29 June 2006

Treaty Obligations, Hamden, al Qaeda and the Supremes

The Supreme Court of the United States has ruled against a military tribunal for the captured Yemeni Salim Ahmed Hamden, a chauffeur for Osama bin Laden, while in Afghanistan by US Forces. Transferred to Guantanamo, Hamdan challenged the authority of a tribunal to decide if he was or was not an unarmed combatant and should be held for military tribunal. To this is the following citation of the Geneva Conventions, looking at them at the genevaconventions.org website [italics mine]:

Customary Laws

The following are rules applicable in all conflicts, regardless of whether the countries in question are signatories of the Geneva Conventions and regardless of whether the warring party in question is recognized as an independent state. Warring parties must obey the rules spelled out in the common article 3 of the Geneva Conventions, which requires that prisoners of war and wounded combatants be protected from murder; discrimination based on race, religion, sex, and similar criteria; mutilation, cruel treatment and torture; humiliating and degrading treatment; and sentencing or execution without a fair trial.

In addition, the following are forbidden towards any persons in an area of armed conflict:
  • Torture, mutilation, rape, slavery and arbitrary killing
  • Genocide
  • Crimes against humanity which include: forced disappearance and deprivation of humanitarian aid
  • War crimes which include: apartheid, biological experiments, hostage taking, attacks on cultural objects, and depriving people of the right to a fair trial.
Now Common Articles also get mentioned, specifically 2 and 3 by the Court, so here they are [italics mine]:

Art. 2. In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

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.

Art. 3. In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions: (1) 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, 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. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular, humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. (2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.

The Parties to the conflict should further endeavorour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.
Fascinating stuff! So here is how it goes... al Qaeda is a not a recognized independent State nor is it an 'armed force' of any State or non recognized State. In point of fact al Qaeda is no State at all, but a group of individuals using terror across multiple States to gain their ends. And they categorically REJECT the Geneva Conventions.

Although the Supreme Court finds the non-State recognition persuasive, it presumes that this non-recognized independent organization is a State. The Geneva Conventions, as later noted, are amongst States and non-recognized independent States. In other words, these folks have got to have land under their control and a system of rules of conduct to fall anywhere close to the State based categorization system. All of the Geneva Conventions were drafted with State-based conflicts in mind and with groups, such as guerilla organizations declaring a State but having no international recognition of same, as covering these things. To include entities who are actively AVOIDING becoming a State so as to refuse any State based obligation is to give them much higher recognition than is allowed by the System of Nation States and Treaty obligations. The Taliban, by raising a flag and declaring a State DO fall under this, but al Qaeda and all other Transnational Terrorist organizations do not. Without a State al Qaeda can not even become a Contracting Party to the Conventions.

Further in Article 2, which enjoins that if only one Party to a conflict is a signatory that it shall be bound by these conventions, it does not address the fact that the other side may not be considered a 'party' because it lacks not only recognition but the ability to Contract and BE a party to ANYTHING. al Qaeda scoffs at all laws and treaties between Nations and does not believe in the Nation State, save as a necessary and temporary tool to its global goals. By reasoning that al Qaeda has State based legitimacy to become a Contracting Party is to flout all diplomacy that has been built up over the past 150 years or so.

So Article 2 is uncompelling to my eyes in that area.

The Supreme Court, however, in ruling this way has now ruled that al Qaeda is the equivalent of a non-recognized State. Perhaps we can send diplomats to them, now?

On Article 3 plus 2, note the conflict taking place on the soil of a Contracting Party. The Taliban wasn't and so Afghanistan is not such a place. Now, here is what the Supreme Court has to say on this [bolding mine]:

"4 (c) (ii) Alternatively, the appeals court agreed with the Government that the Conventions do not apply because Hamdan was captured during the war with al Qaeda, which is not a Convention signatory, and that conflict is distinct from the war with signatory Afghanistan. The Court need not decide the merits of this argument because there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not between signatories. Common Article 3, which appears in all four Conventions, provides that, in a "conflict not of an international character occurring in the territory of one of the High Contracting Parties [ i.e., signatories], each Party to the conflict shall be bound to apply, as a minimum, "certain provisions protecting" [p]ersons "placed hors de combat by" detention, "including a prohibition on" the passing of sentences " without previous judgment " by a regularly constituted court affording all the judicial guarantees " recognized as indispensable by civilized peoples." The D. C. Circuit ruled Common Article 3 inapplicable to Hamdan because the conflict with al Qaeda is international in scope and thus not a "conflict not of an international character." That reasoning is erroneous. That the quoted phrase bears its literal meaning and is used here in contradistinction to a conflict between nations is demonstrated by Common Article 2, which limits its own application to any armed conflict between signatories and provides that signatories must abide by all terms of the Conventions even if another party to the conflict is a nonsignatory, so long as the nonsignatory "accepts and applies" those terms. Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory who are involved in a conflict "in the territory of" a signatory. The latter kind of conflict does not involve a clash between nations (whether signatories or not). Pp. 65-68.
(d) Even assuming that Hamden is a dangerous individual who would cause great harm or death to innocent civilians given the opportunity, the Executive nevertheless must comply with the prevailing rule of law in undertaking to try him and subject him to criminal punishment. P. 72."
So, even though this conflict took place in a non-signatory State, that being Afghanistan, the Conventions do apply to those who are and are not signatories. And the Supreme Court asserts that this holds into clashes between signatory and non-signatory Nations, which is correct. al Qaeda may not be a Contracting Party under the basis of the Conventions themselves, however, and so are combatants not only of a non-signatory group but cannot be considered to be able to be a part of any signatory organization. Article 3 clearly covers those individuals who are combatants of outlaw Nations, such as the Taliban, who have direct jurisdictional accountability to their Nation and also combatants that adhere to an unrecognized State. al Qaeda does not qualify for this by its outlay and composition, and so any individuals fighting for al Qaeda are doing so in a status not covered by these Conventions.

The problem is not one of falling on one side of a conflict or another. That is clearly demarcated by the Conventions.

The problem is that al Qaeda falls COMPLETELY outside of this framework. To be inside this framework al Qaeda must have the level of stature granted to non-recognized Nations. To be able to be part of this framework one must be part of an organization that can become a Contracting Party and that is what the Court has done.

There you have it, folks. The Supreme Court of the United States has ruled that al Qaeda shall be afforded all of the benefits of a Nation, even a non-recognized Nation, without having any of the fundamentals to actually *be* a Nation.

And since they have further ruled that al Qaeda combatants are to be considered for Civil Trials and not Military Tribunals, they are now outside the jurisdiction of the Armed Forces for prosecution and all the rules of evidence now apply to the Armed Forces when capturing al Qaeda. I hope they trained our troops in the collecting of battlefield forensics... or we could just shoot them on sight as SPIES, which they are also under the rules of War by wearing no uniform and adhering to no State and mis-representing themselves on the field of combat and elsewhere.

Which court system gets to hear these things? Now here is the part that has NOT been considered. From the Constitution Article III, Section 2 in whole [bolding mine]:

"Section. 2.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;-- between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."

Well, it seems that the United States, being a Treaty Signatory and having a beef with individuals who are now of a recognized entity that has the same level as a State should go DIRECTLY to the Supreme Court without any intervening Courts. Why? As there is no original jurisdiction for these cases, starting overseas via the Geneva Conventions and that these individuals have been ruled to be of a State level entity that has no Treaty obligations AT ALL, there is only one set of people in the United States that have, at their fingertips, relevant necessary relevent power as these things have NOT been administered by via Treaty with them.

And that is the Supreme Court of the United States.

Thanks for volunteering! I hope you all get nice travel arrangements to Cuba!

While that last is partly in jest, that is also partly dead serious. The Supremes should get it by the old: "You broke that cookie jar, now you get to sweep up the remains".

The remedy for this is to do what I suggested the President do when he first went before Congress after 9/11:

Ask Congress to declare war on every terrorist organization or other organization that has rhetorically declared war on the US and start that dating back to 1945.

The Supreme Court takes that this is allowable via their ruling.

As they have made this clear, so it should be done.


Bloviating Zeppelin said...

Kurt: I almost do not have any comment to make. I am that incensed. I am going to take time to step back and collect my thoughts before producing another post about this issue -- though I have made one post about it now.

I just need to take a breath and step back for a bit, acquire some perspective.


A Jacksonian said...

Mr. Z - I know that exact feeling... however, I tend to gain focus and on this topic the Supreme Court has made a grave error in giving any credibility to al Qaeda. By juxtaposing them into the Geneva Conventions, the entire structure of how Nation States interact is put at jeopardy.

The Framework of the Geneva Conventions is clearly stated to be that of Nation States and non-recognized States. No where does it afford a single thing to non-Nation based organizations.

It is, in a word, awful, no matter what else is said in the decision.

Eric said...

The argument is based on Common Art. 3.

Afghanistan IS a High Contracting Party to the Geneva Conventions. It ratified them in 1956. The Taliban did not repudiate the Geneva Conventions--nor could they have, even if they had wanted to, because they were never recognized by the international community as Afghanistan's legitimate government.

Therefore Common Article 3 applies in Afghanistan, and alleged Al Qaeda terrorists on that territory, like any other human being present in a conflict occuring in the territory of any Geneva Convention Party, have the minimum right to a lawful determination of their status and conduct before they are imprisoned or strung up or whatever.

This also means that your comments about the Supreme Court in Hamdan treating Al Qaeda as a "nation" are completely unfounded and irrelevant.

A Jacksonian said...

eric - Indeed, Afghanistan *is* a high contracting power and under the GC. Thus the Taliban get full protection by the GC.

al Qaeda, by your definition, has rights to exercise all sorts of warlike acts on any Nation state and have no military recourse against them. al Qaeda, however, rejects being a Nation state and does not hold themselves to the system of Nation States. Thus, you would have us make al Qaeda liable to the same treatment of its individuals due those of Nation States, even unrecognized ones.

al Qaeda, by adhering to NO agreements between itself and the Nation State system, operating outside of that system, and giving no credance to that system has made individuals involved with al Qaeda outside of the common bounds of the GC by those actions.

The Geneva Conventions, to be meaningful, must address those that are bound within the system it supports: the Nation State system. To give aid and comfort to those who are seeking the demise of that system via the use of the laws set up to protect *innocents* and curb wanton cruelty in warfare cannot be found to be within the guiding principles of the Geneva Conventions.

By carrying no flag, wearing no uniform and having no allegiance to ANY Nation, al Qaeda and all other non-uniformed combatants operating in the field of military affairs during actual operations get only one treatment: death.

To do otherwise is to give them more recognition than they seek and more than is afforded by civilization since the Peace of Westphalia. By acting as they DO, al Qaeda gets no consideration under the GC. And the Supreme Court to rule otherwise raises them to the level of a Nation State.

That is an abominationn of the system of international diplomacy that ALL Nations must abide by. al Qaeda could have taken the honorable route of Guerilla warfare, raising a flag, declaring their government and giving a structure that they would be held accountable to. They have not done so and do not want to do so. By not doing these things they are NOT afforded the treatment of Nationals of States when they take to the battlefield or perform acts of terror.

The Geneva Conventions has a FRAMEWORK. By acting outside that framework, one does not get the benefits OF IT.

Eric said...

First, you misunderstand the purpose of Common Article 3, which was *precisely* to apply to situations that did not fall neatly within the Westphalian State system. Recall that the modern Geneva Conventions were enacted after the founding of the UN and World War II, which was an example of how the classic Westphalian system could fail cataclysmically.

By expressly stating that it applies to "armed conflict not of an international character" (AKA conflict not between states) it is clear that the express purpose of Common Art. 3 is to regulate the duties of states in situations falling outside of structured combat between the uniformed militaries of two states. That is, civil wars and operations against insurgents and irregular forces such as, yes, terrorists. This is also why Common Art. 3 places a much lower standard on states than those parts Geneva Conventions that are applicable to prisoners of war who are members of the the uniformed military.

What Common Art. 3 says, in effect, is that if a state signs them, there is an absolute baseline floor of conduct according to which their militaries will abide whenever they are operating within a Geneva Convention jurisdiction--*including their own.* Therefore it is inaccurate to conceive of the Geneva Conventions, in particular Common Art. 3, as merely a diplomatic bargain between states.

The Geneva Conventions are not a contract, whereby one side is relieved of their obligations if the other side defaults. Instead, it sets down the laws or conventions of armed conflict, or the obligations that are binding on all participants of such conflicts, but in particular on members of the professional military, regardless of whether the other "side" abides by them or not.

Second, I think you may have understood the role of the discussions of the Geneva Conventions in Hamdan. The Supreme Court discussed the rights afforded by the Geneva Conventions in this case not because it was these international law norms upon the United States in a self-executing fashion. Instead, it discussed them in the context of their application as part of the laws of war by the Uniform Code of Military Justice, which was duly enacted by Congress under its power to make rules concerning the military under Art. I, s.8 of the United States Constitution.

You view this decision as illegitimately providing Al Qaeda with rights. But professional members of the military see it completely differently. This issue is not about Al Qaeda's rights. It is about the duties of the professional military, which has always faught and proceeded against its enemies according to the rule of law, *regardless of whether their enemies obey these rules or not.* The laws of war are more than about giving rights to the other side so as to ensure that they will accord them to our side if they capture some of ours. They are also about maintaining the duty, honor, and discipline of the professional military, which its members maintain even when engaged in conflict against an opponent that respects none of these norms.

This is why career members of the JAG opposed the irregular military tribunals that Hamdan struck down. It understands it has a duty to proceed in accordance with the laws of war. The rights of the accused, in this case, are actually derivative of the obligations binding those persons who have sworn to execute military law. No one in the United States military who is worthy of his or her uniform and the honor that accompanies, and in particular no one in the JAG, thinks it is acceptable for its members to summarily execute individuals they have captured in any zone of conflict. Simiarly, most members of the JAG think it highly improper for the executive to distort their clearly delineated duties for political purposes. This is above all what the Bush Administration and its supporters--in particular those who have never known the honor, duty, and responsibility of conscientiously serving in the armed forces completely fail to appreciate: this has far less to do with the rights of terrorists or alleged terrorists and far more to do with the integrity of the United States and the United States military. And I am relieved to see that Justice Stevens--a Bronze Star combat veteran in the Second World War--has helped to uphold this integrity against those in the executive who would denigrate it for the purposes of ideology.

A Jacksonian said...

eric - To state that GC Common Article 3 is to cover *precisely* this problem then begs the absolute and positive question of 'Why did it have to be amended in 1977 to COVER this question?' Assertion of that Article 3 covers this when a separate meeting was convened to ADDRESS this directly is just that: an assertion. Plainly the Article 3 language did *not* cover this area in 1977. Further the US did *not* sign up for the 1977 additions as it is not within the Powers vested in either the Executive nor the Legislative to make treaties covering Non-Nation State military organizations as a comprehensive whole. In point of Fact the Constitution gives Congress a non-Nation State, although Nationally directed Non-Nation State military authority in its Letters of Marque and Reprisals language. As that is set up as needed by Congress, under Congressional rules for given problems, any Treaty or similar that would in any way limit this Congressional Power is unconstitutional. Thus the 1856 Declaration of Paris is unsigned by the United States as it would infringe upon Powers only given by the People to Congress. Thusly the 1977 GC addition to put Non-Nation State actors within the GC Framework is not signed by the United States, in addition to any other problems it has, such as giving far too much recognition to terrorists and validity to military activity against States that are not overseen BY States. Finally, Article 3 cannot cover terrorists as, having no Nation, no government and no ability to be a High Power to the GC, they can get NO recognition BY it.

Thus the verbiage with "armed conflict not of an international character" is read WITHIN the Framework of who may and may not sign the actual GC. This covers Civil War and it certainly needed to be addressed by the GC so that those rebels who raise a flag, declared a Nation and brought about a system of government and gave insignia or uniform to their soldiers would be COVERED by the GC. It does not, and cannot be read to mean, covering terrorist activities *anywhere*. Inside of a conflict area or outside of it, terrorist activities and terrorism is illegitimate warfare not guided by Nation States and not adhering to National recognition or beholden to the rules of war. To do such an extension is a slur on the honor of raising a legitimate government against a current ruling one within its own territory by equating them with mere terrorists. To claim that individuals that fall outside of the GC Framework are to be accorded such status is to give them de facto recognition of being a High Signatory Power, which is a Foreign Policy matter vested between the Executive and the Legislative. By the pre-1977 Framework terrorists are not: State based or accepted actors for States, they are not legitimate military organizations having no State oversight or control, and they are not civilians or other protected persons OF Nation States. The GC covers ALL of those and terrorists fit NONE of them. Any foundational argument for this case that cites the GC as in some way working in regards to terrorists falls flat. They are *not* covered under the Framework. Terrorists *only* get what we give them and are due for nothing more in my view, and you may declare it wrong-headed, but then need to address the problems that I see with the ruling and the fact that the very understanding the Supreme Court puts forth is *not* within what the US has signed onto via Treaty.

So, in my view, the GC may not address terrorists for the United States and its Armed Forces, regular or irregular via those Articles in the GC and are thusly limited to those things purely given via the UCMJ to Congress. Terrorist have no 'side' as they have no territory, no population, no government, no set of laws, no way to seek recompense against them and will fly no flag or wear no uniform to identify themselves. Their side is Death to those they do not like. And even truer that since the GC is not a contract that one cannot default on it... that presumes that one can be COVERD under the GC Framework. Terrorists may NOT. Thusly if it guides Our actions it is only via Congressional rules of war set via the UCMJ. The GC may not be invoked as covering terrorists, as the US has not signed onto that, and any attempt to read Foreign Policy otherwise, after explicitly rejecting verbiage that would have done just that, is an over-reach by the Supreme Court.

As you so rightly note, and yes, I do read the Constitution, but perhaps with stress on its layout and functionality as in interlocking system, that Congress does get to set the UCMJ, how the military is funded and such for the Nation, including State's Militias and the irregular forces that it may bring together via the Letters language. Execution of those military laws is done via the actual military under control of the Executive Branch. The UCMJ is expected to codify those things that are required by Treaty along with normal rules of warfare and other things, such as what is to be done with terrorists. I would have been more than happy and gleeful if the Supreme Court, in all of its wisdom, had left *out* the GC in this case and did not leave it for critics to confound and vituperate upon and, instead, just ruled on judicial procedure as given within the UCMJ. And with that tossed that back to Congress, basically saying: 'Your problem, write a better set of laws'.

As it stands these captured individuals who have taken up arms against the United States by adhering to no Nation and having no National oversight in that usage, and in not being legitimate National non-combatants, are not within the currently standing UCMJ code. Plus, by blocking any attempt by the Administration to move them en mass to the CIVIL side, has been told: 'They are a military problem, deal with it'.

That is how I would accept those two rulings, shorn of the niceties of the GC via the full understanding that no reading of the GC as signed off on by a President and ratified by Congress can cover terrorists. The Supreme Court, in such a poorly written and enunciated ruling, did not do that nor keep the honorable follow-on that I have outlined. Those would have been fully and completely satisfactory to me. Congress writes the rules, the Executive executes them and the Supreme Court can find either or both wanting, outside of ANY part of the Geneva Conventions via the UCMJ alone in regards to terrorists.

Now, I have actually served the Civilian side of the DoD for over a decade and have rubbed shoulders, had conversations with, talked to and respect highly the US Armed Forces. They are stuck in a battle that they are not set up to fight within the confines of the interplay of powers within the Constitution and are doing their damnedest to deal with those strictures and *not* break them, while staying alive at the same time. They are the strongest, most ethical and most effective fighting force on the planet, bar only the Gurkhas. So I am not saying ANY of this to undermine the US Armed Forces nor to in any way besmirch them.

I do honor previous service in the Armed forces and have donated most of my useful goods to them as I am beyond their need in life. Further, I give what I can to those organizations of my choice that support the military and its operations and the needs of the people at the pointy end. They DESERVE that and so I give it. Those that continue to do honorable duty and honor their commitments and *not* employ it as a political or ideological club, I give those great and high honor. All of that said, service, especially active and combat service, does give each individual a prism on their viewpoints. Judge Stephens, coming from the INTEL side of things will have his own viewpoint on his active service and the role it played in WWII. I am extremely glad he did not try to bring that up, as that would have been a dishonorable thing to do. What that does *not* get him is a pass as citizen Stephens, appointed to the Supreme Court, on affairs military. I honor his past service, but it is no free pass on the decisions of the Republic in this area.

I understand *exactly* the role the JAGs play in defining military affairs and coordinating the UCMJ between services and how it helps the adjudication process. I know this from talking to those same folks who have been at the pointy end of things. I appreciate it greatly and honor them that hard work which I would wish upon no one. They are, quite frankly, stuck in a mindset from the Cold War, as much of the center echelon of the Pentagon is. All of these folks need better directives from the Executive and better direction from the Legislative. We are not set up to deal with terrorism as currently composed in Foreign Policy, Domestic Policy, National Security Policy, force adjustment and allocation, changing needs of the combat space environment, and exercising the full war powers of the Legislative and the Executive to keep this Nation whole. This Nation needs those things and the military especially, and I see its lack as a broad and systemic problem of which this case is only a single instance.

As you can guess I am no adherent nor sycophant to either Party in Congress and judge the President on his actions or lack of same. I am less than joyful over this Supreme Court decision (and some number of others in recent years) and that, combined with the problems from the Legislative wishing to bar investigation into it and the Executive not properly defending the Nation, all of which I am calling the TRIFECTA which is part of the Zero Party State. Each of these branches of Government are having deep problems of jurisdiction, overreach and neglection of duties to this Nation. I have clearly stated here and elsewhere that I will vote for NO sitting member of this Congress for any elected office ever again because of these actions and, worse, inactions in defense of this Nation.

So, you may not like my analysis, but it is consistent with the Constitution, division of powers, accountability between the branches of Government, adheres to only those Treaties that have actually been signed, refuses the language and meanings that have been refused by the Executive and Legislative and, further, recognizes that the military is honorable in all that it is doing but is stuck in a position that it should never have been put in to start with.