Hamdan and the Geneva Conventions by Carlos Vázquez

The importance of the Supreme Court’s decision Thursday in Hamdan v. Rumsfeld far transcends the immediate subject before the Court – military commissions. Among the most important holdings of the Court was its decision that Common Article 3 of the Geneva Convnetions apply to the conflict against al Qaida. The Bush Adminstration had argued that Common Article 3 was inapplicable to this conflict because the Article by its terms applies only to conflicts “not of an international nature” and the conflict with al Qaida is of an international nature. The Supreme Court rejected that reading of the Article, concluding that the Article uses the term “international” in the sense of “between states.” Because al Qaida is a non-state actor, the conflict between the United States and al Qaida is, according to the Court, “not of an international nature.” The Administration’s reading of Common Article 3 garnered only two votes on the Court – those of Justices Scalia and Thomas – and even they conceded that the majority’s reading of the clause was reasonable. (They argued that the President’s reading was reasonable too and the Court should have deferred to.)

The Court’s holding that Common Article 3 applies to the conflict against al Qaida is of enormous significance for questions not before the Court in Hamdan. For example, the President’s narrow reading of the Article was his basis for concluding that the Article – which requires humane treatment of detainees and bars torture and degrading treatment – has no bearing on the interrogation of members of al Qaida. It was also the basis for the Office of Legal Counsel's conclusion that officials who interrogate using methods inconsistent with Common Article 3 would not risk criminal liability under the War Crimes Act, which subjects U.S. nationals who commit war crimes to criminal penalties and specifies that violations of Common Article 3 are war crimes.

Some commentators have suggested that the Court’s reading of Common Article 3 is of limited significant because the Court did not hold that the Geneva Conventions are judicially enforceable by private parties as an independent source of law, but instead considered the Convention to be relevant to Hamdan’s suit only because Congress had by statute made compliance with the laws of war – and hence the Geneva Conventions – a condition of using military commissions. It is true that the Court reserved the question of the judicial enforceability of the Geneva Conventions in other contexts. But, contrary to the suggestions of some commentators, the Court did not for this reason leave open the question whether the Geneva Conventions are binding on the President. The question whether the Conventions are judicially enforceable is quite separate from the question whether the Conventions are binding. The Administration in Hamdan had argued that the Conventions are not judicially enforceable because the Court had said in an earlier case (Johnson v. Eisentrager) that an earlier Geneva Convention contemplated that diplomatic protests would be the exclusive enforcement mechanism. But even the Eisentrager Court recognized that the lack of judicial enforceability had no bearing on whether the Convention created rights that the military authorities were bound to respect. Nothing in any of the Hamdan opinions suggests that the Geneva Convnetions are not binding on the President. Thus, even if the Conventions are not enforceable by private parties in our courts, the President and his subordinates are bound to comply with them. Thus, there is no question that the opinions of the Office of Legal Counsel embracing an interpretation of the Conventions contrary to the one adopted by the Supreme Court will now have to be revised.

The question of the Convention’s judicial enforceability will come up in cases in which detainees challenge their treatment as contravening Common Article 3. Numerous such cases are pending. Although it is true that the Court left that question open, it is worth noting that the majority signaled some skepticism about the Administration’s position on that point. As noted, the Administration had relied on the Court’s statement in Eisentrager that the “obvious scheme” of an earlier Geneva Convention was that disputes would be resolved diplomatically. The Court’s skepticism of that argument is suggested by its observation that this argument was “buried in a footnote” in Eisentrager. (At the oral argument, when the Solicitor General mentioned Eisentrager, Justice Stevens immediately noted that the portion of the relevant discussion was “dictum in a footnote.”) Additionally, after noting that it would assume arguendo that the earlier Convention’s contemplation of diplomatic enforcement mechanisms suggests a preclusion of enforcement in domestic courts, the majority wrote: “But see Brief of Amici Curiae Louis Henkin et al.” That brief argued at some length that Eisentrager’s reasoning was erroneous and, being dicta, should not be followed. (Full disclosure: I was a co-author of this brief.)  Specifically, the brief argued that a treaty’s provision fpr international enforcement mechanisms does not in any way suggest a preclusion of domestic enforcement; treaties were declared by our Constitution to be the “law of the land” and hence enforceable in our courts in order to avert or quickly correct violations and thus head off the international enforcement mechanisms contemplated by the treaty (or by international law more generally). Thus, although the judicial-enforceability issue technically remains open, Hamdan indicates that at least five Justices are appropriately skeptical of the Administration’s position on this issue. 

Justice Breyer noted in Hamdan that nothing prevents the President from seeking authority from Congress to establish his military commissions.  Much of the commentary on Hamdan emphasizes that the Court's holding on military commissions is alterable by Congress.  The Hamdan decision places significant limits on Congress' options, however. To the extent the Court relied on the UCMJ, Congress could of course amend that statute.  However, the conflicts the Court found with Common Article 3 present a more signficant obstacle. It is true that, under the last-in-time rule, Congress and the President can legislate in contravention of a treaty obligation.  But it is significant that, in a decision on Wednesday, Sanchez-Llamas v.Oregon, the Court relied on Article III of the Constitution and quoted Marbury v. Madison  in holding that it is the province and duty of the Supreme Court to interpret treaties.  The Court gave that as a reason why the interpretation of another treaty by the International Court of Justice could not be considered binding, but presumably this analysis also makes the Supreme Court the authoritative interpreter of treaties vis-à-vis the President and even Congress.  If so, then the Court’s analysis in Sanchez-Llamas rules out a statute that purports to reject the Supreme Court's interpretation of the Geneva Convention and "restore" the President's interpretation, as Professor John Yoo has urged Congress to do.  The law-makers could, of course, repeal the Geneva Convention's domestic effect, but, in light of Sanchez-Llamas, they would have to do so by openly rejecting the Geneva Convention.  Openly rejecting the Geneva Conventions would of course be a terrible idea, given the protections they provide to our troops.  I assume (and hope) that such repudiation is not within the range of plausible options.  If Congress is powerless to reject the Supreme Court's interpretation of the treaty, and repudiation of the treaty is not conceivable, then any legislative solution would have to comply with the Supreme Court's interpretation of Common Article 3.   

Comments

[p.lukasiak]

Dr. Vasquez:

Could you comment on the possible applicability of the Yamashita precedent as it applies to potential war crimes charges against the current administration and its chain of command. The Yamashita case is frequently cited in the Hamden decision, and, as you are no doubt aware, Yamashita was sentenced to death "for failing to prevent troops under his command from committing atrocities in the Philippines" despite the fact that he was unaware that atrocities were taking place.

It seems to me that, with SCOTUS stating that Common Article 3 applies, the US government will have to revisit the question of culpability of those in the chain of command for abuses at Abu Ghraib and Guantanamo -- and if the US fails to do so, Bush and his subordinates could be tried by an international tribunal.

( Would Abu Ghraib be an exception, insofar as the UN agreed to "innoculate" US military personnel from war crimes charges?)

[madisonian]

Prof. Vasquez:

As much as I admire your work on treaty law, I must say that I was puzzled by this post. Do you really think that a statute declaring that common Article 3 does not apply to the conflict against al Qeada would not be controlling? The logic of Boerne doesn't apply to this situation. Per Marbury, the Supreme Court may have the final say on the interpetation of the Constitution, but that's only because the Supremacy Clause gives primacy to the Constitution over any statute. But that's not so with treaties. Indeed, at least as a matter of domestic law, it's been settled since the Head Money Cases that Congress can override treaties by statute. So, just as Congress can "correct" a misguided interpretation of a statute by enacting a contrary statute, I fail to see why it couldn't do the same with an interpretation of a treaty. Maybe you call it restoring what Congress sees as the proper interpretation of the treaty; maybe you call it abrogating the domestic law obligation that the treaty imposes by virture of the Court's decision. Either way, the result should be the same.