Over at Balkinization, Marty Lederman describes an argument that gives primacy to Common Article 3 of the Geneva Conventions.
He writes,
... for more than a half - century preceding February 7, 2002 the United States had agreed that Common Article 3 reflects a norm of customary international law, and it was U.S. policy to abide by that norm, even where the treaty provision does not apply of its own accord.All that changed on February 7, 2002, when the President directed the Armed Services to treat detainees consistent with the "principles" of Geneva (that's code for Common Article 3) only "to the extent appropriate and consistent with military necessity." State Department Legal Advisor Will Taft strongly argued that this was a serious mistake in judgment, and that we should abide by Common Article 3, just as we have purported to do in every other modern conflict, with respect to many other detainees not legally entitled to POW protections (e.g., the Viet Cong).
Arguments coming from this side of the issue continually ignore Common Article 2, which clearly states:
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.
If the Geneva Conventions and their attendant Protocols are inadequate to the task of governing 21st - century conflict, then Mr. Lederman should call for their revision.
However, as they now stand: Al - Qaeda and the insurgency in Iraq routinely violate Convention I, Article 13, Sections 1 and 2; Convention III, Article 4, Section 2; Protocol I, Article 44, Section 3; Convention I, Article 3, and others.
In accordance with Common Article 2, this conduct removes them from the protections afforded by the Conventions, and absolves the United States of observing those protections with regard to them.
The administration's argument against application of Common Article 3 recognizes what is explicit in the text of the Conventions. While that article may reflect "a norm of customary international law," so, too, does Common Article 2. While it may have been "U.S. policy to abide by that norm," the U.S. has also been historically inclined to follow Common Article 2, as illustrated by our soldiers' treatment of Germans as compared to their treatment of Japanese during WWII. The Japanese fared far worse, because their traditions of combat involved acts of perfidy and savagery that were alien to the European standards war common to the United States and Germany.
The administration has made explicit what has long been practiced by the United States: fight fairly, or our own savagery will know no bounds. I suggest that if the Viet Cong had flown airliners into the New York skyline, we would have arrived at this point much sooner in our history.
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In the comments to his post, Mr. Lederman writes,
The point of my post is *not* to discuss whether any or all of the detainees in the current hostilities are, or are not, protected by the Geneva Conventions themselves. It is, instead, to explain that the U.S. for fifty years had abided by the *customary* international law norms described in Common Article 3, until February 7, 2002 - - and that there's currently a fight within the Administration about whether to adopt the norms of Common Article 3 as a matter of U.S. policy, at least as far as the armed forces are concerned.
Fair enough. I've revised the first sentence of this post to reflect that he is describing an argument, rather than making an argument himself.
