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Transnational Armed Conflict: A “Principled” Approach to the Regulation of Counter-Terror Combat Operations

Published online by Cambridge University Press:  19 March 2012

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Abstract

Transnational armed conflicts have become a reality. The increasing sophistication of terrorist organizations, their increasingly transnational nature, and their development of military strike capabilities, push and will continue to push States to resort to combat power as a means to defend against this threat. Relying on the factual fiction that the acts of such terrorists must be attributable to the States from which they launch their operations, or on the legal fiction that the use of military combat power to respond to such threats is in reality just extraterritorial law enforcement, fails to acknowledge the essential nature of such operations. Because these operations invoke the authority of the LOAC, they should and must be treated as armed conflicts.

LOAC principles must be identified and must be broad enough to provide the authority necessary to bring the transnational enemy to submission while ensuring that that authority does not override fundamental humanitarian protections for victims of war: This Article proposes three essential pillars of this regulatory foundation: military necessity, targeting (object/distinction and proportionality), and humane treatment. These principles provide the balance between authority and obligation that is so essential for the effective and disciplined application of combat power Like the treatment of internal armed conflict, these pillars can form a foundation for a more comprehensive treatment of regulatory analysis, encompassing other issues such as command responsibility, criminal liability, access to judicial review, perfidy and treachery, and medical obligations.

Type
Symposium on Complementing International Humanitarian Law: Exploring the Need for Additional Norms to Govern Contemporary Conflict Situations
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2009

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References

1 Hamdan v. Rumsfeld, 548 U.S. 557, 629-30 (2006).

2 Id. at 631.

3 Id. at 634.

4 The provision is referred to as “Common” Article 3 because it is found identically in each of the four Geneva Conventions. Common Article 3 states:

Art 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 abovementioned 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.

Id.

5 See Hamdan v. Rumsfeld, supra note 1, at 631 n.63; see also Duffy, Helen, The War on Terror and the Framework of International Law 227 (2005)Google Scholar.

6 Hamdan v. Rumsfeld, supra note 1, at 630.

7 Murphy, Sean D., Evolving Geneva Convention Paradigms in the “War on Terrorism”: Applying the Core Rules to the Release of Persons Deemed “Unprivileged Belligerents,” 75 Geo. Wash. L. Rev 1105, 1148 (2007)Google Scholar.

8 See Mr.Bellinger, John, State Department Briefing (Oct. 19, 2006)Google Scholar available at LEXIS, News File; See Day to Day: What's Behind Bush's Push to Redefine Common Article 3?, (National Public Radio broadcast Sept. 20, 2006)Google Scholar; Memorandum from Jay S. Bybee, Assistant Attorney General, U.S. Department of Justice, to Albert R. Gonzalez, Attorney General, & William J. Hughes II, General Counsel, Department of Defense (Jan. 22, 2002); Hearing on the Authority to Prosecute Terrorists Under The War Crime Provisions of Title 18 Before the S. Comm. on the Judiciary, 109th Cong. 4-6 (2006) (Statement of Steven Bradbury, Acting Assistant Attorney General of the Office of Legal Counsel, Department of Justice).

9 See generally Graham, David E., The Treatment and Interrogation of Prisoners of War and Detainees, 37 Geo. J. Int'l L. 61 (2005)Google Scholar.

10 Gordon England, Deputy, Office of the Secretary of Defense, Memo: Application of Common Article 3 of the Geneva Conventions to the Treatment of Detainees in the Department of Defense (July 7, 2006)Google Scholar, available at http://www.fas.org/sgp/othergov/dod/geneva070606.pdf; Babington, Charles & Abromowitz, Michael, Bowing to Justices, Administration Says It Will Apply Treaties to Terror Suspects, Wash. Post, at A1 (July 12, 2006)Google Scholar, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/07/11/AR2006071100094.html.

11 U.S. Dep't of the Army, Field Manual 2-22.3 Human Intelligence Collector Operations (2006)Google Scholar.

12 Id. para. 5-74.

13 Military Commissions Act of 2006 § 948b(a), 10 U.S.C. § 948b(a) (2006).

14 War Crimes Act of 1996, 18 U.S.C. § 2441(d) (2006).

15 Military Commissions Act of 2006 § 6, 18 U.S.C. § 2441(c)(3)(2006).

16 Hamdan v. Rumsfeld, supra note 1, at 629.

17 One common critique of the transnational armed conflict proposal is that it somehow invites or legitimizes the conduct of military operations against non-State transnational enemies. As the authors have argued elsewhere (see Corn, Geoffrey S. & Jensen, Eric T., Untying the Gordian Knot: A Proposal for Determining Applicability of the Laws of War to the War on Terror, Temple L. Rev.Google Scholar (forthcoming), available at http://ssrn.com/abstract=1083849), we do not believe this to be the case. Instead, we accept the inevitability of the authorization of such military operations, and seek only to establish a triggering mechanism to ensure that when a State employs its armed forces in such a capacity, those forces are bound by a regulatory framework that matches the fundamental nature of the authority invoked by the State. Accordingly, acknowledging applicability of fundamental LOAC principles to include the principle of military necessity, will ensure not that the State is empowered to take measures it deems necessary to address the transnational threat—a given in the view of the authors—but that the power invoked by the State is limited consistently with the nature of that principle as it has evolved.

18 See United States v. Hamdan, Ruling on Defense Motion for a Bill of Particulars, June 3, 2008 (indicating that “the Government has repeatedly declared that its theory at trial will be that the armed conflict between the United States and al Qaeda/bin Laden began not later than 1996”), available at http://www.defenselink.mil/news/D-036%20For%20Bill.pdf.

19 Corn & Jensen, supra note 17.

20 Hamdan v. Rumsfeld, supra note 1, at 567.

21 10 U.S.C. § 818; see also MajorAldykiewicz, Jan E. & MajorCorn, Geoffrey S., Authority to Court Martial Non-U.S. Military Personnel for Serious Violations of International Humanitarian Law Committed During Internal Armed Conflicts, 167 Mil. L. Rev. 74 (2001)Google Scholar.

22 For example, the International Committee of the Red Cross website provides the following explanation of the two types of armed conflicts:

International humanitarian law distinguishes between international and non-international armed conflict.

International armed conflicts are those in which at least two States are involved. They are subject to a wide range of rules, including those set out in the four Geneva Conventions and Additional Protocol I.

Non-international armed conflicts are those restricted to the territory of a single State, involving either regular armed forces fighting groups of armed dissidents, or armed groups fighting each other. A more limited range of rules apply to internal armed conflicts and are laid down in Article 3 common to the four Geneva Conventions as well as in Additional Protocol II.

See International Committee of the Red Cross, What is International Humanitarian Law, Advisory Service on International Humanitarian Law, (07/2004), available at http://www.icrc.org/Web/eng/siteeng0.nsf/iwpList104/707D6551B17F0910C1256B66005B30B3. This interpretation of the LOAC is also reflected in the United Kingdom Ministry of Defense, Law of Armed Conflict Manual, which indicates:

The law of armed conflict applies in all situations when the armed forces of a state are in conflict with those of another state or are in occupation of territory. The law also applies to hostilities in which some of those involved are acting under the authority of the United Nations and in internal armed conflicts. Different rules apply to these different situations.

See United Kingdom Ministry of Defence, The Manual for the Law of Armed Conflict para. 3.1 (2004)Google Scholar (emphasis added G.C. & E.T.J.).

23 See, e.g., Brooks, Rosa Ehrenriech, War Everywhere: Human Rights, National Security, and the Law of Armed Conflict in the Age of Terrorism, 153 U. Penn. L. Rev. 675 (2004)CrossRefGoogle Scholar.

24 See Corn & Jensen, supra note 17; see also Corn, Geoffrey, Hamdan, Lebanon, and the Regulation of Armed Conflict: The Need to Recognize a Hybrid Category of Armed Conflict, 40 Vand. J. Transnat'l L. 295 (2007)Google Scholar.

25 President George Bush, Memo: Humane Treatment of al Qaeda and Taliban Detainees (Feb. 7, 2002), available at http://www1.umn.edu/humanrts/OathBetrayed/Bush%202-7-02.pdf.

26 GCI, art. 2-3; GCII, art. 2-3; GCIII, art. 2-3, GCIV, art. 2-3.

27 GCI, art. 2, (“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…”).

28 Id. at art. 3 (“In the case of armed conflict not of an international character …”).

29 Id. (“occurring in the territory of one of the High Contracting Parties…”).

30 Pictet, Jean et al. , Commentary On the Geneva Conventions of 12 August 1949. Vol. I 4243 (1952)Google Scholar [hereinafter GCI Commentary]

31 Final Record of the Diplomatic Conference of Geneva of 1949 (1950-51).

32 APII, art. 1.

33 Hamdan v. Rumsfeld, supra note 1, at 630.

34 Id. at 594.

35 Id. at 629-35.

36 Prosecutor v. Tadić, Case No. IT-94-1-A, Appeal Chamber (July 15, 1999).

37 See Hakimi, Monica, International Standards for Detaining Terrorism Suspects: Moving Beyond the Armed Conflict-Criminal Divide, 33 Yale J. Int'l L. 369 (2008)Google Scholar.

38 Prosecutor v. Tadić, Case No. IT-94-1-A, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, paras. 116, 119 (Oct. 2, 1995); see also Cullen, Anthony, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, 183 Mil. L. Rev. 66 (2005)Google Scholar (providing an excellent analysis of the significance of the Tadić ruling).

39 Id. paras. 126-27.

40 These critiques have been expressed by other experts in the field in two recent symposia: one sponsored by The Hebrew University Minerva Center for Human Rights in Jerusalem (June 2008), the other at the Naval War College in Newport, Rhode Island (July 2008).

41 See supra note 21 and accompanying text.

42 For example, during a recent symposium addressing LOAC applicability to the conflict in Afghanistan, Professor Yoram Dinstein criticized the validity of a transnational armed conflict (TAC) theory because, inter alia, there was no viable method of assessing the principles applicable to such conflicts. Comments of ProfessorDinstein, Yoram, Naval War College Workshop: “The War in Afghanistan: A Legal Analysis” (July 2008)Google Scholar.

43 Schmitt, Michael N., Garraway, Charles H.B. & Dinstein, Yoram, The Manual on the Law of Non-International Armed Conflict With Commentary (2006)Google Scholar [hereinafter NIAC Manual].

44 Id. at 18-45.

45 Tadić case, supra note 38, paras. 111, 118 & 120; NIAC Manual, supra note 43, paras. 1.2.2-1.2.3, 2.1.1.4.

46 Dinstein, Yoram, The Conduct of Hostilities Under the Law of International Armed Conflict 255 (2004)CrossRefGoogle Scholar.

47 Statement by Brigadier General Kenneth Watkin, Judge Advocate General for the Canadian Defense Forces, made in July 2008 during a symposium held at the Naval War College in Newport Rhode Island.

48 Rogers, A.P.V., Law on the Battlefield 3 (2nd ed. 2004)Google Scholar; Davidson, Michael J., War and the Doubtful Soldier, 19 Notre Dame J.L. Ethics & Pub. Pol'y 91, 153 (2005)Google Scholar; Shoyele, Olugbenga, Armed Conflicts and Canadian Refugee and Law Policy, 16 Int'l J. Refugee L. 547, 555 (2004)Google Scholar.

49 See Rogers, supra note 48, at 4-5.

50 Detter, Ingrid, The Law of War 394 (2nd ed. 2000)Google Scholar (“There is great difficulty in reconciling any humanitarian rules of warfare with ‘military necessity’…. The elusive blanket phrase ‘military necessity’ may undermine any advances made in the humanitarian field since, again, it is a matter for the subjective assessment of the State whether such necessity exists.”).

51 This reality has been reflected in several opinions of the U.S. Supreme Court dealing with the wartime powers of the President in relation to detained enemy combatants. Although not using the term “military necessity,” the Court has repeatedly characterized the detention of enemy combatants as a “necessary incident of war.” This characterization is an obvious synonym for the principle of military necessity. Unable to cite to a specific provision of the conventional law of war authorizing the detention of enemies captured in the context of a non-international armed conflict, the Court has fallen back on the first principle of authority for wartime actions: the necessity derived from the state of conflict itself.

52 Such as employing destructive combat power against al Qaeda operatives in the territory of a neutral country, see CBS News, U.S. Strikes Somalia Reportedly Killing 31, Jan. 9, 2007Google Scholar, available at http://www.cbsnews.com/stories/2007/01/08/world/main233545l.shtml; see also Schmitt, Eric & Mazzetti, Mark, Classified Order Allows U.S. to Attack al Qaeda Worldwide, Int'l Herald Tribune, Nov. 10, 2008Google Scholar, available at http://www.iht.com/articles/2008/11/10/mideast/terror.php.

53 U.S. Dep't of Army, Field Manual 27-10, The Law of Land 3-4 (July 1956)Google Scholar [hereinafter FM 27-10].

54 See, e.g., Flint, Charles A., Challenging the Legality of Section 106 of the USA PATRIOT Act, 67 Alb. L. Rev. 1183 (2004)Google Scholar.

55 As noted in the preceding section, TAC raises a particular difficult dilemma caused by the intersection of the inherent need to identify groups who are subject to targeting and the unconventional nature of transnational non-state enemies. Developing a theory of targeting based on the notion of “fighters” is one step in the solution of this dilemma. However, because there will always be increased uncertainty as to the combatant character of members of such groups as compared with that of regular armed forces, it is essential to ensure compliance with principles intended to limit the harm inflicted on such personnel to only that amount that is necessary. It is because of this that the principle prohibiting the infliction of unnecessary suffering takes on added relevance in the regulation of TAC. The LOAC requires a balance between destruction and humanity not only where noncombatants are concerned, but even when applying violence to an enemy force. In the practice of the armed forces of the United States, this balance arguably takes two forms, one well accepted, and the other less apparent. It is well accepted that this principle limits the use of weapons or ammunition calculated to cause superfluous injury or suffering, FM 27-10, supra note 53, and there is no plausible reason why this prohibition is not completely applicable to any armed conflict. Indeed, linking the legality of weapons to the nature of an armed conflict would not only be illogical, it would be operationally confusing and inefficient. The principle of preventing unnecessary suffering is found in FM 27-10, and based on the express language of Hague IV, which in Article 23 states: “It is especially forbidden … to employ arms, projectiles, or other materiel calculated to cause unnecessary suffering.” GCIV, art. 23. FM 27-10 interprets this provision as follows:

What weapons cause “unnecessary injury” can only be determined in light of the practice of States in refraining from the use of a given weapon because it is believed to have that effect. Usage has, however, established the illegality of the use of …. irregular-shaped bullets, and projectiles filled with glass, the use of any substance on bullets that would tend unnecessarily to inflame a wound inflicted by them, and the scoring of the surface or the filing off of the hard cases of bullets.

FM 27-10, supra note 53, at 18, para. 53. A less obvious application of this principle is to limit the degree of suffering inflicted on lawful objects of attack to only that which is necessary to bring about the submission of the enemy. It is, perhaps, the most obvious example of the “desire to diminish the evils of war,” Id. at 3, which, according to U.S. Army Field Manual 27-10, is the fundamental purpose of the law of war: “The conduct of armed hostilities on land is regulated by the law of land warfare which is both written and unwritten. It is inspired by the desire to diminish the evils of war by: a. Protecting both combatants and noncombatants from unnecessary suffering.” Id.

Relying on this principle to limit the amount of suffering inflicted upon enemy combatants (or fighters) to only that which is necessary to achieve the enemy's submission is thoroughly consistent with the concept of military necessity. It is military necessity that justifies inflicting suffering upon an enemy combatant. Id. at 4. But as noted above, nations have historically recognized that military necessity justifies inflicting only as much suffering as is necessary to force the enemy to submit. Id. It is also thoroughly consistent with the FM 27-10 “purpose statement” for the law of war quoted above, which identifies the prevention of unnecessary suffering of noncombatants, and the restoration of peace, as key components of the purpose of the law of war. Id. at 3. Prohibiting the infliction of suffering upon enemy forces which cannot be justified as “necessary” for the purpose of bringing about their submission serves both these ends. Of course, the standard for determining what is necessary suffering inflicted on an enemy that has not yet been brought to submission must be more permissive than the standard related to protecting non-combatants. Therefore, this rule should not be read to prohibit a military force from assaulting a lawful military objective with “overwhelming” force. The principle does, however, suggest that there is some limit to the amount of force that can lawfully be brought to bear against a military objective, even if the exact determination of when force exceeds such limits is undefined. Thus, with regard to enemy combatants, the principle prohibiting the infliction of unnecessary suffering is, as A.P.V. Rogers notes, a “brake” on the scope of suffering that may legitimately be inflicted by warriors even when directed at each other.

Whether in the form of prohibiting the employment of weapons which cause unnecessary suffering, or prohibiting the application of force which cannot be considered necessary to subdue an enemy, the principle of preventing unnecessary suffering has obvious applicability to TAC. This principle is at the core of the LOAC, and there is absolutely no logical reason why it should not be applied to such conflicts. In fact, the relationship between preventing unnecessary suffering and mission legitimacy is arguably more pronounced during these type operations than during international armed conflict. This is because the very nature of these conflicts raises troubling questions related to the status of non-State actors. Accordingly, a principle that results in restraint in the means used to attack these personnel will contribute to the overall perception of legitimate military operations.

56 This includes kinetic or non-kinetic capability. For example, a commander may employ a conventional kinetic munition to target an enemy capability, or may choose to employ a non-kinetic capability, such as information, to achieve the desired effect.

57 This concept is referred to as “effects based targeting.” It involves tailoring the application of combat power to the stated operational effect desired, which could include destroying, disabling, disrupting, or harassing an enemy.

58 Lett, Ronald R., Kobusingye, Olive Chifefe, & Ekwaru, Paul, Burden of Injury During the Complex Political Emergency in Northern Uganda, 49 Can. J. Surgery 1, 51 (2006)Google ScholarPubMed, available at http://www.cma.ca/multimedid/static/Content/HTML/NO/12/cjs/vol-49/issue-1/pdf/pg51.pdf.

59 GCIII, art. 4A reads:

A. Prisoners of War, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

(1) Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognizable at a distance;

(c) that of carrying arms openly;

(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority … not recognized by the Detaining Power.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

60 API, art. 43, para. 2.

61 Id. art. 50, para. 1.

62 Id. art. 51, para. 3.

63 Id.

64 NIAC Manual, supra note 43, at 10 (quoting Protocol I & II Commentary); Rogers, supra note 48, at 3 (“The great principles of customary law, from which all else stems, are those of military necessity, humanity, distinction and proportionality.”).

65 Tadić case, supra note 38, paras. 102-04.

66 NIAC Manual, supra note 43, para. 1.2.2.3.

67 Id. para. 1.1.2.a.

68 Id. para. 2.1.1.

69 Int'l & Operational Law Dep't, The Judge Advocate General's School, U.S. Army, Operational Law Handbook 86 (MajRawcliffe, John ed., 2007)Google Scholar (“b. Declared Hostile Force. Any civilian, paramilitary or military force or terrorist that has been declared hostile by appropriate U.S. authority. Once a force is declared to be ‘hostile,’ U.S. units may engage it without observing a hostile act or demonstration of hostile intent; i.e., the basis for engagement shifts from conduct to status.”); Center for Law and Military Operations, The Judge Advocate General's Legal Center & School, U.S. Army, Legal Lessons Learned From Afghanistan and Iraq Volume I Major Combat Operations (Sept. 11, 2001 -May 1, 2003) 312 (1 Aug. 2004)Google Scholar (sample ROE card for Operation Iraqi Freedom).

70 HCJ 769/02 The Public Committee Against Torture in Israel v. The Government of Israel [Dec. 14, 2006] (unpublished), at para. 40.

71 Sandoz, Yves, et al. , Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 para. 1942 (1987)Google Scholar [hereinafter Protocol I & II Commentary].

72 Corn & Jensen, supra note 17, at 5.

73 Id. at 57.

74 See Lebanon/Israel: Hezbollah Hit Israel with Cluster Munitions during Conflict, available at http://hrw.org/english/docs/2006/10/18/lebano14412.htm (last visited Apr. 1, 2009).

75 But see Reagan, Ronald, The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims: Letter of Transmittal, 81 Am. J. Int'l L. 910, 911 (1987)CrossRefGoogle Scholar.

76 Although this “proportionality” test is used in API to define the meaning of an indiscriminate attack, see API, art. 51(5)(b); and as a component of the Article 57 precautions in the attack obligations, see id. at art. 57(2)(a) and (b), it is a “stand-alone” provision in FM 27-10, which, in paragraph 41, indicates that “.loss of life and damage to property incidental to attacks must not be excessive in relation to the concrete and direct military advantage to be gained.” FM 27-10, supra note 53, at 5.

77 NIAC Manual, supra note 43, para. 2.1.1.4.

78 API, art. 58.

78 Corn, Geoffrey S., International and Operational Law Notes: Principle 7: Distinction Part II, Army L. 35 (June 1999)Google Scholar.

80 See GCI Commentary, supra note 30, at 52 (emphasis added G.C. & E.T.J.).

81 Rodgers, supra note 48, at 48-57.

82 See Corn, supra note 24, at 315-20 (discussion policy based application of LOAC principles during contemporary military operations).

83 Id. at 53.

84 Humane treatment operates as a “counter-weight” against the human instinct of revenge or retribution that is so easily evoked by participation in mortal combat. One of the most difficult challenges for any battlefield warrior is to overcome the natural aversion of civilized society to the killing of another human being. Because of this, professional armed forces have long understood that preparing warriors for battle requires the dehumanization of the enemy. An interesting pop culture illustration of this is seen in a movie about the Korean War, “Fixed Bayonets!” During one scene, a young soldier confronts his first opportunity to kill an enemy with direct fire from his rifle. He is incapable of pulling the trigger, and another soldier must then shoot the enemy. However, his sergeant mistakenly believes that the soldier who froze was actually the one who killed the enemy, and the following dialogue ensues: “[A]ll you gotta remember is that you're not shooting at a man; you're shooting at an enemy. Once you remember this you are over the hump; you are a rifleman.”84 This fictional episode reflects the reality that transforming a civilian into a warrior requires dehumanization of the enemy. As brutal as this may sound, it has become a core tenet of military training, particularly in response to empirical studies following World War II which indicated that a large percentage of front line soldiers, like the fictional soldier in this episode, were unable to overcome their aversion to killing and as a result never fired a shot. It is therefore no accident that soldiers train by shooting at “silhouettes” and that the enemy is referred to with negative characterizations.

85 Denial of quarter could never be justified by necessity as the captured individual is no longer an active participant in hostilities. The prohibition against denial of quarter is encompassed in the specific prohibitions against murder and summary execution contained in Common Article 3.

While Common Article 3 did not specifically address the denial of quarter, the humane treatment article of API does include an express prohibition against denying quarter. See APII, art. 4. This is highly instructive for purposes of TAC because APII addressed treatment obligations protecting captured individuals who would not be entitled to any special status, such as that of prisoner of war. The ICRC Commentary to APII explains the express inclusion of the prohibition as a component of humane treatment:

The rule on quarter

This is one of the fundamental rules on the conduct of combatants inspired by Hague law. It is aimed at protecting combatants when they fall into the hands of the adversary by prohibiting a refusal to save their lives if they surrender or are captured, or a decision to exterminate them. The text of the draft was more explicit and read as follows: “It is forbidden to order that there shall be no survivors, to threaten an adversary therewith and to conduct hostilities on such basis.” The present wording is briefer, but does not alter the essential content of the rule. Clearly respect for this rule is fundamental. It is a precondition governing the application of all the rules of protection laid down in the Protocol, for any guarantees of humane treatment, any rule on care to be given the wounded and sick, and any judicial guarantees would remain a dead letter if the struggle were conducted on the basis of orders to exterminate the enemy.

The inclusion of this provision amongst the fundamental guarantees laid down in Article 4 is of special importance. In fact, it indirectly indicates the moment from which combatants who are no longer able to fight are protected by Part II, a function originally assigned in the draft to the rule on safeguarding enemies ‘hors de combat’ Protection of enemies ‘hors de combat’ is in a way the final stage of the present rule on quarter, in the sense that the prohibition against ordering that there will be no survivors affects the concept of military operations even before the enemy is ‘hors de combat.’

See Protocol I & II Commentary, supra note 71, at 1371.

86 GCI Commentary, supra note 30, at 53.

87 U.S. Dep't of Army, Field Manual 5-170, Engineer Reconnaissance 711 (July 1998)Google Scholar.

88 The creation of the detainee category of “unlawful enemy combatant” was unfortunately used at certain points in time as a basis to “manipulate” the humane treatment standard. This is clearly reflected in the President Bush's February 2002 memorandum where he indicates that captured al Qaeda operatives are entitled to humane treatment as a matter of “policy” and subject to the dictates of military necessity. However, the basic components of the humane treatment obligation come into force not as a matter of policy, but as a matter of law in the context of TAC.

89 Acknowledging the indelible nature of the specific prohibitions of Common Article 3 does not, however, resolve every question regarding detainee treatment. The combat environment is one of extreme uncertainty, and even the most comprehensive detainee treatment doctrine is susceptible to this uncertainty. However, as a general proposition, the humane treatment obligation can be effectively implemented by building detainee treatment on a three pillar foundation. The first pillar is to ensure detaining forces recognize that once hors de combat, an enemy is no longer the permissible object of hostility. The second pillar is to comply with the express prohibitions contained in Common Article 3. The final pillar is to ensure that at a minimum, conditions for detainees are never worse than those for the detaining forces. This last pillar is the essential solution to the variables of the combat environment, for it ensures that “situational” application of the humane treatment mandate is linked to a standard of reasonableness. For example, if rations are in short supply, they will be shared equally by detaining and detained forces; medical treatment will always be based on principles of triage applied equally to detaining and detained personnel; the shelter provided for detainees will mirror that provided for detaining forces, and so on.

90 See APII, art. 5.

91 Of course, there is always a possibility that an individual detainee may be subject to criminal sanction for his or her pre-capture conduct. While the humane treatment obligation in relation to such sanction implicates procedural fairness concerns, once an individual has been sentenced to a period of confinement as a criminal sanction the basis for detention shifts from preventive to penal. So long as procedures used during the criminal process meet minimum standards of fundamental fairness, and conditions of penal confinement comport with the humane treatment obligation, penal detention comports with the obligation.

92 Boumediene v. Bush, 128 S. Ct. 2229, 2238 (2008).

93 Hamdan v. Rumsfeld, supra note 1, at 630.

94 Id. at 633.

95 Id. at 634-35. Article 75 of API is best understood as an express extension of the Common Article 3 humane treatment mandate to international armed conflicts. See Protocol I & II Commentary, supra note 71, at 861. It expanded the non-exclusive list of requirements derived from the humane treatment obligation. This inherent relationship between Common Article 3 and Article 75 explains why a plurality of the Court would look to Article 75 to illuminate the meaning of Common Article 3. What seemed even more significant to the plurality was the more extensive treatment by Article 75 of the “regularly constituted” tribunal aspect of the humane treatment mandate. See Hamdan v. Rumsfeld, supra note 1, at 634-35. Article 75 amplifies extensively the meaning of a “humane” adjudication of alleged criminal misconduct, and in particular the right of a defendant to be present during the trial.

APII includes an almost identical articulation of the components of a fair and regularly constituted tribunal. Indeed, because this treaty was not only created to regulate non-international armed conflicts, but has unlike API never been explicitly rejected as “fatally flawed” by the United States, it is somewhat inexplicable why the Hamdan plurality did not rely on it in conjunction with or in lieu of API. More importantly for purposes of this analysis, consideration of APII as a source of the definition for the principle of humane treatment points to the same conclusion as the analysis of Article 75. Like API, APII also includes “fundamental guarantee” provisions that address the implementation of the humane treatment mandate vis-à-vis criminal adjudications. Unlike API, the protections afforded to individuals subject to prosecution by APII are contained in a distinct article, Article 6, titled “Penal Prosecutions.”

96 Id. at 1396-97 (emphasis added G.C. & E.T.J.).

97 Id. (emphasis added G.C. & E.T.J.).

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