A Response to John C. Yoo, “The Status of Soldiers and Terrorists
under the Geneva Convention”
Johannes van Aggelen*
Introduction
The central theme of John C. Yoo’s article, The Status of Soldiers and Terrorists
under the Geneva Convention, 3 Chinese JIL (2004), 135-150, is that the American
government is legally correct in denying the Taliban and Al Qaeda detainees
protection under the relevant Geneva Conventions and that the rights contained in
these conventions are designed for professional soldiers who are “duty-bound to fight
for their nation-not for criminals, and certainly not for terrorists” (Yoo, p. 137). The
author at the beginning makes scant reference to the so-called White House Fact
Sheet dated February 7, 2002, which became the official policy towards these
detainees. It should be borne in mind that Mr. Yoo, in an official governmental
position at that time, bears, to say the least, an important intellectual responsibility for
this policy.1 I would like to comment on the three main issues put forward in the
article: The general application of the Geneva Conventions, the concept of unlawful
combatant and the problems raised in connection with the application of article 17 of
the Third Geneva Convention.
1. Application of the Geneva Conventions
The author admits that the Taliban constituted a de facto government and that
Afghanistan in October 2001 was party to the Geneva Conventions. Nevertheless, in
his opinion, the Taliban militia did not meet the standards for “legal belligerency and
consequently lacked any entitlement to prisoner-of-war status” (p.139). There is a
wealth of literature on this particular issue, a detailed discussion of which would go
beyond the purpose of these comments.2 The argument hinges upon the
interpretation of article 4(A)(2) of the Third Convention, enumerating four conditions
which have to be met before POW status can be obtained.
It is my opinion that the Taliban met the requirements of a regular force.
*
1
2
Dr. Johannes van Aggelen. United Nations. This comment is made in an individual
capacity and does not reflect the official position of any organization he is associated with.
This response was completed on November 8, 2004.
His involvement in policy-making is evidenced in many of the previously classified
documents that have become available at the respective governmental internet sites
following the disclosure of the Abu Ghraib prison scandal.
See i.a., Jiri Toman, “The Status of Al Qaeda/Taliban Detainees under the Geneva
Conventions”, Israel Y. B on Human Rights, vol. 32,2002, pp.271-304 , n.1 and the
literature cited therein; R. Wolfrum & C. Philipp, “The Status of the Taliban: Their
Obligations and Rights under International Law”, Max Planck Y.B. of United Nations
Law, vol.6,2002,pp.559-601).
1
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3 Chinese JIL (2004)
They were organised under the authority of a central command of government and
did distinguish themselves from the civilian population by wearing black turbans and
scarves.
Another difficulty for Professor Yoo is to accept, in this connection, the
underlying rationale of subsequent developments in international humanitarian law,
and in particular article 44(3) of Protocol I, which would in his opinion “significantly
dilute the traditional requirement under customary law and GPW that combatants
must distinguish themselves from civilians and otherwise comply with the laws of war
as a condition of protection under the Geneva Conventions” (p.147).
However, one has to admit that the Reagan Administration’s refusal to submit
the Protocol to the Senate for action in 1987, which the author cites as justification for
his position, cannot stand the test of customary international law norms.
The “Martens Clause”, inserted into the preambular paragraphs 9 (Hague
Convention II of 1899) and 8( Hague Convention IV of 1907) with respect to the
Laws and Customs of War on Land, demonstrates the continued relevance of
humanitarian law, regardless of subsequent developments or types of situation or
technology3.
The quintessence of the clause was that “populations and belligerents
remained under the protection and empire of the principles of international law, as
they result from the usages established between civilised nations, from the laws of
humanity and the requirements of the public conscience”. Subsequently, the clause
was incorporated into article 142 of the Third Geneva Convention.
In addition, the current world political constellation, combined with a risk of
fragmentation of international law, could lead to what some authors have recently
called “the law and politics of labels”.4
Elementary considerations of humanity have been recognised by the
International Court of Justice in the Corfu Channel Case, 5 and in the Advisory
Opinion on the Legality of the Threat or Use of Nuclear Weapons. 6 Indeed, on paper
it would seem that these basic notions have been taken into account as the US
Department of Defence Directive 5100.77, paragraph 5.3 dated 9 December 1998
provided: “The Heads of the DOD components shall: … ensure that the members of
their components comply with the law of war during all armed conflicts, however such
conflicts are characterized, and with the principles and spirit of the law of war during all other
operations”(emphasis supplied).
In this connection there is another issue which should be considered, namely
the application of the Geneva Conventions in relation to the United States
3
4
5
6
See H. Strebel, Martens Clause, in R; Bernhardt(ed), Encyclopedia of Public International
Law, vol.3,(1997), p.326; see also the Commentary on the Additional Protocols of 8 June
1977 to the Geneva Conventions of 12 August 1949, Claude Pilloud et al eds,1987, para;
55.
M. Mofidi and A. Eckert, “Unlawful Combatants or Prisoners of War: the Law and
Politics of Labels”, 36 Cornell ILJ, 2003, pp.59-92.
UK vs Albania I.C.J. Rep. 1949, p.4 at .22.
I.C.J. Rep. 1996, p.226, para.79, at p.257.
Van Aggelen, A Response to John C. Yoo
3
Constitution. As Professors Jinks and Sloss have recently pointed out the so-called
“take care clause”, contained in article II(3) of the Constitution imposes a duty on the
President to faithfully execute the laws; in addition, the so-called “supremacy clause”
(Constitution article VI, cl.2) expressly states that treaties like statutes are the supreme
Law of the Land. Consequently, breach of a treaty in contravention of international
law may constitute a violation of the President’s constitutional duty under the take
care clause.7
Their conclusion is that the rules embodied in the Geneva Conventions
address matters within the scope of powers given to Congress by article I of the
Constitution, hence the President lacks the constitutional power, absent congressional
authorisation, to violate these treaties.8 The problem is how to judge the
“Authorization for Use of Military Force Law” given to the President by Congress on
18 September 2001;9 and whether this law authorised the President to violate the
Geneva Conventions. As indicated in a forthcoming article, it is my sincere
conviction that this was not the case.10
This conclusion ties in with developments within the American domestic
judicial system, after this article had been concluded.
In the case Gherebi v. Bush, a court ruled that it was “the obligation of the
Judicial Branch to ensure the preservation of our constitutional values and to prevent
the Executive Branch from running roughshod over the rights of citizens and aliens
alike”.11
The final assessment in my opinion, that the President is not above the law,
came when the US Supreme Court wrote history for this particular branch of law
when it decided on 28 June 2004 in the Rumsfeld v. Padilla (Certiorari to the United
States Court of Appeals for the Second Circuit; 542 US 2004), Rasul et al. v. Bush and
Al Odah et al v.Bush (on Writs of Certiorari to the United States Court of Appeals for
the District of the Columbia Circuit, 542 US 2004 and Hamdi v. Rumsfeld (on Writ of
Certiorari to the United States Court of Appeals for the Fourth Circuit,542 US 2004),
that legal remedies should be made available within the framework of oversight by the
judiciary.12
It might be of interest to consider briefly developments after Professor Yoo’s
7
8
9
10
11
12
D; Jinks, D. Sloss, “Is the President Bound by the Geneva Conventions”?, University of
Chicago Public Law Working Paper, No.61, p.3, Cornell Law Review, vol.100, 2004.
Supra note 7 at pp.74-83 in passim.
Public Law 107-40, 115 Stat. 224.
Johannes van Aggelen, “Withering International Human Rights and Humanitarian Law
Principles at the Turn of the Millennium: Reflections on Guantanamo and Beyond”,
Section I, War and Armed Conflict, to be published in a Liber Amicorum for Judge Antonio
Cançado Trindade, February 2005, Fabris editor, Porto Alegre, Brazil.
352 F.3d 1278 at 1283, 9th Cir., 18 December 2003..
See in this connection also the article by D. Tarin, “Will an Attack on America Justify an
Attack on Americans?: Congressional and Constitutional Prohibitions on the Executive’s
Power to Detain US Citizens as Enemy Combatants”, Virginia JIL, vol.44(4), 2004,
pp.1146-1196.
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3 Chinese JIL (2004)
memorandum dated 9 January 2002 until the President’s decision of 7 February 2002.
On 18 January 2002, the Department of Justice issued a formal legal opinion holding
that the Third Geneva Convention did not apply to the conflict with Al Qaeda, and
that there were reasonable grounds to conclude that the Convention neither applied to
the Taliban detainees.
It was argued that this interpretation was definitive, because the Attorney
General is charged by statue with interpreting the law for the Executive Branch. This
interpretive authority extends to both domestic and international law.
Subsequently, in a memorandum for the President, his Counsel Alberto
Gonzales, on 25 January 2002, put forward a number of ramifications for the
determination of the application of the Prisoners of War Convention indicating both
positive and negative consequences. Non-application would preserve flexibility and as
a major reason, it would substantially reduce the threat of domestic criminal
prosecution under the War Crimes Act, 199613.
However, it was recognised that non-application would likely provoke a
widespread condemnation among allies and domestically as well, even if the core
humanitarian principles were respected as a matter of policy. Moreover, the
conclusion that the Geneva Convention did not apply could encourage other
countries to look for technical loopholes in future conflicts to conclude that they were
neither bound by the Convention.
One day later, the Secretary of State addressed a memorandum to the
Presidential Counsel, using the same ramifications, in which he also commented on
his memorandum. He concluded that the draft memorandum was inaccurate and
incomplete in several respects, the most important being that the United States had
never determined that the Third Convention did not apply to an armed conflict in
which its forces were engaged. The Convention was intended to cover all types of
armed conflict and did not by its terms limit its application.14
Mr. Gonzales repeated the official position before the American Bar
Association Standing Committee on Law and Security, Washington DC on 24
February 2004, stating that to give “terrorists” the rules and presumptions of the
criminal justice system lacked any validity in domestic or international law15.
Professor Jordan Paust, in a daring analysis, has called the exchange of these
memoranda “The Common Plan to violate the Geneva Conventions”.16 He concluded
that the plan, according to the Gonzales memorandum was legally inept, because it
admitted that protection was still available under customary international law. The
plan recognised, on the one hand, that the customary international law of war applied
to the war in Afghanistan, but on the other, refused to apply the Geneva Conventions.
13
14
15
16
18 U.S.C. § 2441
Most of these memoranda have been appended to a recently published book by Michael
Ratner and Ellen Ray entitled “Guantanamo: What the World Should Know”, June 2004,
Chelsea Green Publishing Company; see also D. Rose, “Guantanamo Bay: America’s War
on Human Rights”, Faber Publishers, October 2004.
emphasis supplied, on file with author
See http://jurist.law.pitt.edu/forum/paust2.php, visited on 7 June 2004.
Van Aggelen, A Response to John C. Yoo
5
He also called this policy “courting illegality” and the labelling of detainees as unlawful
combatants an error and in violation of the Geneva Conventions.17
In view of the above considered constitutional aspect, he determined the plan
not only illegal, but also unconstitutional.18 One cannot escape the conclusion that in
the ultimate determination the American administration did make ample use of the
politics of labels.
In view of the above cited judicial reversal of previous court decisions, the
only possible explanation is that detainees do have rights under the Geneva
Conventions and in particular to have a judgment on their status by an impartial
tribunal according to article 5 of the Third Convention. They are not in a legal black
hole.19
In this connection reference should also be made to the authoritative English
Manual of the Law of Armed Conflict, where it reads in paragraph 8.22: “Where a
person in the power of an adverse party is not held as a prisoner of war and is to be
tried by that party for an offence arising out of the hostilities, he has the right to claim
prisoner of war status and to have that question adjudicated by a judicial tribunal”. 20
2. Unlawful Combatants
Lawful combatants are protected under the POW Convention and it is for the
combatant to prove that he fulfils the requirements of the Convention.21 However,
does that mean that unlawful combatants are left without any protection? I would like
first to turn to the concept itself.
The term “unlawful combatants” is designed to draw a practical distinction
between the civilian population and combatants in armed conflict in order to avoid
any confusion as to the line of demarcation between the two groups. The term does
not appear in the Geneva Conventions and as such is not recognised in international
law.
The term was indeed used once in a famous US Supreme Court decision dated
17
18
19
20
21
J. Paust, “Antiterrorism Military Commissions: Courting Illegality”, 23 Michigan JIL
(2001), pp.1-26, p.7 ftn.15; id., “Judicial Power to Determine the Status and Rights of
Persons Detained without Trial”, 44 Harvard ILJ (2003), pp.503-532, at p.504, ftn.3.
Id., International Law as Law of the United States, 2nd ed., 2003, pp.169-173.
Johan Steyn, “Guantanamo Bay: The Legal Blackhole”, 53 ICLQ, 2004, pp.1-15; H-P.
Gasser, “International Humanitarian Law, the Prohibition of Terrorists Acts and the
Fight Against Terrorism”, 4 Y.B. of International Humanitarian Law, 2001, pp.329-347
at p.342.
Oxford University Press, 2004; see also paragraphs 4.12 and 8.20-24; see also US Army,
“Operational Law Handbook, 2002, International and Operational Law Department, the
Judge Advocate General’s School, Charlotteville, Virginia, Ch.2 at 16 where it
unequivocally reads “when doubt exists as to whether captured enemy personnel warrant
continued POW status, article 5 Tribunals must be convened”, available at
http://www.jagcnet.army.mil/JAGCNETInternet/Homepages/AC/CLAMO-Public.nsf).
See in general A-M de Zayas, Combatants, in: R.Bernhardt(ed), 1 Encyclopedia of Public
International Law (1992), p.668.
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3 Chinese JIL (2004)
31 July 1942 in the so-called Ex Parte Quirin case which Professor Yoo invokes to
prove his right.22 Although the Supreme Court distinguished between lawful and
unlawful combatants, the analogy does not hold water for Taliban and Al Qaeda
detainees. The significance of this case was the Supreme Court’s legal approach to
espionage in the framework of the laws of war. The Supreme Court’s conclusion that
a spy is automatically an offender of the laws of war and consequently an unlawful
combatant was without precedence in the jurisprudence of the Supreme Court in
1942. The author, while referring the reader to this single case, could give the
impression that the law of armed conflict did barely progress over the last 60 years.
This is a conundrum for any international lawyer. Moreover, it is clear that this case
dealt with spies and Taliban and Al Qaeda combatants can definitely not be classified
as such.
The late Prof Baxter, one of the authors of the 1956 Manual “US Army, The
Law of Land Warfare, FM 27-10”, attempted five years earlier to classify a wide range
of combatants, who did not meet the POW criteria as “unprivileged belligerents”. 23
His main conclusion was that this category of combatants did not per se commit
definite violations of the laws of war, but that these combatants could be tried and
punished by the enemy in accordance with criminal law. In his words: “The judicial
determination which is necessary before a person may be treated as an unprivileged
belligerent is in consequence not the determination of guilt, but of status only …” 24
Unfortunately, his attempt to clarify failed because the current US military
manuals use four terms interchangeably. These terms are: unprivileged belligerents,
detainees, unlawful combatants and illegal combatants, covering those who are not
considered members of the armed forces of a party to the conflict and consequently
not having the right to engage in hostilities against an opposing party.25
In the opinion of a contemporary scholar the variety of such terminology is
not in itself a problem. Professor Roberts maintains that the United States made
believe that terms such as unlawful combatant and battlefield detainee were new and
outside the existing treaty framework.26
22
23
24
25
26
at p.138, see M. Hopfner, Quirin, Ex Parte, in R. Bernhardt(ed), 4 Encyclopedia of Public
International Law (2000), p.1.
R.R. Baxter, “So-called Unprivileged Belligerency: Spies, Guerillas and Saboteurs”, 28
British YIL,1951, pp.323-345.
Ibid. at pp.344-345.
Supra note 20, Ch.2 at 6.
A. Roberts, “The Laws of War in the War on Terror”, Israel Y.B. on Human Rights,
vol.32, 2002, pp.193-245 at p.229; see also M. Hoffman, “Quelling Unlawful Belligerency:
The Juridical Status and Treatment of Terrorists under the Laws of War”, Israel Y.B. on
Human Rights, vol.31, 2001, pp.161-181; by the same author, “Terrorists are Unlawful
Belligerents, not Unlawful Combatants: A Distinction with Implications for the Future of
International Humanitarian Law”, Case Western Res. JIL, vol. 34, 2002, pp.227-230; Y.
Dinstein, “Unlawful Combatancy”, Israel Y.B. on Human Rights, vol.32, 2002, pp.247270; R. Goldman and B. Tittmore, “Unprivileged Combatants and the Hostilities in
Afghanistan: Their Status and Rights under International Humanitarian Law and Human
Rights”, ASIL Task Force on Terrorism, December 2002; J. Callen, “Unlawful
Van Aggelen, A Response to John C. Yoo
7
Indeed, General Draper already in 1971, taking stock on the evolution of
combatancy, stated: “we have thus reached a stage where we have to ask whether the
combined effect of article 4 of the Geneva POW Convention, 1949, and articles 1, 2
and 3 of the Hague Regulations meets the various types of armed conflicts we find
operating today. It may be a more profitable exercise to delineate the limits to which
the Law has gone already in according privileged belligerency and then determine who
is excluded rather than attempting to subsume all the various types … under one
comprehensive definition”.27
The ICRC has always argued that those not qualifying for POW status should
be viewed as civilians and consequently fall under the protection of article 4 of the
Civilians Convention in view of the words “those who, at a given moment and in any manner
whatsoever … of which they are not nationals”.28 However, the ICRC is not party to the
Geneva Conventions, but is the historical instigator and guardian of developments in
international humanitarian law. During the negotiations in 1949 on the scope of
protection of the Civilian Convention, the committee members agreed that unlawful
combatants covered under the Convention should not receive the same protection as
civilians.29 In the end the delegates decided that those individuals who presented a
threat to the security of the state by engaging in underground activities should not be
entitled to the full protection of the Convention. The only obligation placed on states
should be to ensure that such individuals receive humane and legal treatment, which
finally resulted in the adoption of article 5.30
As has been rightly observed, articles 4 and 5 of the Civilian Convention in
combination with the POW Convention establish a framework for classification of
captured combatants. The POW Convention protects all lawful combatants;
combatants who fail to meet the requirements then will be protected by article 4 of
the Civilian Convention. The consensus article 5 subsequently reduces the protection
of two categories of combatants. Article 5(1) covers individuals captured in the
territory of a party to the conflict; article 5(2) covers individuals captured in occupied
territory. The limitations are directed towards unlawful combatants fighting away from
the traditional battlefield.31 However, the ICRC commentary indicates that the
Civilian Convention extends broadly to cover all unlawful combatants, including those
captured on the battlefield.32
Jurisprudence of the ICTY has sent a powerful message in this connection
when it held “there is no gap between the Third and Fourth Geneva Convention and
27
28
29
30
31
32
Combatants and the Geneva Conventions”, Virginia JIL, vol.44, 2004, pp.1025-1076.
G.A. Draper, “Combatant Status”, Revue de Droit Penal Militaire et de Droit de la
Guerre, vol.10, 1971, p.389-398, at p.392.
See also H.P. Gasser, “Act of Terror, Terrorism and International Humanitarian Law”, 84
Int’l Rev. Red Cross, No.847, September 2002, p.568; Commentary on Geneva
Convention IV, J.S. Pictet, ed, ICRC, 1958, at p.51.
Final Records of the Diplomatic Conference of Geneva of 1949, vol.2, para.A at 621.
Ibid., para.A at 814.
Callen, supra note 26, at pp.1039-1040.
Supra note 28, at p.51.
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that if an individual is not entitled to protections of the Third Convention … he or
she necessarily falls within the ambit of Convention IV”.33 Such a deduction could
also warranted, because the limitations on protection do not refer to battlefield
unlawful combatants.
In addition, Professor Yoo in his above mentioned memorandum dated 9
January 2002 prepared the way for President Bush to accept the legal conclusion of
the Department of Justice that common article 3 of the Geneva Conventions does not
apply to the Taliban and Al Queda detainees, because it only applies to armed
conflicts not of an international character.34 However, the ICJ already in 1986 did
give a definite ruling to the contrary, proving by the same token the evolution of the
law of armed conflicts. It stated: “…. There is no doubt that, in the event of
international armed conflicts, these rules also constitute a minimum yardstick, in
addition to the more elaborate rules that also apply in international armed conflicts;
and they are rules which, in the Court’s opinion, reflect what the Court in 1949 called
‘elementary considerations of humanity’”.35
This trend was upheld in the
jurisprudence by the ICTY, ICTR as well in the regional Inter- American Commission
on Human Rights.36
There is still one more important aspect to be considered with respect to
residual protection for unlawful belligerents/combatants. It is the evolution of
international human rights law which has in fact had a revolutionary impact on the law
of armed conflict.37
One author has called this the progressive convergence of protective
schemes.38 He noted that the legal protection accorded to unlawful combatants has
33
34
35
36
37
38
Prosecutor v. Delalic et al, Celebici Camp case, Judgement IT-96-21-T, dated 16
November 1998, para.271.
Memorandum for W.Hayes II, General Counsel, Department of Defense from J. Yoo,
Deputy Assistant Attorney General and R. Delahunty, Special Counsel, at pp.6-11.
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States),
ICJ Rep. 1986, 14 at 114.
Prosecutor v. Tadic, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction, case IT-94-1-1, dated 2 October 1995, p.87; Prosecutor v. Akayesu, case No.
ICTR 96-4-T, dated 2 September 1998, p.601; Abella v. Argentina, case No.11137, InterAmerican C.H.R., Report No.55/97, OEA/Ser.L/V/II.98, doc.6 rev. 1, pp.155-156.
See in passim Johannes van Aggelen, above note 10; Goldman and Tittmore, above
note24; but see J. Paust, “There is No Need to Revise the Laws of War in the Light of
September 11th”, ASIL Task Force on Terrorism, November 2002,at
http://www.asil.org/taskforce/paust.pdf.; by the same author, “Do We Need a New
Legal Regime After the September 11?; Post-9/11 Overreactions and Fallacies Regarding
the War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of
Detention and Due Process in Military Commissions”, 79 Notre Dame LR, July 2004,
pp.1335-1364; W. Taft, IV, “The Law of Armed Conflict After 9/11: Some Salient
Features”, 28 Yale J. Int’l L., 2003, p.319-323; M. Sassoli, “Unlawful Combatants: The Law
and Whether it Needs to be Revised”, ASIL Proceedings, 2003, pp.196-200.
D. Jinks, “The Declining Significance of POW Status”, 45 Harvard ILJ, Summer 2004,
pp.367-442, at p.424; id., Protective Parity and the Law of War”, 79 Notre Dame LR, July
2004, pp.1493-1528.
Van Aggelen, A Response to John C. Yoo
9
acquired a more concrete meaning through the elaboration of general humanitarian
principles such as humane treatment, the prohibition of torture and the development
of essential judicial guarantees.
The gravamen of his argument is that humanitarian protection in time of war
should not vary by detainees status categories. Captured combatants, irrespective of
their status, should be subjected to criminal prosecution if they have committed acts
that constitute war crimes. If combatants do not engage in acts qualified as such, they
should not be punished for their very participation in the conduct of war. 39
In case this philosophy becomes the predominant doctrine in the future, it will
mark a definite change from the previous position that combatants should be judged
not on guilt but on status only. His final analysis is that, contrary to conventional
wisdom and the policy concerning the ‘war on terrorism’, POW status does not carry
significant, unique protective consequences. As a normative matter this so-called protective
parity would maximise, within the bounds of military necessity, the humanitarian
protection accorded to combatants without exacerbating the dangerous faced by noncombatant civilians.40
As Goldman and Tittmore correctly observed, the United States is bound by
treaty and customary norms of international human rights and humanitarian law. 41
International human rights obligations apply at all times, in peace and in war time,
subject only to certain derogations, possible in time of national emergency in
accordance with several human rights instruments. This has also been recognised by
the International Court of Justice in the Advisory Opinion on Nuclear Weapons. 42
The evolution of international human rights law over the last decades has centred
around the question of non-derogable rights and the doctrine is still divided which
human rights are considered so-called ius cogens.
In this connection, Mr. Gonzales, in his address to the Bar Association, made a
fundamental mistake when he said: “respectfully, those who urge the extension of the
right to counsel to these combatants, for the purpose of filing a habeas petition,
confuse the context of war with that of the criminal justice system”.43 What he in fact
did was confusing the laws of war with human rights law.
International humanitarian law, according to common article 2, on the other
hand, generally does not apply in peacetime as its fundamental purpose is to place
restraints on the conduct of warfare. Consequently, in situations of armed conflict
international human rights law and international humanitarian law apply concurrently,
39
40
41
42
43
Protective Parity, at p.1522.
The Declining Significance, p.442, italics in the original.
Supra note 26, at pp.33-43; Johannes van Aggelen, above note 10, Section 1.3
“International Humanitarian Law and International Human Rights Law”; see also Brief
Amici Curiae of 16 Constitutional Law Professor in support of Salim Hamdan v. Donald
Rumsfeld, et al., dated 30 September 2004, United States District Court for the District of
Colombia, case No.1:04-CV-01519-JR, at pp.35-36, citing abundant jurisprudence of
regional tribunals and international human rights treaty bodies.
Supra note 6 at para.25.
Supra note 14, at p.10.
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and a state, party to a conflict, must afford fundamental protection under both
regimes.44
The litmus test comes in the application of the above discussed issues to the
situation of the Taliban and Al Qaeda detainees in Afghanistan, Iraq and outside the
context of war. International humanitarian law has historically recognised that
insurgency is the lowest level of warfare or form of armed conflict to which the laws
of war could be applicable.45 Moreover, it is obvious that the war on terrorism is used
in a metaphoric sense and consequently the “war” between the United States and Al
Qaeda cannot trigger the application of the laws of war outside the territory of
Afghanistan and Iraq.46
Professor Paust correctly maintains that members of Al Qaeda were not
attached to the armed forces of a belligerent or state and consequently cannot be
considered unlawful combatants.47 However, it is my opinion that their status does
not really matter. If they have committed war crimes, they should be subjected to
criminal proceedings. They should be accorded the minimum guarantees in
conformity with customary international humanitarian law (i.e. common article 3 in
combination with article 75 of Protocol I) together with the judicial guarantees
contained in international human rights law. The convergence of protection is clear if
one realises that many of the seven paragraphs of article 75 find their reflection in
international human rights law.
Turning to the situation of Taliban and Al Qaeda combatants captured in
Afghanistan, I would like to make the following observations. Those detainees,
captured in 2001 and 2002 were not captured in occupied territory or in the home
country of a belligerent country. Although the Northern Alliance did control most of
the territory of Afghanistan, the standard set by the Hague Convention and
Regulations, namely the application to international conflicts (the US v. the Taliban as
44
45
46
47
ICJ, above note 6, at para.25; Abella case, above note 34, at para.158.
Army Field Manual,para.11(a),supra text accompanying ftn.23; the Prize Cases, 67 US 635
at 666 “…but a civil war always begins by insurrection against the lawful authority of the
government” Reports of cases argued and determined in the Supreme Court of the United
States December 1862 term, decided on March 10 1863 J.S. Black, volume II, The Banks
Law Publishing Co, New York 1910. Reprinted in J.B. Scott edition. “Cases on
international law, American case book series, St. Paul, West Publishing Company, 1922 at
p. 683.
Panam Inc. v. Aetna Casualty and Surety Co., 505 F.2d 989, at 1013-1015, 2nd Cir, 1974,
ruling that the United States could not have been at war with the PFLP, because it had
engaged in a terrorist acts as a non-state, non-belligerent, non-insurgent actor”; see also K.
Roth, “The Law of War in the War on Terror, Washington’s Abuse of Enemy
Combatants”, Foreign Affairs, vol.83, No1, January/February 2004, pp.1-7; but see D.
Jinks, “September 11 and the Laws of War”, 28 Yale JIL, 2003, pp.1-49 at p.9; J. Gathi,
“Foreign and Other Economic Rights upon Conquest and under Occupation: Iraq in
Comparative and Historical Context”, Univ. Pa. J. Int’l Econ. L., vol.25, No.2, Summer
2004, pp.491 at p.510, where the author refers to the continued erosion of the view that
war occurs between states.
Supra note 37 at p.1342, ibid., War and Enemy Status after 9/11: Attacks on the Laws of
War, 28 Yale JIL 2003, pp.325-335.
Van Aggelen, A Response to John C. Yoo
11
the government of Afghanistan), was nevertheless fulfilled.48 Consequently, they are
protected by the Geneva Conventions as the US as well as Afghanistan are party, with
the ensuing legal obligation to accord them, on an individual basis at least, the above
mentioned minimum protection to which they are entitled.49
Finally, it is clear that the US-led occupation of Iraq triggers beyond any doubt
the application of the Geneva Conventions. The Department of Defence, in the early
stages of the occupation labelled a small number of detainees as “unlawful
combatants”, without giving reasons for this classification.50 DOD maintained that
many detainees were captured on the battlefield before the start of the occupation,
after President Bush declared an end to major combat operations on 1 May 2003. Mr.
Callen argues that the detainees captured prior to that date in areas not fully under the
control of Coalition forces, should be labelled battlefield unlawful combatants and
consequently are not entitled to protection.51
It should be noted however that the law of military occupation does not
require full control of the occupied territory.52 Even if this category does not appear
in the Geneva Conventions, because during the negotiations delegates did exclude
these combatants from protection without giving reasons, I tend to disagree with Mr.
Callen’s position.
In addition to the protection of lawful combatants under the Third
Convention and some categories of unlawful combatants under the Civilian
Convention, it should be noted that battlefield unlawful combatants still benefit from
the residual protection under customary international humanitarian law. Although the
question arises whether unlawful combatants, labelled as such by the American
government and taken from Afghanistan and Iraq to Guantanamo, would be entitled
to protection under the Civilian Convention, the constraints of this Response do not
permit discussion of this aspect.53
In view of a recently disclosed legal opinion at the request of Mr. Gonzales,
Counsel to the President, dated 19 March 2004 from the Assistant Attorney General,
Office of the Legal Counsel, one important aspect should nevertheless be shortly
discussed. The legal opinion concerns the permissibility of relocating certain protected
persons from Iraq, i.e the applicability of article 49 of the Fourth Geneva Convention.
It is argued that, because Iraq is not the party to Hague Convention of 1907, it
48
49
50
51
52
53
See in general M. Bothe, Occupation, Belligerent, in R. Bernhardt (ed.), 3 Encyclopedia of
Public International Law, 1997, p.763.
But see Callen, supra note 26 at pp.1068-1070, who concludes that in view of article 4 of
the Civilian Convention’s nationality requirements, the only detainees who would be
covered would be Afghanis and nationals from neutral states that do not have diplomatic
relations with the United States, at p.1070.
DOD Briefing entitled “Enemy Prisoner of War Briefing from Kuwait City”, dated 8 May
2003, available at http://www.defenselink.mil/transcripts/2003/tr20030508-0160.html.
Supra note 26 at p.1065.
G. von Glahn, “The Occupation of Enemy Territory: a Commentary on the Law and
Practice of Belligerent Occupation”, 1957, at p.28.
See Johannes van Aggelen, supra note 10, Section III.
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3 Chinese JIL (2004)
cannot be considered bound by that Convention as a matter of treaty law.54 However,
even if that were the case article 2, para. 3 of the Civilian Convention, which
incorporates the essential elements of the previous conventions, provides that
“although one of the Powers in conflict may not be a party to the present Convention,
the powers who are parties thereto shall remain bound by it in their mutual relations”.
Moreover, article 4, para.1 protects persons who, “at a given moment and in any manner
whatsoever find themselves … in the hands of a party to the conflict or occupying
power of which they are not nationals” (emphasis supplied). Despite the text of
article 49, para.1, which provides that “individual or mass forcible transfers … to
territory of the Occupying Power …, are prohibited, regardless of their motive, the
opinion concludes that article 49(1)’s prohibition of forcible transfers, like its
prohibition of deportations, does not extend to the removal, pursuant to local
immigration law, of protected persons who are illegal aliens.”55. The opinion
consequently considers the unlawful combatants in question as illegal aliens. As I
maintain in my article referred to above, the territory of Guantanamo is territory
which falls under the jurisdiction of the occupying power. Consequently, the transfer
of unlawful combatants is contrary to the letter and the spirit of the Geneva
Convention.
3. Questioning of Prisoners
Professor Yoo considers that the prohibition on disadvantageous treatment of POW’s
in article 17 would imply that they would get even better treatment than that afforded
to criminal suspects under US law. In addition, the Geneva Convention provides, in
his opinion, a number of human comforts not guaranteed to criminal suspects. He
emphasises that POW’s who refuse to answer may not be threatened, insulted, or
exposed to unpleasant or disadvantageous treatment of any kind. He omits in this
connection to refer to the first part of paragraph 4 where it is clearly stated that no
physical or mental torture, nor any other form of coercion may be inflicted on
prisoners of war to secure from them information of any kind whatsoever. Relevant
in this connection is also articles 31 and 32 of the Civilian Convention covering the
same matter.
His position is in this regard is that non- observation of the Geneva
Convention would have important consequences besides national security and the
collection of life-saving military intelligence (Yoo, p.137). In search for this so-called
life-saving military intelligence, the world has recently been confronted with the reality
of non-abiding by the relevant articles of the conventions. The scandal which took
place in Abu Ghraib prison in 2003, had as its only positive consequence that many
pertinent documents were declassified and made public.
This limited length of this commentary only permits to highlight a few aspects
of the interrogation practices conducted by the Americans. In a memorandum for the
54
55
at p.7, ftn.7, on file with author.
Ibid at p. 7, emphasis supplied.
Van Aggelen, A Response to John C. Yoo
13
Chairman of the Joint Chiefs of Staff dated 19 January 2002, the Combatant
commanders were instructed to treat detained Taliban and Al Qaeda detainees
humanely, consistent with military necessity and the principles of the Geneva
Conventions.56
In a memorandum dated 11 October 2002 signed by Major-General Dunlavey,
it was proposed to intensify the counter resistance strategies aimed at enhancing
efforts to extract additional information. He concluded that these techniques did not
violate US or international law. The techniques consisted, i.a., of intimidation, the use
of stress positions, the provision of light and auditory stimuli, hooding during
transportation, using individual phobias to induce stress and using wet towels to
induce the misperception of suffocation.
Another memorandum dated 11 October 2002 from Ms. Beaver, Staff Judge
Advocate addressed to the Joint Task Force 170 at Guantanamo Bay, clearly
stipulated that the detainees held there were not protected by the Geneva
Conventions (para.2) and that the United States had made a reservation to article 16
of CAT and article 7 of the ICCPR (para.3). However, it was acknowledged that
physical abuse could constitute a violation of article 128 of the US Uniform Code of
Military Justice (UCMJ) (para.4).
On 22 June 2004 the Department of Defense released more details on the
interrogation process.57 It appeared that the Secretary of Defense initially approved
17 interrogation techniques which were in accordance with the standing doctrine
outlined in FM 34-52. However, due to the high-level threat of Al Qaeda affiliates
trained in resistance methods, he approved an additional seven techniques on 16 April
2003. This approval came upon the recommendation by a working group which
consisted of representatives of the military departments, general counsels, the Judge
Advocate General of the armed services, defence policy, the joint staff and the
Defence Intelligence Agency. Although this working group had recommended 35
techniques, none of those approved, ordered, authorised, permitted or tolerated
torture.
The report by the Independent Panel to Review DOD Detention Operations,
released on 24 August 2004 (the Schlesinger report), in this connection stated that
pressures for additional intelligence and the more aggressive methods sanctioned by
the Secretary of Defense memorandum, resulted in stronger interrogation techniques
that were believed to be needed and appropriate in the treatment of the detainees
defined as unlawful combatants at Guantanamo, in Afghanistan and later in Iraq58.
The report also mentions that some techniques, used in Afghanistan and
Guantanamo, did not explicitly figure in the Field Manual, because President Bush
had determined that individuals subjected to these interrogation techniques fell
outside the protection of the Geneva Conventions (p.82). Interrogators and lists of
techniques circulated from Guantanamo and Afghanistan to Iraq. (pp.9, 82 )
56
57
58
All the memoranda referred to are on file with the author.
See http://www.defenselink.mil/releases/2004nr20040622-0930.html.
At p. 8
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3 Chinese JIL (2004)
Although the report concluded that the vast majority of the detainees had been
treated appropriately in conformity with US policy and directives (p.18),the Panel
nevertheless recommended that the US needs to redefine its approach to customary
and treaty international humanitarian law, which must be adapted to the realities of
the nature of conflict in the 21st century. (p.91)
The report contains a number of appendixes. Appendix D lists the
interrogation policies in Guantanamo, Afghanistan and Iraq; appendix E provides an
evolution of interrogation techniques at Guantanamo and appendix G contains
information on psychological stress as a result of abusive of treatment.
At the date of issue of the report approximately 300 incidents of alleged abuses
of detainees across the joint operations area had been reported; 66 investigations
concluded that detainees had been abused of which eight occurred in Guantanamo,
three in Afghanistan and fifty- five in Iraq. These abuses had been prosecuted in the
military justice system camp and non-judicial punishment had been meted out. (pp.1213).
Another report, concentrating entirely on the Abu Ghraib prison, was issued
on 25 August 2004. The investigation was carried out by LTG A. Jones and MG G.
Fay and dealt with the activities of the 205th Military Intelligence Brigade.
They defined abuse as treatment of detainees that violated US criminal law or
international law and treatment that was inhumane or coercive without lawful
justification. Whether the soldier or the contractor knew, at the time of the act, that
the conduct violated any law or standard, is not an element in the definition. (p.15).
The investigators made a specific finding on so-called ghost detainees. It was clear
that the interrogation practices of other government agencies led to a loss of
accountability at the prison. Interrogation should follow strict Department of
Defense practices and rules. (p.113). In this connection Mr. Jones observed that at
Abu Ghraib and elsewhere in Iraq, the handling of detainees, appropriately
documenting their capture, and identifying and accounting for them, were all
dysfunctional processes.
Moreover, a review of different interrogation techniques revealed the need for
clear guidance in accordance with the basic Field Manuals. When army soldiers and
other agency personnel operate in the same areas, he concluded, guidelines became
blurred. He predicted that future joint operational environments could present a
potential mix of lawful and unlawful combatants and a variety of different categories
of detainees. Techniques used during initial battlefield interrogations, as opposed to a
central detention facility, differ in terms of technical versus more strategic level
information collection. The experience, maturity, and source of interrogators at each
of these locations should dictate a change in techniques. (p.21).
Mr. Fay, in contrast to the above-mentioned Schlesinger report, found that
certain individuals had committed offenses in violation of international and US law
not [sic] to include the Geneva Conventions and the UCMJ and violated US Army
values (at p.7). He recommended that detention centres be established in accordance
with Army Regulation 190-8 to ensure safety and compliance with the Geneva
Conventions. In additional, he recommended to protect the detainees in accordance
with the Fourth Geneva Convention. (p.111)
Van Aggelen, A Response to John C. Yoo
15
A recently released report mentioned in this connection that congressional
hearings into the abuses committed by US officials, also questioned the scope of
interrogation tactics generally used by US actors.59 The congressional hearing entitled
“Hearing on Allegations of Mistreatment of Iraqi prisoners before the Senate Armed
Services Committee” were held in May 2004.60
As far as sanctions is concerned, the UCMJ regulates the conduct of all
persons serving in the US armed forces.61 The UCMJ applies worldwide and persons
subject to its jurisdiction, who can be court-martialled include US any service member
as well as certain civilians in time of war and serving with or accompanying an armed
force in the field and POW’s.62
Finally, military personnel and others who left the service or who were civilians
at the time of the alleged crime can be prosecuted in federal district courts according
to the Torture Statute63. The Statute is extra territorial, “covering whoever outside
United States commits or attempts to commit torture”. In addition war crimes,
including grave breaches of the Geneva Conventions, can be prosecuted either under
10 U.S.C.para.818, which incorporates the laws of war as offences against the laws of
the United States in conjunction with 18 U.S.C. § 3231 or under 18 U.S.C. § 2441 for
grave breaches of the Convention and common article 3.
Conclusion
It is clear that Professor Yoo’s position is untenable in view of the explanations given
above. Over 50 years ago the late Judge Lauterpacht finished an article on the laws of
war with the frightening conclusion that if international law is… on the vanishing
point of law, the law of war is even more on the vanishing point of international law. 64
It should be recalled that almost 140 years ago in 1866, the US Supreme Court did
give a ruling which should be a yardstick for the American government in complying
with international norms at the beginning of the third millennium. In the Ex Parte
Milligan case it held, i.a.:
“Those great and good men forsaw that troublous times would arise, when rulers
and people would become restive under restraint, and seek by sharp and decisive
measures to accomplish ends deemed just and proper; and that the principles of
constitutional liberty would be in peril, unless established by irrepealable law…
59
60
61
62
63
64
Association of the Bar of the City of New York and Center for Human Rights and
Global Justice, “Torture by Proxy: International and Domestic Law Applicable to
Extraordinary Renditions”, New York ABCNY and NYU School of Law, 2004.
108th Congress, available at http://armed-services.senate.gov/.
10 U.S.C. para.801-941(1994 and Supp. IV,1999)
at para.801, 802; the UCMJ does not define the term POW and it is uncertain whether this
term has the same meaning as in the Third Geneva Convention.
18 U.S.C. para.2340.
H. Lauterpacht, “The problem of the Revision of the Law of War”, 29 British YBIL, 1952,
pp.360-382 at p.382.
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3 Chinese JIL (2004)
The Constitution of the United States is a law for rulers and people , equally in
war and in peace, and covers with the shield of its protection all classes of men, at
all times, and under all circumstances. No doctrine, involving more pernicious
consequences, was ever invented by the wit of man than that any of its provisions
can be suspended during any of the great exigencies of government. Such a
doctrine leads directly to anarchy or depotism, but the theory of necessity on
which it is based is false; for the government, within the Constitution, has all the
powers granted to it, which are necessary to preserve its existence”.65
65
Ex Parte Milligan, 71 U.S., 4 Wall. at 119.