Carol Platt Liebau: Another Reason To Shun the ICC

Friday, June 30, 2006

Another Reason To Shun the ICC

Here are two crucial quotes from this morning's LA Times, as the overreach of the Hamdan opinion continues to come into sharper focus.

Until Bush's 2002 order, the military had long followed Common Article 3 [of the Geneva Conventions]. The provision prohibits torture, cruel and inhumane treatment and requires a fair trial for all detainees. Under international custom, Common Article 3 has applied in wars in which the other rules of military engagement did not apply, such as civil wars.

Comment: The Hamdan opinion notes, that Article 3 of the Geneva Conventions finds that in a "conflict not of an international character occurring in the territories of one of the High Contracting Parties each Party to the contract shall be bound to apply, as a minimum." (emphasis added).

The clear language of the provisions obviously indicates that it's supposed to apply to internal conflicts -- i.e. if the skinheads started a race war in America, Article 3 would apply. It's an egregious misinterpretation of Article 3 to apply it to the struggle between the US and Al Qaeda -- a struggle that is remarkably global in scope. Apparently, four of the Justices (Stevens, Breyer, Souter and Ginsburg) don't seem to realize that Hamdan, Osama bin Laden's driver, wasn't picked up here in America.

Or else, they simply wanted to reach a certain result, and al Qaeda fighters even more obviously don't meet the criteria for being considered POW's entitled to certain protections under the Geneva Conventions, which require that they fulfil the followng conditions:

(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(Over at the Volokh Conspiracy, Stuart Benjamin notes that, aside from Justice Thomas, the justices are pretty silent about what seems to many bloggers like an egregious misreading of Article 3).

What's even more outrageous is the fact that the Justices rely on a provision of the Convention that was previously unenforceable under American law (and in interpreting it, appear to rely on international common [i.e. judge-made] law).


"The opinion seems to provide strong support for the position that even interrogation of terrorists must comply with the Geneva conventions," the administration lawyer said.

If that's really true, then the Supreme Court has provided yet another excellent reason for the US not to join the International Criminal Court, as people like John Kerry have demanded. It's enough that, as noted in the comment above, the Justices are trying to shoehorn international (judge made) law into American jurisprudence, even at the price of ignoring the plain meaning of the text it purports to interpret.

Even worse, if -- as four of the justices opined -- the Geneva Convention applies to every interrogation of every member of al Qaeda, take that reasoning to its most extreme (but logical) conclusion. Couldn't some anti-American court conclude that some terrorist interrogations including features like waterboarding have probably violated the Geneva Conventions? And couldn't another overreaching court (this time, an international one) come up with a specious war crimes charge?

Congrats to the Court's liberals for their efforts to transform American soldiers into war criminals, due to their own misinterpretation and misapplication of international law.

5 Comments:

Blogger Dittohead said...

C-Span has a good broadcast titled: Forum Discussion of Hamdan v. Rumsfeld
Georgetown University, Law Center.

It might be well worth seeing if they replay it or have a computer video.

It seems to blow holes in your assertion and interpretations.

10:37 AM  
Blogger dodger said...

I'm going to sound like a broken record but it would appear that the Supreme Court wishes to be in charge of waging war, or alternatively, to place Congress in charge.

Its called taking something simple, the President of the United States is Commander in Chief, and making it hard. For what purpose? To protect some boob who attacked our troops in the most nefarious fashion, under no uniform or flag. History has never had anything but contempt for such ilk. In short, if the Court were to err it should not have been on the side of the enemy.

12:18 PM  
Blogger Dittohead said...

So Dodger, do you really believe that the US should repudiate Genva Conventions.

12:49 PM  
Blogger Dittohead said...

At 8 pm est, C-Span will re-air Forum Discussion of Hamdan v. Rumsfeld Georgetown University, Law Center.

1:34 PM  
Blogger DANEgerus said...


Protocol I was rejected by the Senate & Reagan in 1987

"
While I recommend that the Senate grant advice and consent to this agreement, I have at the same time concluded that the United States cannot ratify a second agreement on the law of armed conflict negotiated during the same period. I am referring to Protocol I additional to the 1949 Geneva Conventions, which would revise the rules applicable to international armed conflicts. Like all other efforts associated with the International Committee of the Red Cross, this agreement has certain meritorious elements. But Protocol I is fundamentally and irreconcilably flawed. It contains provisions that would undermine humanitarian law and endanger civilians in war. One of its provisions, for example, would automatically treat as an international conflict any so-called “war of national liberation.'’ Whether such wars are international or non-international should turn exclusively on objective reality, not on one’s view of the moral qualities of each conflict. To rest on such subjective distinctions based on a war’s alleged purposes would politicize humanitarian law and eliminate the distinction between international and non-international conflicts. It would give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology. Another provision would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations, and I therefore have decided not to submit the Protocol to the Senate in any form, and I would invite an expression of the sense of the Senate that it shares this view. Finally, the Joint Chiefs of Staff have also concluded that a number of the provisions of the Protocol are militarily unacceptable.

In fact, we must not, and need not, give recognition and protection to terrorist groups as a price for progress in humanitarian law.

I believe that these actions are a significant step in defense of traditional humanitarian law and in opposition to the intense efforts of terrorist organizations and their supporters to promote the legitimacy of their aims and practices. The repudiation of Protocol I is one additional step, at the ideological level so important to terrorist organizations, to deny these groups legitimacy as international actors.

I would also invite an expression of the sense of the Senate that it shares the view that the United States should not ratify Protocol I, thereby reaffirming its support for traditional humanitarian law, and its opposition to the politicization of that law by groups that employ terrorist practices.
"
Sounds very familiar doesn't it? The Kelo-5 insisted the Geneva Conventions includes this very 'Protocol I' which was specifically rejected by the President and Congress 19 years ago.

So... did not the Kelo-5 quite simply lie, and in doing so:
"
"...undermine humanitarian law and endanger civilians in war."

"...give special status to “wars of national liberation,'’ an ill-defined concept expressed in vague, subjective, politicized terminology."

"...grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war."

Act to "endanger civilians among whom terrorists and other irregulars attempt to conceal themselves."

Grant "these groups legitimacy as international actors."

Support "the politicization of that law by groups that employ terrorist practices."
"
Apparently tiring of ignoring our protections guaranteed by the limits of the US Constitution with the inclusion of references to international law, the Kelo-5 have moved on to ignoring the protections of international law.

3:43 PM  

Post a Comment

<< Home

Google