JURIST Guest Columnist Jordan Paust of the University of Houston Law Center says that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate forms of procedure for new US military commissions…

When considering legislation for military commissions, members of Congress should be careful not to open themselves to personal war crimes liability by denying the due process requirements incorporated in common Article 3 of the Geneva Conventions.

Justice Stevens, writing the opinion of the Supreme Court in Hamdan v. Rumsfeld (2006), warned that the military commission created by President Bush “lacks power to proceed because its structure and procedures violate the UCMJ and the Geneva Conventions,” adding: “at least one provision of the Geneva Conventions … applies,” common Article 3. Common Article 3, Justice Stevens emphasized, “prohibits ‘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.'” He added: “[i]nextricably intertwined with the question of regular constitution is the evaluation of the procedures governing the tribunal … the phrase ‘regularly constituted court’ … must be understood to incorporate at least the barest of those trial procedures that have been recognized by customary international law.” Moreover, the phrase “all the judicial guarantees which are recognized as indispensable” necessarily incorporates by reference customary rights to due process that constitute a minimum set of due process guarantees under customary international law. See, e.g., 23 Mich. J. Int’l L. 677, 678 n.9 (2002), cited elsewise in Hamdan; 23 Mich. J. Int’l L. 1, 7 n.15, 12 n.26 (2001).

Justice Stevens rightly recognized that “[m]any of these are described in Article 75 of Protocol I to the Geneva Conventions,” citing also Article 14 of the International Covenant on Civil and Political Rights (a treaty of the United States that happens to reflect what the international community now recognizes as a set of minimum due process guarantees under customary human rights law that must be complied with and that is necessarily incorporated by reference in common Article 3). The minimum guarantees include the right to be tried before a regularly constituted, competent, independent, and impartial court; to be presumed innocent; to counsel of one’s choice and to effective representation; to regular and fair procedure, including regular and fair rules of evidence, the right to examine or have examined witnesses against the accused, to be tried without undue delay, and to not be compelled to testify against oneself or to confess guilt; and to review by a competent, independent, and impartial court of law.

In his concurring opinion in Hamdan, Justice Kennedy emphasized that “[t]he Court is correct to concentrate on one provision of the law of war that is applicable … Common Article 3.” He then noted that common Article 3 “is part of a treaty the United States has ratified and thus accepted as binding law.” He added: “[b]y Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses.” Indeed, every violation of the law of war is a war crime, punishable here or abroad in any country under the principle of universal jurisdiction. War crimes are also prosecutable in international criminal tribunals that have jurisdiction over particular perpetrators. A denial of the rights and protections under the Geneva Conventions (such as those expressly set forth or incorporated by reference in common Article 3) is a violation of the Conventions and a violation of the Conventions is a war crime.

Another provision of treaty-based laws of war that also reflects customary international law is quite relevant in this regard. It is set forth in Article 23(h) of the Annex to the 1907 Hague Convention No. IV Respecting the Laws and Customs of War on Land, which reads: “it is especially forbidden … [t]o declare abolished, suspended, or inadmissible in a court of law the rights … of the nationals of the hostile party.” Similarly, as part of the law of war, a violation of the Hague Convention is a war crime.

Members of Congress are thus on notice that minimum due process guarantees under customary international law must not be denied when Congress attempts to articulate what forms of procedure a military commission should adopt. If members participate in a plan to do so or are complicit in the deprivation of minimum due process guarantees under customary international law incorporated by reference in common Article 3 of the Geneva Conventions or any other rights or protections under common Article 3 (e.g., concerning the right to humane treatment even at the hands of CIA interrogators), they would be participating in the denial of rights, protections, and duties under Geneva law. Such denials are war crimes.

Moreover, “wilfully depriving a protected person of the rights of fair and regular trial prescribed in the … Convention” constitutes a more egregious “grave breach” of Geneva law. Denial of what the world knows are minimum due process requirements would also resonate against us like the crimes at Abu Ghraib and the Administration’s criminal torture memos and authorizations.

War crimes policies and authorizations are not merely a threat to constitutional government and our democracy. They threaten law and order more generally, violate our common dignity, degrade our military, place our soldiers and CIA personnel in harms way, thwart our mission, and deflate our authority and influence abroad. They can embolden an enemy, serve as a terrorist recruitment tool, lengthen social violence, and fulfill other terrorist ambitions.

Additionally, Congress should not attempt to provide domestic immunity for criminal violations of rights and protections contained in the Geneva Conventions. Tin-horn dictatorships attempt such forms of impunity, but the attempt would itself violate several treaties of the United States and (as Marcos, Milosevic, Noriega, Pinochet, various Argentinian generals, and others learned) have no legal effect abroad in foreign or international fora. Instead, Congress should protect the honor of the United States and maintain the rule of law.

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