I want to take a little time to examine Common Article 3 of the Geneva Convention. We have talked about it before on the blog, but maybe a more elementary explanation of it for our readers is called for in light of the controversy that the Handam case has stirred up. Allow me to qualify myself. It has been a long time since to studied International Law, so perhaps the other Citizens can help fill out this analysis.
I think this is important because I have listened to multiple news stories and everyone is throwing "Common Article 3" around. The Administration is giving conflicting messages about its stance on the article and how it plans to comply with the US Supreme Court ruling in Handam.
So let's look at the real thing and allow the readers to make their own determiniation.
Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Part I : General provisions
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 endeavour 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.
taken from the ICRC
Ok, that is the article. Let's start at the top. For starters, it's worth remembering that prior to WWI, it was an accepted principle of international law that states could treat their own citizens any way they saw fit without outside intereference. But, after WWI there arose exceptions such as the 1926 antislavery convention and concern over the treatment of Jews in Russia and Armenians in Turkey. With the Holocaust and the establishment of the United Nations, the idea that human rights was a global affair, not just a question of internal policies, took hold. The Geneva Conventions grew out of this movement. Because of the high level of ratification by its signatories, all states are bound to respect the Conventions.
They are comprised of four treaties that protect a different group of people at risk during armed conflict. The third treaty deals specificially with internal armed conflicts (not of an international nature) and grants combatants in those conflicts similar protections as traditianal prisioners of war. It says that persons taking no active part in the hostilities, including POWs; shall in all circumstances be treated humanely. And then it gives a semi-specific list of unacceptable treament. Like all law, this is open to interpretation. However, it is pretty obvious based on common sense what other types of things would be banned under the Convention. So anyone in the Administration that tries to say something like water boarding is acceptable under Geneva or that it doesn't apply to "enemy combatants" is looking for a way to avoid the Convention with semantics and slick legal arguements. The real bone of contention now is Artcle3, sec. 1 part D that deals with trial and conviction.
(What no one is talking about is Article 4 that covers all conflicts not covered by Article 3 which are all conflicts of an international character. It defines prisoners of war to include members of the armed forces of a Party to the conflict and members of militias of such armed forces (4.1.1) and members of other militias and members of other volunteer corps, including those of organized resistance movements in all conflicts not covered by Article 3 which are all conflicts of an international character.(4.1.2). But this is a different post.)
Article 3 requires that detainees be tried in a regularly constituted court. The tribunals that Bush set up are not "regularly constituted" since they have not been ratified by Congress. So what type of court can they be tried in? The military says they should be tried in military courts under the current UCMJ. The Administration wants Congress to ratify its own designed tribunals, thus rendering them "regularly constituted" under Article 1 sec 8 of the US Constitution. Yet others want to modify the UCMJ.
Administration lawyers want Congress to pass legislation stipulating that the Geneva Conventions don't apply to terror suspects. In light of article 4, I am not sure how they can justify that. But I am sure they are working on that as we speak. My view is that if these people deserve to be tried at all, and I am not sure many in Gitmo should be, then I'd agree with the military brass that the current UCMJ is good enough. It would much easier and better for US policy if we accepted the applicability of the Geneva Conventions to "enemy combatants" and treated them as the POWs that they are.