Exploring U.S. treaty practice through a military lens.

Author:Corn, Geoffrey S.
Position:Continuation of III. Self-Execution: Hamdan and Noriega Squared through VIII. Conclusion, with footnotes, p. 589-628

This should not, however, be seen as suggesting that these treaties are in some way insignificant. To the contrary, they remain central to the formulation of U.S. national security policies and to the protection of individuals under U.S. control. Thus, while the statutory prohibition against individual invocation of the Geneva Conventions in U.S. courts has in large measure superseded questions of self-execution, how these protections, as well as other principles and rules of both treaty and customary law of war impact U.S. action remain complex and important issues. Finally, even where treaty provisions are considered to apply to U.S. litigation as the result of statutory incorporation, the meaning, scope, and effect of these treaty rights continues to be a source of uncertainty and debate. (143)


    Because LOAC treaties are multilateral commitments between large numbers of states, (144) treaty meaning will inevitably be susceptible to varying interpretations. As a result, conflicting interpretations of treaty obligations are almost as inevitable as war itself, with potentially profound consequences to U.S. national security. In re Yamashita (145) and Hamdan v. Rumsfeld (146) provide interesting insight into the impact of domestic treaty interpretation. Both of these cases turned on interpreting a treaty provision, and both illustrate how such interpretation may produce operational and strategic consequences extending far beyond the litigant's judicial remedy. These cases are unsurprisingly rare because the Executive, and more specifically subordinate military officers, play the dominant role in LOAC treaty interpretation. Although few in number, judicial LOAC interpretations provide important clarity for the military and have significantly affected the evolution of international law. (147)

    The case of In re Yamashita (148) provides an interesting example of the relationship between Executive and judicial treaty interpretation. Yamashita, who qualified as a POW pursuant to the 1929 Geneva Convention Relative to the Treatment of Prisoners of War (1929 Geneva III) (149) (a treaty ratified by the United States in 1932), (150) faced charges based on the widespread war crimes committed by his subordinates in the final days of the Japanese occupation of the Philippines. Although Yamashita took command only shortly before allied forces invaded the islands, and as a result had very little opportunity to assert his authority over his subordinates, the charges against him alleged that he was personally responsible for the widespread abuses of those forces. (151)

    The Supreme Court reviewed Yamashita's trial and conviction by military commission pursuant to a writ of habeas corpus challenging a range of issues related to the trial. The Court's endorsement of a charge and conviction on a theory of vicarious command responsibility--even in the face of evidence that Yamashita lacked the capacity to communicate with or to control most of his subordinates--is the most widely known aspect of the decision. However, Yamashita also challenged the legality of trial by military commission itself, arguing that use of a military commission, and not a General Court-Martial, violated the 1929 Geneva III. (152)

    Like the 1949 successor version of Geneva III, the 1929 Prisoner of War Convention included provisions to ensure POWs subjected to criminal prosecution received a fair trial process. Instead of detailing with precision the procedural and evidentiary rules applicable to such trials, the treaty imposed upon the detaining power an obligation to use the same tribunal that would be used for its own personnel. Article 63 of the 1929 Convention provided that "[sentences may be pronounced against a prisoner of war only by the same courts and according to the same procedure as in the case of persons belonging to the armed forces of the detaining Power." (153) The assumption seemed clear (although perhaps not completely valid): States will afford their own service members fundamentally fair military trials. Therefore, an obligation to use the same tribunals for POWs effectively ensures fair process for the enemy. Yamashita invoked this provision to challenge trial by military commission, arguing that because the Articles of War prohibited the use of prosecution depositions and hearsay in trials by courts-martial for U.S. military personnel, use of this evidence at his military commission trial violated Geneva III. (154)

    The Supreme Court rejected Yamashita's argument, concluding that Article 63 was inapplicable to his case. (155) The Court based this conclusion on the nature of Yamashita's alleged misconduct. According to the Court, Article 63 applied only after the initiation of detention, not for pre-capture violations of the laws and customs of war subject to trial by military commission. (156) Thus, had Yamashita been tried for misconduct ns a POW, his argument would have had merit. Because this was not the case, the Court concluded that use of evidentiary rules different from those used for trial by court-martial did not violate Geneva III:

    [N]either Article 25 [prohibiting the use of prosecution depositions] nor Article 38 [prohibiting the use of hearsay] is applicable to the trial of an enemy combatant by a military commission for violations of the law of war.... [Examination of Article 63 in its setting in the Convention plainly shows that it refers to sentence "pronounced against a prisoner of war" for an offense committed while a prisoner of war, and not for a violation of the law of war committed while a combatant. (157) This interpretation was consistent with that of several other state parties, (158) although inconsistent with that of the International Committee of the Red Cross. (159) This interpretation, however, also produced a bifurcated approach to allocating the Convention's fair process protections that seemed inconsistent with the treaty's apparent objective: ensuring adequate process is used to ascertain whether the captive did in fact engage in the alleged misconduct. Indeed, this inconsistency between the ostensible objective of the Convention and the majority's interpretation generated a strong dissent. (160)

    In the 1950 case of Johnson v. Eisentrager, (161) the Supreme Court adopted an almost identical interpretation of the 1929 Geneva III. Eisentrager and his fellow petitioners (162) challenged trial by a U.S. military commission for allegations of precapture war crimes committed in China by asserting, inter alia, that as POWs they could only be tried by the type of tribunal used for the trial of U.S. forces. (163) As in Yamashita, the Supreme Court rejected this invocation of Article 63, concluding it did not apply to POWs tried for pre-capture offenses such as war crimes. (164) According to the Court, "this Article also refers to those, and only to those, proceedings for disciplinary offenses during captivity. Neither applies to a trial for war crimes." (165)

    As with Yamashita, this interpretation was consistent with how some other treaty states interpreted this same provision at the time. Nonetheless, it also deprived individuals qualified for POW status of an important protection: the prohibition on use of tribunals utilizing different rules of evidence and procedure than those considered necessary for the fair trial of the detaining power's own armed forces. Indeed, as Justice Murphy noted in his vociferous Yamashita dissent, this interpretation could not be reconciled with the humanitarian objective of the treaty. (166) If these interpretations did nullify the objective of the treaty, it was a potential outcome inherent in any judicial treaty interpretation.

    The interpretation of Article 63 that led to both these decisions and divided the Yamashita Court was addressed directly in the 1949 revision of Geneva III. Article 102 is successor to Article 29, and provides that "[a] prisoner of war can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power, and if, furthermore, the provisions of the present Chapter have been observed." (167) Article 85 of the 1949 Geneva III eliminated all doubt as to the applicability of this provision to trials for pre-capture (pre-POW) misconduct, providing that "prisoners of war prosecuted under the laws of the Detaining Power for acts committed prior to capture shall retain, even if convicted, the benefits of the present Convention." (168) The associated commentary explains that this provision was included to ensure Article 102 applied to all POW trials, including those for pre-capture war crimes or even pre-capture crimes with no connection to the armed conflict. (169)

    In Hamdan v. Rumsfeld, the Court considered the President's authority--acting in his capacity as Commander in Chief--to convene a military commission to try a captured al Qaeda operative for alleged violations of the laws and customs of war. (170) The Court would again interpret an important provision of the Geneva Conventions, a provision of the Conventions that did not even exist when Yamashita and Eisentrager were decided: Common Article 3. (171)

    Common Article 3--a treaty article included in all four of the 1949 Geneva Conventions--was perhaps the most significant addition to the Conventions when they were revised following World War II. It represented the first inclusion of an article extending international legal regulation to non-international armed conflicts. (172) This new category of conflict regulation was, at that time, focused on hostilities between state authorities and internal opposition groups (i.e. civil wars). Although the state parties were unwilling to extend the full corpus of the Conventions to these internal conflicts, they did ultimately agree that even in these primarily domestic affairs, international law...

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