Terrorism
September 12, 2006
Terrorism Detainees: Geneva Convention Common Article 3

Common Article 3 of the Geneva Conventions of 1949, if followed, can provide a core “bill of rights” safety-net for detainees even if additional Geneva Convention provisions were not applied. 

The U.S. Supreme Court’s June 29, 2006, decision in Hamdan v. Rumsfeld applied Common Article 3 to a global conflict with a non-state actor, al-Qaeda, taking place within the territory of a country that is a party to the Geneva Conventions, Afghanistan.  Its implications are that Common Article 3 applies to the global conflict with terrorists anywhere on earth involving the territory of a party to the Geneva Conventions.  As cited below, this reality has influenced recent developments within Department of Defense (DOD) detainee policies, including DOD Directive 2310.01E on DOD’s detainee program and the new Army Field Manual on Human Intelligence Collector Operations, both released Sept. 6, 2006. (Note that clicking on the link for the Army Field Manual opens an 11MB, 384-page PDF).

Common Article 3 Safeguards

Already applied to U.S. counterterrorism operations by the U.S. Supreme Court in the context of Hamdan, Common Article 3:

  • requires humane treatment of persons taking no active part in the hostilities, i.e., including detainees since removed from combat, without discrimination based on ethnicity, religion, gender or wealth
  • prohibits violence to life and person, such as murder, mutilation, torture and cruel treatment
  •  prohibits “outrages upon personal dignity” including “humiliating and degrading treatment”
  • requires that punitive sentences and executions (i.e., criminal punishments) be pronounced only by a “regularly constituted court” that “afford[s] all the judicial guarantees … recognized as indispensable by civilized peoples” 
  •  prohibits hostage-taking
  •  requires the wounded and sick to be cared for
  • indicates that “an impartial humanitarian body” like the International Committee of the Red Cross (ICRC) may offer its services

Click here to jump to the text of Common Article 3

Common Article 3 also provides that the parties to a conflict should attempt to form special agreements to bring into force all or part of the other provisions of the Geneva Conventions.  This latter point, of course, is most likely moot in the case of the conflict with al-Qaeda given the terrorist group’s core identity of lawlessness.  Even beyond the question of the illegality of non-sovereign global warfare and aggression, the terrorist mission largely centers around, in large part is defined by, committing international crimes, such as deliberately targeting civilians, taking hostages, and indiscriminately inflicting violent death and suffering of horrific proportions like that unleashed on Sept. 11, 2001. 

Common Article 3 in all Four Geneva Conventions

Common Article 3 is so named because it is contained in all four Geneva Conventions of 1949. 

The four Geneva Conventions apply, respectively, to four different general groupings of protected persons: (1) wounded soldiers on the battlefield, (2) wounded, sick and shipwrecked members of armed forces at sea, (3) prisoners of war, and (4) civilians in time of war.  (Interestingly, it is the Fourth Geneva Convention relating to civilians under occupation, or otherwise in a war zone, that, outside of Common Article 3, arguably comes closest to addressing terrorists.  The Fourth Geneva Convention in Article 5 focuses on spies, saboteurs and others hostile to a detaining power who, by definition under that treaty’s Article 4, are not considered regular POW’s.)

All four Geneva Conventions of 1949 contain the same Article 3, declaring that “[i]n 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 provisions described above. 

Hamdan Supreme Court decision applied Common Article 3 to global conflict with non-state actor within the territory of a Party to the Geneva Conventions

In the process of holding Guantanamo Bay military commissions in their most recent form unlawful, the Supreme Court in Hamdan applied Common Article 3 to the conflict with al-Qaeda in Afghanistan.  The Supreme Court held that “international” did not mean “global” but rather “intern-nation” or “between nations.”  Because al-Qaeda is not a nation-state, the court held, the conflict with al-Qaeda was not inter-nation, or international, however global in might be.  Under the language of Common Article 3, the court deemed the conflict with al-Qaeda an “armed conflict not of an international character.”  At the same time, where, as in Afghanistan, such a conflict takes place in the territory of a party to the Geneva Convention, the court held, Common Article 3 could be applied.  With these two requirements met in the court’s eyes, that the conflict was not of an international character and took place in the territory of a Party to the Geneva Conventions, the court then went on to hold that Common Article 3’s additional provisions were applicable, such as the requirements relevant to the Hamdan military commissions case, that criminal judgments on detainees, i.e., sentences imposed as punishment for being found guilty of a war crime, be passed only by a “regularly constituted court” providing “all the judicial guarantees … recognized as indispensable by civilized peoples.”

Regardless of differing views on the appropriateness of the holding, it now is a precedent.  It also avoided what arguably might have been a more difficult prospect of considering whether, in addition to being treaty text, Common Article 3 also has become customary international law and so could be applied as part of some generalized Law of Nations (although under U.S. Constitution Article I § 8 clause 10, the power to define offences against the law of nations falls to Congress, while under Article III §3 clause 1, cases arising under treaties specifically can fall under the authority of the Supreme Court).

In part as mentioned above, in the aftermath of the Hamdan decision DOD has purported to apply Common Article 3 to all DOD detentions, through:

While Common Article 3 provides a minimum floor, and there is the possibility that in detainee treatment a “rising tide could lift all ships” sources of controversy remain, among which are how to put alleged terrorists on trial and the constitutional safeguards employed to assure rule of law prevails.  More within the scope of this writing, one can anticipate debate over how detainee treatment claiming to honor Common Article 3 can best do so.

Differential treatment apparently still is anticipated under the emerging standards, with some DOD detainees still receiving additional rights if, for example, they are accorded a special status.   For example, an acknowledged prisoner of war (POW) would be under the coverage of the entire Third Geneva Convention, the Geneva Convention Relative to the Protection of Prisoners of War, not just Common Article 3. 

While the McCain Amendment was described by some as establishing uniform standards, its sometimes vague language might most accurately be said to have focused not on providing the same benefits and treatment to all detainees but on providing a minimum floor for detainee treatment.  It does so by banning cruel, inhuman or degrading treatment for all U.S. detainees, as defined by U.S. courts under constitutional standards, while also prohibiting, apparently just in the context of DOD-hosted or -led intelligence interrogations, “any treatment or technique of interrogation” not authorized or listed by the Army Field Manual on intelligence interrogation. 

With respect to the latter, the text arguably provides loopholes, for example, leaving open how to define DOD custody and control, or even how to define a DOD facility.  For example, it does not address whether an interagency interrogation effort can escape the application of the Army Field Manual by including DOD participation but leaving “control” of a detainee in the hands of another agency, or whether, on a DOD base, facilities, or even individual rooms, could be transferred to another agency for its use and escape the reach of subsection (a) of the McCain Amendment.

Click here to jump to the text of the McCain Amendment

Appendix 1:

Common Article 3

Common Article 3 reads, in its entirety:

Article 3

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.

Available within:

 

“Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field. Geneva, 12 August 1949.,” Article 3, http://www.icrc.org/ihl.nsf/7c4d08d9b287a421412567
39003e636b/
fe20c3d903ce27e3c125641e004a92f3

 

“Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea. Geneva, 12 August 1949.,” Article 3, http://www.icrc.org/ihl.nsf/7c4d08d9b287a421412567
39003e636b/
44072487ec4c2131c125641e004a9977

 

“Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.,” Article 3, http://www.icrc.org/ihl.nsf/7c4d08d9b287a421412
56739003e636b/
6fef854a3517b75ac125641e004a9e68

 

“Convention (IV) Relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949,” Article 3, http://www.icrc.org/ihl.nsf/7c4d08d9b287a421412567
39003e636b/6756482d86146898c125641e004aa3c5

 

Appendix 2

 

McCain Amendment

 

The McCain Amendment portion of the Detainee Treatment Act of 2005 has two prongs, one purporting to provide uniform standards for the interrogation of DOD detainees, as opposed to overall uniform treatment.  As mentioned above, this first prong does contain potential loopholes, such as leaving open how to define custody or control or how to define a DOD facility if, for example, an overseas military base were commingled with facilities operated or controlled by other agencies.  The second prong prohibits cruel, inhuman, or degrading treatment or punishment of any detainee in the “custody” or under the “physical control” of the United States.  This prong arguably leaves unaddressed controversies over transferring detainees to third countries, although that issue continues to be faced both in debate over the practice of rendition and debate over whether adjudicatory bodies trying alleged terrorists, whether civilian courts or would-be military commissions, can ever accept evidence allegedly gained through coercive tactics, including any evidence or information obtained during a detainee’s custody by a foreign country.
 
The text of the McCain Amendment follows:

SEC. 1402. <<NOTE: 10 USC 801 note.>> UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
 
    (a) In General.--No person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation.
    (b) Applicability.--Subsection (a) shall not apply with respect to any person in the custody or under the effective control of the Department of Defense pursuant to a criminal law or immigration law of the United States.
    (c) Construction.--Nothing in this section shall be construed to affect the rights under the United States Constitution of any person in the custody or under the physical jurisdiction of the United States.
 

SEC. 1403. <<NOTE: 42 USC 2000dd.>> PROHIBITION ON CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT OF PERSONS UNDER CUSTODY OR CONTROL OF THE UNITED STATES GOVERNMENT.
 
    (a) In General.--No individual in the custody or under the physical control of the United States Government, regardless of nationality or physical location, shall be subject to cruel, inhuman, or degrading treatment or punishment.
    (b) Construction.--Nothing in this section shall be construed to impose any geographical limitation on the applicability of the prohibition against cruel, inhuman, or degrading treatment or punishment under this section.
    (c) Limitation on Supersedure.--The provisions of this section shall not be superseded, except by a provision of law enacted after the date of the enactment of this Act which specifically repeals, modifies, or supersedes the provisions of this section.
    (d) Cruel, Inhuman, or Degrading Treatment or Punishment Defined.--
In this section, the term ``cruel, inhuman, or degrading treatment or punishment'' means the cruel, unusual, and inhumane treatment or punishment prohibited by the Fifth, Eighth, and Fourteenth Amendments to the Constitution of the United States, as defined in the United States Reservations, Declarations and Understandings to the United Nations Convention Against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment done at New York, December 10, 1984.
 

Excerpt from Detainee Treatment Act of 2005, contained within FY 2006 Defense Authorization Act, Public Law 109-163, 119 Stat. 3135, 3475-76, Jan. 6, 2006,
http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=
109_cong_public_laws&docid=f:publ163.109

 

# # #