and "part of" are interpreted to encompass only individuals who were members of the enemy organization's armed forces, as that term is intended under the laws of war, at the time of their capture.21

20 The Court notes that the government's "substantial support" standard, as limited by the Court's interpretation of that standard set forth above, is not so different from the expansive "direct participation" standard advanced by the petitioners' expert witness. See supra, n. 15; see also Kleffner, supra, at 333 (recognizing that "[t]o construe membership in an organi[z]ed armed group as permanent direct participation . . . produces the same results" as treating all members of the enemy's armed forces as subject to detention). The latter approach, however, is "open to the objection that it conflates two conceptually distinct categories of persons—members of armed groups and others who directly participate in hostilities without being members of such groups—under one and the same heading of 'direct participation.'" Id.

21 The government also asserts that the President may detain individuals who substantially support "forces" that are "associated" with the Taliban and al-Qaeda. Gov't's Mem. at 2. The meaning of the term "associated forces," and the propriety of detaining members of such forces under the laws of war, were not argued in any detail by the parties and may not concern many of the petitioners with habeas corpus petitions pending before this member of the Court. The issue must therefore await resolution at a later date if that becomes necessary.

Slip Op at 47-48.

It takes very little to substitute "Somali pirates" for "al-Qaeda" under the court's analysis. However, as soon as that is done, the Somali pirates are no longer just a bunch of criminals, and under Hamden apparently have acquired some sort of Common Art. 3 status and rights.
4.23.2009 9:54am
Dilan Esper (mail) (www):
It takes very little to substitute "Somali pirates" for "al-Qaeda" under the court's analysis. However, as soon as that is done, the Somali pirates are no longer just a bunch of criminals, and under Hamden apparently have acquired some sort of Common Art. 3 status and rights.

This is just wrong, though. Hamdan (and the Geneva Conventions) only apply to captures of POW's (or enemy prisoners claimed not to have POW status). The option to treat the pirates as "a bunch of criminals" always exists-- as does the option to treat Al Qaeda as "a bunch of criminals". You can arrest them, render them to the US, and give them a fair trial. It's only when the government exercises war powers and invokes wartime detention powers that Hamdan kicks in.
4.23.2009 3:03pm
wfjag:

It's only when the government exercises war powers and invokes wartime detention powers that Hamdan kicks in.

Only the government can invoke detention powers? I've seen nothing that implies that the detainee cannot assert coverage by Common Art. 3. You assume way too much. Rather, in the Gherbi v. Obama, and other Gitmo detainee cases the USDC decided April 22d, the court noted that

despite the years that have passed since these habeas corpus petitions were filed, the state of the law regarding the scope of the President's authority to detain the petitioners remains unsettled. Bereft of any definitive guidance from the Supreme Court or the Court of Appeals for this Circuit on this point of law, the Court must attempt to ascertain for itself whether the President has the authority to detain individuals as part of its ongoing military campaign against the terrorist organization known as al-Qaeda and, if so, what is the scope of that authority.

Slip Op. at 5-6.

So, there is authority that the government can assert that its detention is in accordance with its powers relating to international conflicts, although the detainee is not the member of an armed force of anything resembling a nation. This does not address the Somali pirate issue. There are no decisions and so there is nothing preventing the detainee from also asserting that the detention is under those same powers. If successful, then the detainee can defend a criminal prosecution on the grounds that the actions leading to his detention cannot be prosecuted criminally as that is forbidden by codified international law because an act of war or belligerency by an individual cannot be punished by criminal sanction.

That is the type of chaos that Hamdan causes.

Sorry you don't like the result, Dilan, but, that's what happens when partisanship or arrogance are substituted by judges for intrepreting the law. IMHO, Hamdan is what is wrong and should be overruled as soon as possible. But, somehow I think that the phrase "fat chance" applies to that idea. Accordingly, I expect to see a transparently pretextual distinction made when the SCOTUS addresses the issue in a Somali-pirate type situation (or, maybe in a case like Gherbi, when the defendant has a different name than the named defendant in Hamdan).

Then again, I'm not sure that other nations are dealing with the situation any better. France has turned over some pirates to Kenya* , Canada is engaging in catch and release, and apparently the UK forces have been instructed not to detain as the "pirates" may be able to claim asylum under the UK's laws. So, if looking to transnational legal standards is of any guidance, the Somali pirates appear to find additional support for a claim of entitlement to Common Art. 3 rights and procedures.

*although the pirates who the French detained, who had taken the yacht in which the hostage was killed when it was re-taken, were taken to France for trial. Still, this may be due to somewhat unique facts. It looks to be factually easier to allege that taking a yacht and holding a small child hostage are the acts of criminals. Further, it can be contended that the death of the hostage was a crime that international law allows criminal prosecution for. These facts may distinguish that case form those in which a commercial ship is taken and adult crews are held, but there are no deaths.
4.23.2009 4:18pm
dmv (mail):
I think there's little doubt that the principles of Common Article 3 apply. They are widely accepted as minimum applicable standards. They are recognized as being part of customary international law.

But that CA3 applies has, indeed, very minimal consequences. What does CA3 require?

That a person be treated humanely. That they not be murdered, mutilated, cruelly treated or tortured. CA3 proscribes taking of hostages, humiliating and degrading treatment, and the passing of sentences &carrying out of executions without previous judgment by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

That's pretty much it.

So, darn, we can't go and murder or mutilate the pirates. If they fight, we can fight back, certainly. If they get dead in the process, them's the breaks. But once we capture them, yeah, turns out, we can't just summarily execute them. Them's the breaks.
4.23.2009 8:45pm
Dilan Esper (mail) (www):
Only the government can invoke detention powers? I've seen nothing that implies that the detainee cannot assert coverage by Common Art. 3.

Any detainee can assert anything. But if you are in American federal detention center facing a grand jury indictment for piracy (or terrorism), you aren't going to able to claim POW status because the government is not asserting its authority to detain you as a prisoner in an armed conflict.

If successful, then the detainee can defend a criminal prosecution on the grounds that the actions leading to his detention cannot be prosecuted criminally as that is forbidden by codified international law because an act of war or belligerency by an individual cannot be punished by criminal sanction.

This is quite wrong. It is true that lawful combatants (and perhaps unlawful ones) have immunity for prosecution for acts of violence within the scope of the armed conflict. But pirates have, for at least 200 years, been treated as hostis humanae generis, which means that their actions have never been considered to be within the scope of combatant immunity.

Similarly, terrorists who target civilians can't claim combatant immunity either.

That is the type of chaos that Hamdan causes.

Not only does Hamdan not prohibit the government from trying terrorists, it ENCOURAGES it. Indeed, that's the whole point. Ship these people off to federal court, indict them, and try them. It's the attempt to circumvent this (which was done for the purpose of facilitating the Vice President's desire that the government commit egregious war crimes against the detainees) that led to the problem that Hamdan sought to solve.

Sorry you don't like the result, Dilan, but, that's what happens when partisanship or arrogance are substituted by judges for intrepreting the law.

You know, people who say things like this are clueless. As Justice Holmes said, law is not a brooding omnipresence in the sky. The Hamdan court was confronted by a lawless administration who was abusing detainees and seeking to avoid any legal accountability for it. So they took a stand and said "you can't do this". Another administration that was not acting badly could have obtained more power.

Why? Because courts look at the real world implications of the competing interpretations offered for an ambiguous positive law such as the Geneva Conventions. Conservatives who babble about judicial "arrogance" and "partisanship" are simply completely unaware that interpretation IS NOT THAT SIMPLE. Conservative ideas about judging may be simple-- actual judging, alas, isn't.

And further, conservative politicians like Bush and Cheney had no business assuming that they could do whatever they wanted and the courts wouldn't stop them. If you want power, you have to establish that you are trustworthy. Bush and Cheney never did.
4.23.2009 8:50pm

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