- The Washington Times - Monday, November 15, 2004

Not quite one week after the American people overwhelmingly endorsed George W. Bush’s conduct of the war on terror at the ballot box, a federal district judge in Washington D.C., challenged the president’s policies by ruling that Salim Ahmed Hamdan is entitled to rights under the Geneva Conventions. Mr. Hamdan was captured in Afghanistan, is being held at Guantanamo Bay as an al Qaeda member, and has been designated for trial before a military commission. President Bush has, of course, refused to grant any Geneva Convention status to al Qaeda members because that group is not, and could not be, a party to those treaties.

Mr. Hamdan’s case is obviously on its way to the Supreme Court which, earlier this year, decided that such individuals can be held, without a criminal trial, as enemy combatants so long as hostilities continue in Afghanistan. Although the court also ruled that detainees must be given the opportunity to challenge their detention — most likely before a board of military officers — it never suggested that detainees were entitled to rights under the Geneva Conventions. In particular, the Supreme Court did not require that detainees be treated as prisoners of war (POWs) until a “competent tribunal” has determined otherwise, as provided in Article V of the Geneva POW Convention.

Nevertheless, this is exactly what the district court has ordered in Mr. Hamdan’s case, in addition to challenging the government’s right to try him before a military commission. The Geneva POW Convention, the court concluded, applies to everyone fighting in Afghanistan, regardless of their nationality or allegiance, merely because that country has ratified the treaty. This, of course, would extend Geneva protections to al Qaeda.

The Geneva POW Convention, however, does not apply territorially. It creates burdens and benefits for one-state party vis-a-vis other state parties. Thus, if two Geneva parties go to war, they are bound by the convention regardless of where the war is fought. By the same token, if a Geneva party fights a non-Geneva party, the non-party does not automatically qualify for the treaty’s protections — even if the conflict takes place on a party’s territory.

All of this is made clear by Article 2, common to all four Geneva Conventions, which provides that the treaties apply to any armed conflict “which may arise between two or more of the High Contracting Parties,” regardless of whether there has been a declaration of war. This is the key language. Although Article 2 also states that the conventions “apply to all cases of partial or total occupation of the territory of a High Contracting Party,” this clause does not, and was not intended to, benefit combatants associated with a non-party.

Indeed, under Article 2’s plain meaning, individuals fighting for a non-party can only be brought within the treaty’s reach if the entity itself “accepts and applies the provisions” of the Geneva Conventions. To achieve this, of course, the belligerent must be a state or, at a minimum, a group plausibly seeking recognition as the lawful government of a state. Private individuals, including trans-national terrorist organizations like al Qaeda, legally cannot make war on anyone, and they are incapable of acceding to the Geneva Conventions — formally or informally.

In al Qaeda’s case, of course, the question is academic. That group has flatly rejected any notion of law in war, let alone some form of humanitarian law. Unfortunately, in granting al Qaeda members Geneva protections, the Hamdan Court fell into a trap laid long ago by activists bent on restricting the rights of nation states under international law. Well before the September 11attacks on the United States, or the emergence of al Qaeda in the 1990s, various non-governmental organizations demanded that the traditional international law notion of reciprocity — which conditioned a state’s obligations on the reciprocal actions of its adversary — be abandoned. Thus, one state-party’s violations of the Geneva Conventions would not, automatically, relieve other parties of their obligations.

Whatever justification such a rule may have in warfare between states which have, at least, accepted the same legal burdens and agreed that violations of humanitarian principles will be the exception and not the rule, it has none when applied to a non-state entity that makes no pretense of accepting international humanitarian law in general, or the Geneva Conventions in particular. Under these circumstances, granting Geneva benefits (whether formally or under the guise of “customary” international law) merely works to legitimize the savage and illegal war al Qaeda has declared, and the ferocious tactics — particularly targeting civilians — it has adopted. Such a rule also would undermine the essentially contractual framework of the international system, whereby states can be bound only through their own consent — a framework which is, itself, the ultimate guarantor of the most fundamental right of self-government.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington office of Baker & Hostetler LLP. They served in the Justice Department under Presidents Reagan and George H.W. Bush.

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