Back to basics with Common Article 3

Geoffrey Corn [South Texas College of Law]: "Today it was reported that the Department of Defense has officially acknowledged that Common Article 3 of the four Geneva Conventions applies to the conflict with Al Qaeda. In fact, the Memorandum issued by Gordon England specifically directs the military departments to ensure that all Department of Defense (DOD) personnel adhere to the humanitarian mandate of Common Article 3 when dealing with any detainee under DOD control.

Secretary England's Memorandum begins by citing the decision in Hamdan v. Rumsfeld for the proposition that the Supreme Court has determined that Common Article 3 applies as a matter of law to the conflict with Al Qaeda. This policy is a clear retraction of the flawed "inapplicability" interpretation that senior Bush administration officials had imposed on DOD and refused to abandon. While the Hamdan decision was undoubtedly the final nail in the proverbial coffin of this widely condemned interpretation of the law of war, it was not the only factor. In fact, this policy reversal is also a testament to the tenacity of numerous legal advisers within DOD who have been unrelenting in their efforts to restore the humane treatment mandate to its proper status vis a vis U.S. military operations, including detention operations.

This is a major step forward in preserving the moral and legal integrity of these military operations. More importantly, this policy reversal provides a clear and unambiguous mandate to U.S. forces — when you conduct combat operations, you are bound by the law of war, even if your enemy is a transnational non-state terrorist entity. Such clarity is essential to enable military legal advisers and the commanders they support to identify and enforce appropriate limits on the measures taken in the name of military necessity. Balancing the principle of necessity with basic principle of humane treatment is a bedrock concept of the contemporary law of war and integrally related to the preservation of a disciplined and professional force.

It is therefore unsurprising that the acknowledgement of Common Article 3 applicability to the conflict with Al Qaeda was not only a key aspect of the Hamdan decision, but also the objective of virtually every senior uniformed and civilian legal adviser within DOD. It is equally unsurprising that the atmosphere of extremis that characterized the post 9/11 attacks bred novel and what we now know to be overreaching legal interpretations. It is a credit to the professionalism and tenacity of the uniformed and career civil service lawyers who serve our nation that benefit of time and reflection were ultimately able to move these interpretations back towards the realm of credibility. These lawyers are no doubt grateful that the Supreme Court pushed this issue over the finish line, but there should be no doubt that the finish line was close at hand when the push finally came, thanks to their efforts."

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