Defending Hamdan

[selil]

What about the Indian Tribes of the United States? They are an association of nations within the United States and have limited sovereign powers. I don't believe they've ever been recognized by anybody yet they are given that status.

[jmm99]

Hey Selil,

Actually know a bit about that topic, but it will move us off-topic here. They do have a special status - similar to that of ASSRs in the old Soviet Union.

I'll send you a PM on that.

[jmm99]

Since this Article will enter into the discussion, everybody might as well have access to it without having to search the Red Cross website.

The text of Article 2 is short, but has a much longer legislative history which is reflected in the Commentary.

1949 GC III - Treatment of Prisoners of War - Article 2

Art 2. In addition to the provisions which shall be implemented in peace time, 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, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

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. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

The Commentary is generally held to be pursuasive, but not binding on a court, when considering the text of the Convention

Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
Commentary
Part I : General provisions

[all snips in this and following parts are from pp.19-27 of the Commentary]

[p.19] ARTICLE 2. -- APPLICATION OF THE CONVENTION
GENERAL AND HISTORICAL

[pp.19-20]
...
.... Since 1907 experience has shown that many armed conflicts, displaying all the characteristics of a war, may arise without being preceded by any of the formalities laid down in the Hague Convention.

Furthermore, there have been many cases where Parties to a conflict have contested the legitimacy of the enemy Government and therefore refused to recognize the existence of a state of war. In the same way, the temporary disappearance of sovereign States as a result of annexation or capitulation has been put forward as a pretext for not observing one or other of the [p.20] humanitarian Conventions. It was necessary to find a remedy to this state of affairs and the change which had taken place in the whole conception of such Conventions pointed the same way. The Geneva Conventions are coming to be regarded less and less as contracts concluded on a basis of reciprocity in the national interests of the parties, and more and more as a solemn affirmation of principles respected for their own sake, a series of unconditional engagements on the part of each of the Contracting Parties ' vis-à-vis ' the others. ...
....
[pp.21-22]
...
But the draft text said nothing about the relations between a belligerent, or belligerents, bound by the Conventions on the one hand, and a belligerent, or belligerents, not bound by it on the other hand. The ' clausula si omnes ' (4) which was included in the 1906 Geneva Convention -- but which was never invoked during the First World War, although it might appropriately have been in the case of Montenegro -- was omitted in 1929. But although the Convention was binding upon the Contracting States in their relations as between each other, they were still under no obligation in regard to States which were not parties to that instrument. The ideal solution would obviously have been that all the Parties to a conflict should be obliged to apply the Convention in all circumstances, i.e. even if the adversary was not a party to it, and despite the fact that the Convention would be a ' res inter alios acta ' for the latter.

There could be no question of reverting to the ' clausula si omnes ', which had fortunately been abandoned in recent times, since it no longer corresponded to humanitarian needs. The 1929 Convention had already departed from it by stating in the second paragraph of Article 82 that "in time of war, if one of the belligerents is not a party to the Convention, its provisions shall, nevertheless, remain binding as between the belligerents who are parties thereto". Thus the provisions concerning prisoners of war were given the binding force of which they had been deprived by the solutions adopted at the Peace Conferences. The fact that one of the belligerents was not a party to the Convention could no longer nullify its applicability.
Although from the legal point of view there was no way to extend the scope of the Convention, it was necessary to find one on the humanitarian plane. The Committee accordingly suggested to the Governments represented at the Diplomatic Conference of 1949 that the following two sentences be added to Article 2 :

"In the event of an international conflict between one of the High Contracting Parties and a Power which is not bound by the present Convention, the Contracting Party shall apply the provisions thereof. This obligation shall stand unless, after a reasonable lapse of time, the Power not bound by the present Convention states its refusal to apply it, or in fact fails to apply it." (5)

[p.22] The Diplomatic Conference also considered two other proposals (6) -- one, from the Canadian Delegation, suggesting that the Convention should also be applicable to a Power not party to the Convention so long as that Power complied with its provisions, and another, from the Belgian Delegation, which read as follows: "The Powers which are a party to the Convention shall invite the Power which is not a party to it to accept the terms of the said Convention; as from the latter Power's acceptance of the Convention, all Powers concerned shall be bound by it."

The fact that there was no objection to this principle was a sure sign that the time was ripe for this step forward in international law. The discussion turned solely on the conditions to be fulfilled. The condition underlying both the Canadian proposal and the proposal of the International Committee of the Red Cross was resolutive, while the Belgian proposal was based on a suspensive condition. As agreement could not be reached on any of these proposals, they were discarded in favour of the compromise wording of the present text.

The Rapporteur of the Special Committee gives the following explanation of the motives which guided his Committee: "As a general rule, a Convention could lay obligations only on Contracting States. But, according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized. The text adopted by the Special Committee, therefore, laid upon the Contracting State, in the instance envisaged, the obligation to recognize that the Convention be applied to the non-contracting adverse State, in so far as the latter accepted and applied the provisions thereof" (7).

(4) [(1) p.21] Clause providing that obligations are binding on a belligerent only of ' all ' the belligerents on the opposing side (principal adversary and allies of that adversary) are also bound by the same obligations;

(5) [(2) p.21] See ' Remarks and Proposals submitted by the International Committee of the Red Cross, ' p. 9;

(6) [(1) p.22] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 53-54 and 107-108;

(7) [(2) p.22] Ibid., Vol. II-B, p. 108 (First Report drawn up by the Special Committee of the Joint Committee);

Rather long, but the history of the "accept" and "apply" clause has special relevance here.

[jmm99]

Text

Art 2. In addition to the provisions which shall be implemented in peace time, 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, even if the state of war is not recognized by one of them.

Commentary

PARAGRAPH 1. -- ARMED CONFLICTS INVOLVING
THE APPLICATION OF THE CONVENTION

By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] to the application of the Convention. The occurrence of de facto hostilities is sufficient.

It remains to ascertain what is meant by "armed conflict". The substitution of this much more general expression for the word "war" was deliberate. It is possible to argue almost endlessly about the legal definition of "war". A State which uses arms to commit a hostile act against another State can always maintain that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence.

The expression "armed conflict" makes such arguments less easy. Any difference arising between two States and leading to the intervention of members of the armed forces (8) is an armed conflict within the meaning of Article 2 , even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries falling within the scope of Article 4 . Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.

The Convention provides only for the case of one of the Parties denying the existence of a state of war. What would the position be, it may be wondered, if both the Parties to an armed conflict were to deny the existence of a state of war? Even in that event it would not appear that they could, by tacit agreement, prevent the Conventions from applying. It must not be forgotten that the Conventions have been drawn up first and foremost to protect individuals, and not to serve State interests. Even if the existence of a state of war is disputed, Article 3 can be applied.

(8) [(1) p.33] This was the Special Committee of the Joint Committee. The provision in question was discussed, first as Article 2, paragraph 4 (i.e. with the numbering it had in the Stockholm draft), and later as Article 2A. See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, pp. 40-48, 75-79, 82-84, 90, 93-95, 97-102;

This is self-explanatory - the key is that a "declared war" is not a material factor.

[jmm99]

Text

Art 2. ...
.... The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Commentary

PARAGRAPH 2. -- OCCUPIED TERRITORIES

This new provision is particularly pertinent for the protection of civilian persons under the Fourth Convention, but its inclusion is none the less appropriate in regard to prisoners of war, since, even in the absence of resistance, the Occupying Power might be tempted to intern all or part of the armed forces of the adversary in the interests of its future security. For that reason it was necessary to ensure that such internees would be treated as prisoners of war throughout their detention.

While not expressly mentioned in the Commentary, Art. 2, para 2 has obvious application to a situation where two factions (each claiming to be the legitimate government of a "High Contracting Party", assuming the nation in question previously adopted the Convention) are fighting over that nation's territory. In that case, only one of them can be the legitimate government (and representative of the "High Contracting Party") of the nation. The other faction would be covered as a "Power" to the conflict by Art. 2, para 3.

The situation would be altered factually (and somewhat legally) if one of the factions claimed that it was forming a new nation (state). In that case, the other faction would continue as representative of the "High Contracting Party", and the "new nation" faction would still be covered as a "Power" to the conflict by Art. 2, para 3.

Afghanistan 9-10-2001 involved either situation 1 or 2. Post 9-11-2001, a number of "High Contracting Parties" entered the picture. Which of them, and for what time frame, was an "Occupying Power" is a mixed question of law and fact.

[jmm99]

Text

Art 2. ...
.... 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. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Commentary

[p.24] PARAGRAPH 3. -- CONFLICTS IN WHICH THE BELLIGERENTS
ARE NOT ALL PARTIES TO THE CONVENTION

1. ' Relations between belligerents party to the Convention '

This provision appears to state an elementary truth; but that was not always the case. The Hague Conventions of 1907 and the Geneva Convention of 1906 all contained a ' clausula si omnes ' (9), and that provision was in force when the First World War broke out in 1914. But despite the fact that the application of the Convention might have been suspended on the ground that one of the belligerents -- Montenegro -- was not a party to it, all the Contracting States in general honoured their signature (10).

It was essential, however, to clarify the position and to prevent any future recurrence of a situation similar to that of 1914. It should be noted that this problem of relations between opposing Powers is quite distinct from that of the relations between allied Powers fighting under a unified command. The latter case, which is also very important, is considered later in this volume, in connection with Article 12 .

2. ' Relations between Contracting and non-Contracting Parties '

The second sentence, added by the Diplomatic Conference of 1949, has certainly the characteristics of a compromise, for it does not come to a decision between the suspensive and resolutive conditions. At first sight it appears to incline towards the Belgian amendment. But whereas the latter only made the Convention applicable as from the time of its formal acceptance by the non-Contracting Power, the sentence adopted by the Diplomatic Conference drops all reference to an invitation to be made to the non-Contracting Power, and substitutes for the words "as from the latter Power's acceptance" the words "if the latter accepts and applies the provisions thereof".

What, then, is the position in the interval between the launching of hostilities and the non-contracting belligerent's acceptance?

[p.25] The First Report by the Special Committee of the joint Committee, to which reference has already been made, states: "according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized" (11). This passage shows how this not very clear provision should be interpreted.

The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity to state his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion the only reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character. It is also in accordance with the moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world. It is finally to its advantage from a more practical point of view, because the fact of its beginning itself to apply the Convention will encourage the non-Contracting Party to declare its acceptance, whereas any postponement of the application of the Convention by the Contracting Party would give the non-Contracting Party a pretext for nonacceptance.

There are two conditions to be fulfilled under this part of the paragraph -- (a) acceptance and (b) de facto application of the Convention. What happens if the non-Contracting Party makes no declaration, but in actual fact applies the Convention? Before answering this question, it must be seen what is meant by "accepting" the provisions of the Convention (11).

Is a formal and explicit declaration by a non-Contracting State indispensable? The Rapporteur of the Special Committee seems to say that it is. "A declaration" he wrote "was necessary, contrary to the Canadian amendment, according to which an attitude on the part of the non-Contracting State in conformity with the Convention would have sufficed to make it applicable". He added, it is true, that it was not possible to lay down any uniform procedure in the matter, and that "the Convention would be applicable as soon as the declaration was made. It would cease to be applicable as soon as the declaration was clearly disavowed by the attitude of the non-contracting belligerent" (12).

[p.26] Does it follow from this that, if the second condition -- namely the application of the Convention de facto -- is alone fulfilled, the Contracting Party is released from its obligations?

Closely as that may seem to follow from the letter of the text, it does not appear possible to maintain such an interpretation. It would make the application of the Convention dependent on a suspensive condition even more rigid than that of the Belgian proposal, which was itself regarded as being too strict. It would bring about a paradoxical -- not to say, a monstrous -- situation. It would entitle a Power to disregard rules solemnly proclaimed by itself, while its adversary, though not legally bound to those rules, was scrupulously applying them; and all this only because of the omission of the latter to make a declaration, or because of delay in the transmission of such a declaration.

' Summum jus summa injuria. ' The saying may often be true; but it should never be cited in reference to a humanitarian Convention. The Third Convention, like its three sister Conventions, rightly condemns reprisals against persons in the most categorical terms. But would it not be worse than any reprisals to ill-treat prisoners even before one's adversary had done so, merely because it was inferred from his silence that he was intending to do so?

The two conditions laid down for the non-Contracting Power are that it should ' accept ' and ' apply ' the provisions of the Convention. In the absence of any further indication, there is no reason to assume that "acceptance" necessarily implies an explicit declaration. It can equally well be tacit. It may be implicit in de facto application. These considerations do not in any way minimize the importance of an explicit declaration by the non-Contracting Power. It is, on the contrary, most desirable that the latter should make such a declaration, and with the least possible delay. The International Committee of the Red Cross for its part, when offering its services at the beginning of a conflict, never fails to ask Parties to the conflict which are not legally bound by the Convention to declare their intention of applying it or of observing at least its principles, as the case may be.

In practice, any Contracting Power in conflict with a non-Contracting Power will begin by complying with the provisions of the Convention pending the adverse Party's declaration. It will take into account facts above all.

Furthermore, although the Convention, as a concession to legal form, provides that in certain circumstances a Contracting Power may legally be released from its obligations, its spirit encourages the Power [p.27] in question to persevere in applying humanitarian principles, whatever the attitude of the adverse Party may be. (13)

(9) [(1) p.24] See above, p. 21;

(10) [(2) p.24] As stated in the Commentary on the 1929 Geneva Convention, "the facts backed by the signatures of the signatories and by the humanitarian interests of all, outweighed the law." Paul DES GOUTTES, ' Commentaire de la Convention de Genève du 17 juillet 1929, ' Geneva, 1930, ad Article 25, p. 188;

(11) [(1) p.25] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-B, p. 108;

(12) [(2) p.25] Ibid., p. 109;

(13) [(1) p.27] This paragraph of Article 2 was applied during the Suez conflict in the autumn of 1956, when the opposing Parties were Egypt, on the one hand, and France, Israel and the United Kingdom, on the other. Of these, only the United Kingdom was not bound by the Conventions, which it had not yet ratified. Nevertheless, in reply to a telegram from the International Committee of the Red Cross the
British Prime Minister stated that, pending their formal ratification, the United Kingdom Government accepted the Conventions and fully intended to apply their provisions, should the occasion arise. The ICRC informed the other States Party to the conflict of this statement, and none of the belligerents contested the applicability of the Conventions.

The provisions of GC III, Art. 3 are roughly twice as long as the above parts. Those of GC III, Art. 4 are roughly twice as long as those of GC III, Art. 3. I suggest resolving issues under GC III, Art. 2 before attacking the other parts.

[jmm99]

This is a boring slog, since all of these documents are much the same. However, they prove how Afghanistan looked at itself as a nation (state).

They also prove that Afghanistan was a state from 1923 to the present - the relevant period in Afghan constitutional history which encompasses the 1949 GCs, to which Afghanistan was and is a "High Contracting Party".

Geneva Conventions of 12 August 1949.
State Parties Afghanistan
Signature 08.12.1949
Ratification / Accession 26.09.1956
Reservation / Declaration - None

http://www.cicr.org/ihl.nsf/WebSign?...rm&id=375&ps=P

Constitution of Afghanistan (1923)

The Constitution of Afghanistan April 9, 1923
....
Article 1
Afghanistan Is Completely Free and Independent in the Administration of its Domestic and Foreign Affairs. All Parts and Areas of the Country Are under the Authority of His Majesty the King and Are to Be Treated as a Single Unit Without Discrimination Between Different Parts of the Country.

http://www.afghan-web.com/history/const/const1923.html

Constitution of Afghanistan (1964)

The Constitution of Afghanistan 1964
.....
Title One
The State
Article 1
Afghanistan Is a Constitutional Monarchy; an Independent, Unitary and Indivisible State. Sovereignty in Afghanistan Belongs to the Nation. The Afghan Nation Is Composed of All Those Individuals Who Possess the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each Such Individual.

http://www.afghan-web.com/history/const/const1964.html

Constitution of Afghanistan (1976)

The Constitution of Afghanistan 1976
....
Chapter Three
The State
Article Twenty: Afghanistan Is a Republican, Democratic, Independent, Unitary and Indivisible State.
Article Twenty One: National Sovereignty in Afghanistan Belongs to the People. The Nation of Afghanistan Consists of All Those Individuals Who Hold the Citizenship of the State of Afghanistan in Accordance with the Provisions of the Law. The Word Afghan Shall Apply to Each and Every Individual of the Nation of Afghanistan.

http://www.afghan-web.com/history/const/const1976.html

Constitution of Afghanistan (1987)

The Constitution of Afghanistan 1987
....
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent Unitary and Indivisible State Having Sovereignty over the Whole of its Territory. The National Sovereignty in the Republic of Afghanistan Rests with the People. The People Exercise National Sovereignty Through Loya Jirga, National Assembly and Local Councils.

http://www.afghan-web.com/history/const/const1987.html

Constitution of Afghanistan (1990)

The Constitution of Afghanistan 1990
.....
Chapter One
Foundations of the Political System
Article One:
The Republic of Afghanistan Is an Independent, Unitary and Indivisible and Islamic State, Having Sovereignty over the Whole of its Territory. National Sovereignty in the Republic of Afghanistan Belongs to the People. The People Exercise National Sovereignty Through Loya Jirga and National Assembly.

http://www.afghan-web.com/history/const/const1990.html

Constitution of Afghanistan (2004)

The Constitution of the Islamic Republic of Afghanistan
(Ratified) January 26, 2004
....
Chapter One: State
Article One
Afghanistan shall be an Islamic Republic, independent, unitary and indivisible state.
Article Two
The sacred religion of Islam is the religion of the Islamic Republic of Afghanistan. Followers of other faiths shall be free within the bounds of law in the exercise and performance of their religious rituals.
Article Three
No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan.
Article Four
National sovereignty in Afghanistan shall belong to the nation, manifested directly and through its elected representatives. The nation of Afghanistan is composed of all individuals who possess the citizenship of Afghanistan. The nation of Afghanistan shall be comprised of Pashtun, Tajik, Hazara, Uzbek, Turkman, Baluch, Pachaie, Nuristani, Aymaq, Arab, Qirghiz, Qizilbash, Gujur, Brahwui and other tribes. The word Afghan shall apply to every citizen of Afghanistan. No individual of the nation of Afghanistan shall be deprived of citizenship. The citizenship and asylum related matters shall be regulated by law.

OK, all of that proves that Afghanistan has been a nation (state) at all times relevant to this discussion. The next issue is the successive governments of Afghanistan - in short, who had authority to speak for the "High Contracting Party" under the 1949 GCs.