Victor Hansen

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« The (ir)relevance of GPW article 129 in a CA3 conflict | Main | Issues coming to a head in Congress »

September 24, 2006


Charles Gittings


The government claims that "whether to treat the ongoing fight against al Qaeda and the military conflict against the Taliban regime as aone or two conflicts is a political and military matter 'constitutionally committed to the halls of Congress or the executive branch.'" GOVERNMENT REPLY BRIEF, Hamdan v. Rumsfeld (D.C. Cir. 2005.01.10), at 17, available at

See also the GOVERNMENT APPEAL, Hamdan v. Rumsfeld (D.C. Cir. 2004.12.08), starting at 46, available at

It's just another one of David Addington's legal frauds: they want to disassociate al Qaeda from the Taliban in order to argue that CA2 (which covers international armed conflicts) is inapplicable, then they turn around and argue that CA3 is inapplicable because the war with al Qaeda is an international armed conflict outsdide the scope of CA3.

The Supreme Court did NOT resolve whether or not the conflicts are actually separate or properly covered by CA2 or CA3. The ruling was simply that assuming arguendo the government's claims about the separation are correct, the military commissions would still be unlawful becasue CA3 applies to conflicts between a state and a non-state actor.

Hence, it was not necessary for the Court to resolve the larger issues of Geneva: the question presented in Hamdan was the lawfulness of the military commissions. The bigger issues should come to a full boil in the next set of cases -- Al Odah (In re Guantanamo Detainee Cases) and Boumedienne (Khalid), both of which are pending a decision by the D.C. Circuit right now.


Charles Gittings

As for the question of reality:

Both Iraq and Afghanistan were international armed conflicts, and both remain under international occupation, the lies of the Bush administration notwithstanding.

Indeed, the reality is that anywhere US forces act is under de facto US military occupation. As the Lieber Code stated:

"A place, district, or country occupied by an enemy stands, in consequence of the occupation, under the martial law of the invading or occupying army, whether any proclamation declaring martial law, or any public warning to the inhabitants, has been issued or not. Martial law is the immediate and direct effect and consequence of occupation or conquest.

"The presence of a hostile army proclaims its martial law."

General Orders No. 100, U.S. War Dep't (Washington, 1863).

And if anyone disagrees with that, it's easy enough to disprove... just show the existence of arrest warrants, due process, extradition treaties, functioning police forces and courts, etc.

The reality is that you can't even show that inside the United States any more.


Geoff Corn

I think the "anywhere US forces act" is overbroad. Occupation requires the territory be placed under effective control of the invading force, although not absolute control. Certainly US forces were "acting" in Somalia, periodically conducting raids into Mogadishu, but I don't believe the entire city was under US occupation. I think effective control requires the capability to take measures for the purpose of enforcing military authority.

Nor do I believe it is inconceivable to have two simultaneous armed conflicts occurring in the same territory at the same time. Let’s assume the Afghan government decided tomorrow to demand that the US remove all forces from the country. Let’s also assume that the US refused to do so, under the auspices of exercising the inherent right of self defense against Al Qaeda forces operating out of safe havens inside Afghanistan. It is unlikely Afghanistan would conduct military operations to eject US forces. Certainly, it would be reasonable to conclude that the continuing presence of US forces in parts of the country created a partial occupation (because an occupation does not require resistance to an invasion), and therefore an international armed conflict between the US and Afghanistan. But I doubt the US would consider the continuing fight against Al Qaeda part of that conflict, and in my opinion distinguishing the two is not totally invalid.

Charles Gittings

Well Geoff, I'm certain you know more about this particular topic than I do, but...

Marines gaurding an Embassy would clearly not constitute an occupation.

US forces based overseas by agreement with a host country wouldn't be an occupation either, but would such forces be at liberty to conduct combat operations in that country?

I assume they could defend themselves from a sneak attack, but we couldn't just decide on our own to launch an airstrike on a suspected safe house in London or Berlin could we? That would be under status of forces agreements or something, no?

Yet we do that sort of thing in Iraq and Afghanistan all the time, and frankly, I just don't buy that either country has any genuine independence from the US. Did the cooperation of Vichy mean that occupied France was not really under occupation by the Nazis?

It seems to me that the only real terminiation of hostilities must be actual PEACE.

Conceptually, it seems to me that if one or more US service members are conducting combat operations on foreign soil, that constitutes a de facto occupation on that spot of ground. If that's wrong, I'd be interested to hear why. The conventions only say "total or partial", and as long as we are there as combatants it seems like it must be a partial occupation.

And I especially think that it must presumptively be a hostile occupation
indeed if someone can be captured and "disappeared" to Guantanmo Bay or some other illegal prison without the benefit of due process.

Deportations are supposed to be forbidden, no?

Geoff Corn


I am not disputing the jus ad bellum problem with any operation like the one I suggested above. But application of humanitarian law is distinct question from the legal basis for such operations. I simply do not agree that the conduct of combat operations on foreign soil qualifies as an automatic belligerent occupation. For example, by definition a "raid" is a operational concept that expressly excludes any meaningful control of enemy territory (DOD and NATO definition: "An operation, usually small scale, involving a swift penetration of hostile territory to secure information, confuse the enemy, or to destroy installations. It ends with a planned withdrawal upon completion of the assigned mission.").

I believe the principle of humane treatment applies to all armed conflicts, and I also believe that one of the most critical components of humane treatment of any detainee is notice to the ICRC or some other impartial entity of the location and status of the detainee (I doubt the US would ever consider it "humane" to "hide" a US detainee form the rest of the world). But I don't believe this notice obligation is always derived from a state of belligerent occupation.

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