Here’s a guest commentary by Philip Sundel,* written in his private capacity, responding to this Wall Street Journal op-ed by CAPT Keith Allred, JAGC, USN (Ret.):

Not the Geneva Conventions I Know

I read with interest Captain (ret.) Keith Allred’s opinion piece in the Wall Street Journal “Military Commissions: The Right Venue For KSM”.  While I freely admit that I do not agree with most of his opinions, I find myself compelled to write this comment because of what I consider his mischaracterizations of the law upon which he bases those opinions.  I do not write simply to highlight what I believe are Allred’s errors.  Rather, because lawyers working within this field, most particularly military lawyers, have an obligation to know what the law of armed conflict does and does not provide, my hope is that this counterpoint will contribute to a fuller understanding of the Geneva Conventions.

Allred correctly observes that the law of war provides “both sticks and carrots” to encourage observance of the POW-civilian distinction.  In stating that Geneva’s mechanisms go beyond combatant immunity and targeting, and in addition provide for more favored/less favored treatment of certain types of belligerents, however, he makes claims that are unsupported by the treaties themselves. 

The first statement with which I take legal issue is where, in speaking about the 1949 Conventions, Allred states that “Central to this weighty objective [of preventing a repeat of civilian losses and suffering in World War II] was a scheme for clarifying who could and could not engage in hostilities.”  In fact, the 1949 Conventions provided no substantive clarifications regarding who qualifies as a “privileged belligerent” or “lawful combatant”, the standard that Allred seems to equate with those who can engage in hostilities.  All of the categories in Article 4, GC III of persons engaging in hostilities who qualify as POWs are drawn from Hague Convention IV, of 1907.  While GC III certainly clarified and expanded on many matters from earlier POW treaties, it neither expanded nor significantly clarified eligibility for POW status of persons engaged in belligerent acts.

Similarly, the Geneva Conventions do not contain any provision regarding who cannot engage in hostilities (nor, for that matter, does any other LOAC treaty).  While Allred is correct that the law governing international armed conflicts is based on a simple duality – POW or civilian, there is absolutely no basis in treaty law to support his claim that “civilians may not” engage in hostilities or that “civilians are prohibited from actively taking part in the hostilities.”  Quite simply, no treaty provision declares participation by a civilian to be a violation of the law, nor does any treaty provide for penal sanctions for civilians who do participate.  Far from Geneva being “a scheme for clarifying who could and could not engage in hostilities”, the key concept of civilian was not even defined until 1977, and even then only in the negative (according to AP I a civilian is, effectively, anyone who does not qualify as a POW).  Certainly, civilian participation in hostilities complicates the ability to distinguish between legitimate and illegitimate targets, so an affirmative prohibition might be a wise policy.  Nonetheless, no treaty actually addresses this difficulty by expressly, or even implicitly, prohibiting civilians from participating. 

Quite to the contrary, the reality that civilians will participate in hostilities is implicitly recognized in Article 5 of GC IV, which authorizes derogations from standard rights of communication for certain “protected persons [civilians]” whom a Party to an international armed conflict suspects “engaged in activities hostile to the security of the State.”  Additionally, of course, Common Article 3 of the Geneva Conventions affirmatively recognizes that civilians will engage in hostilities regulated by the Geneva Conventions —  CA 3 governs the conduct of parties engaged in non- international armed conflict.  By definition at least one party to a non-international armed conflict will be a non-State actor; and a non-State party to a conflict can only be composed of civilians. 

Indeed, the term “unlawful combatant” itself is inconsistent with treaty law.  While there are of course unlawful means and methods of warfare, as well as other unlawful acts that can be committed during armed conflict, there is in treaty law no such concept as an unlawful person, let alone an “unlawful combatant”.  As acknowledged by Allred, Geneva provides for only two types of person – POW or civilian, and mandates treatment based exclusively on that duality.  There is therefore no room in treaty law for a legally-significant third category such as “unlawful combatant” — the concept has no place within the bipolar scheme that is Geneva.  Finally, Article 44 of AP I uses the term “combatant” synonymously with Prisoner of War, so many modern commentators also avoid the term “unlawful combatant” because it is an oxymoron.  

Allred also makes the blanket statement that, pursuant to Geneva, “[c]ombatants may be attacked, civilians may not.”  This obviously incomplete characterization of the law may seem like a harmless generalization, but it is in fact central to two of his other incorrect claims about the Geneva Conventions.  The need to ignore the universally recognized truth that civilian participants in armed conflict may be targeted until they have laid down their arms or become hors de combat (in the language of Common Article 3), or  for such time as they are directly participating in hostilities (in the language of AP I),is related to his erroneous claims that civilian participation in hostilities is so antithetical to the Geneva scheme that it is itself a violation the law of armed conflict, and that a civilian who participates in hostilities is an “unlawful combatant”.  All three, interrelated claims are, at best, inaccurate generalizations or oversimplifications of what the treaty law actual says, or does not say.

Finally, I cannot even guess the legal basis for Allred’s claim that “the Geneva Conventions expressly contemplate tribunals for unlawful combatants that are less protective of their rights than the forum guaranteed to lawful combatants”.  The only extensive discussion of substantive and procedural law regarding prosecutions, to the extent that it can even be considered extensive, is with respect to POWs.  Coverage of those issues with respect to civilians is actually rather minimal, and ultimately the minimum standard for any prosecution comes down to Article 75 of AP I and similar articles in AP II (recognized as customary law despite their placement in treaties not ratified by the US).  Consistent with the discussion above regarding the term’s lack of legal significance, the trial of “unlawful combatants” simply is not addressed in a meaningful way in any law of armed conflict treaty.  There certainly is no affirmative recognition of the appropriateness to trying them in some sort of second-class system.

I will leave it to the courts to decide whether military commissions do, in fact, comply with the law of armed conflict.  And while there are many other aspects of Allred’s piece with which I also take issue, or find internally inconsistent, arguably they are not based on claims regarding the Geneva Conventions.  Reasonable minds may differ over what may be the best or most appropriate course of action between several options, and I respect Allred’s right to hold and promote his opinions.  It is only his claims regarding the treaty law relevant to those issues with which I have difficulty.

*Philip Sundel was an active duty Navy JAG, followed by a period as a legal advisor with the International Committee of the Red Cross, and is now a civilian in government practice.  At various points in his career has investigated, prosecuted, defended, and monitored the treatment of persons charged with violations of the laws of war.  This commentary is written in his private capacity.

5 Responses to “Guest commentary: Sundel on Allred on Geneva Conventions”

  1. query says:

    Is Allred by any chance the military judge from the Hamdan case written about in The Challenge (2009)? If so, his WSJ piece isn’t exactly surprising.

  2. Anonymous says:

    Well Query, can you address whether or not he is correct in his analysis?

  3. DC Steve says:

    So, if civilians may lawfully (under GC) take up arms, what exactly does combatant immunity mean. Put differently, what are you immunized from? Are you merely immunized from prosecution under state law?

    Question: If a group of civilians takes up arms, could they be prosecuted by any state having jurisdiction over them for conspiracy to commit murder? And if so, is this fundamentally different from what the MCA tries to accomplish?

    The comment makes a convincing argument that armed civilians do not violate the GCs. However, they should. When combatants look like civilians, they invite the killing of civilians. When combatants (uniformed or not) believe that civilians may be the enemy, you get a lot more dead civilians -sometimes lawfully so. (whether it is lawful to shoot at a car that appears to be a civilian racing towards you, may depend on how often similar cars have turned out to be suicide bombers). The GCs don’t require uniforms so we look pretty, wearing uniforms reduces non-combatant casualties. Promoting (or failing to dis-incentivize) armed civilian combatants, undermines the purpose of the LOW.

    Rules trying to limit war are always being squeezed on both sides. Limit someone’s ability to defend themselves, and the LOW will ultimately be ignored, or worked around. (For example, if you make detaining a combatant too difficult, a state may forgo the danger of capturing them in first place, and just kill them with a drone. Funny, the US hasn’t captured many high value enemies since they started having habeas rights). Ultimately, people who squeeze the LOW too tightly often end up causing unforseen consequences.

    The law of war recognizes (or should) the inevitability of war, but tries to manage its harmful effects by limiting war’s excesses. This system will not be sustainable, however, if the burden of following the LOW falls only one party. Whether Allred is right on the GC, I don’t know. But for the GC system to be sustainable, he should be.

  4. Gitmo JAG says:

    This is the same Judge Allred who presided over the Hamdan trial.

    DC Steve,
    The immunity means that a combatant cannot be prosecuted for conduct during an armed conflict that is within the bounds of the law of war but would otherwise be a criminal offense during a time of peace. The classic example is murder: if the US is not involved in an armed conflict, I can’t shoot a member of the enemy armed forces walking down the street without being liable for murder under domestic law. If we are engaged in armed conflict and I am a combatant, I can shoot a member of the enemy armed forces (lawful target) where/whenever I find him (unless he is wounded, surrendering, etc.). The key to the analysis under the LOW is always determining the type of conflict and the type of person.

    Q2, yes. Civilians can be criminally liable for participating in hostilities b/c they don’t have immunity. The bigger question is which sovereign and in what forum will they be prosecuted? For example, Yemen is not going to prosecute its citizens for blowing up the USS COLE (assuming that there was actually a state of armed conflict in October 2000, as AQ claims there was), and even if it would, the US would not want them tried in Yemen b/c we have no confidence that justice would be served. So, the MCA is an attempt to provide a forum that complies with the LOW to try such offenses.

    Of course, the MCA’s good intentions only pave the road to you know where. In the example above, I assumed there was a state of armed conflict when the USS COLE was attacked — the evidence clearly demonstrates that the US was not at war in October 2000, and our Navy ships were NOT lawful targets (check the records to see whether ships/personnel were eligible for combat “V”s during that time, they were not). So, if we are not in a state of armed conflict, the Yemenis who blew up the COLE did NOT violate the LOW and you can’t have a military commission to try “offenses” that occurred prior to the beginning of hostilities (for the US, I think this is Sept. 18, 2001, the date Congress passed the AUMF). They are simply thug, criminal, murders. You see where this is going…

    Tough questions/tough issues. That is why we are still having this debate 8+ years after 9/11. Hopefully policy answers that satisfy most are forthcoming.

  5. Just another joe says:

    Allred advertises that HAMDAN was the first war crimes trial since Nuremburg? Not too sure what he would classify Eickmann’s trial in Isreal in the 60s, IG Farben, SS cases, etc etc. What about the Australian Roo Skinner that pled before HAMDAN? In his defense, I think he tried to make an easy read for the masses vice a techno article for academic digestion.