i’ve been meaning to post this bit
for many months — today, it seems particularly
timely(!), given the latest yoo-addington “barnacle
branch” of government claims — i thought
it well-past-time to set forth succinctly, here,
what the highest court in the land most-
recently had to say, in u.s. v. hamdan,
on this point:
. . .[this administration has made it an official policy — as the yoo/bybee/addington/cheney OLC opinions/memos opined — that] Common Article 3 does not apply to Hamdan [or other so-called “enemy combatants”] because the conflict with al Qaeda, being “international in scope,” does not qualify as a “conflict not of an international character.” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, ¶1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a non- signatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, ¶3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a non- signatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning. See, e.g., J. Bentham, Introduction to the Principles of Morals and Legislation 6, 296 (J. Burns & H. Hart eds. 1970) (using the term “international law” as a “new though not inexpressive appellation” meaning “betwixt nation and nation”; defining “international” to include “mutual transactions between sovereigns as such”); Commentary on the Additional Protocols to the Geneva Conventions of 12 August 1949, p. 1351 (1987) (“[A] non-international armed conflict is distinct from an international armed conflict because of the legal status of the entities opposing each other”).
Although the official commentaries accompanying Common Article 3 indicate that an important purpose of the provision was to furnish minimal protection to rebels involved in one kind of “conflict not of an international character,” i.e., a civil war, see GCIII Commentary 36–37, the commentaries also make clear “that the scope of the Article must be as wide as possible,” id., at 36.63 In fact, limiting language that would have rendered Common Article 3 applicable “especially [to] cases of civil war, colonial conflicts, or wars of religion,” was omitted from the final version of the Article, which coupled broader scope of application with a narrower range of rights than did earlier proposed iterations. . .
so, whatever else may be said of the president’s
decision (at the vice-president’s insistence) — see
e.g., addington’s june 26, 2008 HJC testimony
exhibit no. 8, at page 2 (page 34 of 51, overall, in the
PDF file linked — at paragraphs 3, 4 and 5),
to declare a “necessity” exception to the
legally-required “humane treatment” of all people,
regardless of flag or field, that agents of the
united states capture on any field of
battle — it is clear that even this far-right-
leaning supreme court would, today, hold that
the yoo/bybee/addington/cheney/bush policies
and legal conclusions are flat-out wrong.
these supremes would plainly hold this an
egregious mis-reading of the geneva conventions — it
is a very simple exercise — to read the literal
text of the geneva conventions. yoo and bybee,
apparently, were unable to read — and so, to
come to the conclusions they did, in 2002, is
nearly unfathomable — without assigning motive.
these are errors most first year law students, of
ordinary intelligence, would never make [jack gold-
smith has said, and written, as much]. why?
because all one had to do, to determine that
the yoo/bybee/addington/cheney view was wrong,
was actually read the whole document. read the
whole of all four geneva convention articles.
for a first-year — inexperienced in the
law, then — reading the entire document would
always be the very first rule. the starting point.
i would suggest that john yoo — a law
professor, and political gamesman, by
trade — made a conscious decision NOT
to read the whole document — just as he made
a conscious decision to ignore the youngs-
town steel case, decided a half-
century ago, by the same u.s. supreme
court — a case john yoo would have taught,
himself, to his own first years, as
a professor — in rendering his
wildly-off-the-wall, and shockingly
all of that smells of darker purposes.
he is too experienced to make such an “error“,
entirely on accident.
here endeth my rant.