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Hamdan, Common Article 3 and the True Spirit of the Law of War

JURIST Contributing Editor Geoffrey S. Corn, Lt. Col. US Army (Ret.) and former Special Assistant to the Judge Advocate General for Law of War Matters, now a professor at South Texas College of Law, says that the US Supreme Court's finding in Hamdan v. Rumsfeld that Common Article 3 of the Geneva Conventions applies to US military operations against al Qaeda restores a broad approach to basic law of war doctrine long held by US military lawyers....

The Supreme Court has spoken on military commissions, and contrary to the determined assertions of the Bush administration, the Court concluded that the method chosen by the President to try captured al Qaeda operatives at Guantanamo was anything but "full and fair." The stark deviation from well-established procedures of the military justice system, coupled with the overreaching charging efforts of the government (see Professor David Scheffer's JURIST commentary), proved fatal to the President's policy. While it is certainly possible that some alternate method to try the Guantanamo detainees may ultimately emerge from the ashes of Military Order Number 1, as a defense lawyer for a different detainee pending trial before that commission said to me, one thing seems certain: this process is over.

The significance of the decision almost certainly transcends the narrow issue of military commissions, however. Commentators are already noting its impact on, among other issues, analysis of executive power; the obligation to comply with customary international law; and the role of Congress in war-related decisions. It is its potential impact on defining legal obligations related to armed conflict that I will address here.

For at least three decades prior to the attacks of 9/11, U.S. military lawyers assumed as an article of faith that the principles reflected in Common Article 3 to the Geneva Conventions were applicable to all armed conflicts, no matter where they occurred or who they involved. This assumption provided the foundation for all law of war related policies within the Department of Defense. In fact, this baseline standard of humanitarian treatment was extended by policy to all military operations, even those that did not fit within the "armed conflict" paradigm.

These law of war practitioners always knew that the plain language of Common Article 3 indicated application was limited to non-international armed conflicts occurring within the territory of a High Contracting Party. However, this plain language did not undermine an assumption of applicability across the spectrum of military operations. Instead, the logic of treating Common Article 3 as a default standard applicable to any armed conflict — a logic reflected not only in the commentary to the article but also domestic and international jurisprudence — rendered such application virtually unquestioned.

The interpretation of the law of war proffered by the Bush administration in the months following 9/11 rejected this fundamental assumption. Instead of endorsing a broad application of the principles of Common Article 3 as a matter of legal obligation, a narrow interpretation of applicability, based on the plain language of the article, resulted in a determination that although the military operations against al Qaeda qualified as an armed conflict, the baseline humanitarian principles reflected in Common Article 3 were inapplicable because of the "international" scope of the conflict.

This interpretation perplexed many experts in the field, both military and civilian. Unfortunately, this interpretation prevailed in analysis of legal obligations related to military operations directed against al Qaeda. While many experts have challenged the predicate conclusion that such operations can even be considered an armed conflict within the meaning of international law, the most troubling aspect of this conclusion for the lawyers working within DOD was how it undermined the symmetry of the law of war. By "interpreting out" of Common Article 3 obligations, the Bush administration essentially invoked the authority of the law of war without accepting the limits established by this law.

A plurality of the Supreme Court concluded in Hamdan that the United States is bound to accept "the bitter with the sweet." The analysis of Common Article 3 was limited to its impact on the validity of military commissions. However, the message was far more significant. By concluding that invocation of the authority of the law of war to establish a military commission included the requirement to abide by the obligations of that same law in the process for the commission, the Court endorsed a restoration of the symmetry of the law of war. Necessity cannot be invoked without accepting the constraint of humanity, which is exactly how the Bush administration has interpreted the law. By rejecting this interpretation of the law of war, the Court endorsed the pragmatic interpretation of the Geneva Conventions that ensures that no "armed conflict" falls outside the law — an interpretation that has guided U.S. military operations for decades. Common Article 3, according to the Court, is binding on the United States in the armed conflict with Al Qaeda as a matter of treaty obligation. While many experts object to the characterization of the fight against al Qaeda as an armed conflict, at least this interpretation ensures that the balance between authority and obligation so central to the law of war has been endorsed by the highest court in our land.

In restoring this symmetry, the Court has rejected the proposition that an armed conflict can occur outside the scope of some legal regulation, a proposition central to the purpose of the law of armed conflict. This aspect of the opinion transcends the question of the legality of the military commission and extends to every aspect of military operations conducted against al Qaeda. It represents a categorical rejection of the proposition that individuals detained in relation to such operations are protected against inhumane treatment only as a matter of policy, and not as a matter of law. Instead, such individuals fall under the protective umbrella of the Common Article 3 humane treatment mandate. The "international" scope of the military operations associated with this fight should therefore no longer be asserted as a justification for denying the applicability of this provision to such individuals.

Many commentators are already questioning whether this aspect of the opinion will have any meaningful impact beyond the military commission. I believe it will. For the first time since 9/11, proponents of the broad and pragmatic application of the principles reflected in Common Article 3 to U.S. military operations, as a matter of law, will be armed with a potentially controlling interpretation of this law. The next time such a proponent is confronted with the question "where does it say we have to comply with Common Article 3?", the answer will be much more compelling than before this decision was announced.

Geoffrey S. Corn is a Professor at South Texas College of Law in Houston. He is also a retired LTC from the Army JAG Corps. His last assignment was as Special Assistant to The Judge Advocate General for Law of War Matters


Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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