OLC Memo: Treaties and Laws Applicable to the Conflict in Afghanistan And to the Treatment of Persons Captured by U.S. Armed Forces In that Conflict

November 2001 memo from Yoo and Delahunty to Gonzales summarizing treaties and laws applicable to the conflict in Afghanistan and to the treatment of persons captured by U.S. Armed Forces.

Legal Memo
Friday, November 30, 2001
Monday, December 14, 2009

Office of the Deputy Assistant Attorney General
j.k" rI
U.S. Department of Justr. .
Office ofLegal Counsel
Washington. D.C 10530
November 30,2001
JohnC.yoo ~~
Deputy ASSirj- Ait~ General
RobertJ.Delahunty tt~rJ. /),dt:./w:'y'
Special Counsel
RE: Treaties and Laws Applicable to the Conflict in Afghanistan
And to the Treatment ofPersons Captured by U.s. Armed Forces
In that Conflict
In the course of the current military effort to combat international terrorism, including the
present campaign in Afghanistan against the al Qaeda terrorist organization and the Taliban
militia, it is foreseeable that U.S. military forces will need to detain foreign nationals in the
course of conducting military operations. You have asked for our Office's views on several
questions concerning the application of certain treaties, domestic federal law, and customary
international law to the armed conflict in Afghanistan. J In particular, you have asked about the
applicability of the laws of armed conflict to the conduct of the U.S. Armed' Forces towards
.captured members of the al Qaeda terrorist group and of the Taliban militia, which provides the
former with sanctuary in Afghanistan. We conclude that these treaties do not protect the al
Qaeda organization, which as a non-State actor cannot be a party to the international agreements
governing war. We further conclude that the President has reasonable grounds to find that these
treaties do not apply to the Taliban militia. This memorandum expresses no view as to whether
the President should decide, as a matter of policy, that the U.S. Armed Forces should adhere to
the standards of conduct in those treaties in the Afghanistan conflict, particularly with respect to
the treatment ofprisoners.
We believe it most useful to examine this question by focusing on the War Crimes Act,
18 U.S.C. § 2441 (Supp. III 1997) ("WCA n
) , which directly incorporates several provisions of
I On October 7, 2001, the United States Permanent Representative to the United Nations informed the
Security Council that the United States, together with' other States, had initiated actions in the exercise of their
inherent right of individual and collective self-defense under Article 51 of the United Nations Charter in response to
the attacks on the United States of September 11,2001. See Letter dated 7 October 2001 from the Permanent
Representative of the United States ofAmerica to the United Nations addressed fa the President cf the Security
Council, V.N. Doc. S/2oo11946 (2001).
,.- international treaties governing the Jaws of war into the federal criminal code. Part I of this
memorandum describes the WCA and the two most relevant treaties that it incorporates. The
first is the Hague Convention IV, Respecting the Laws and Customs of War on Land, Oct. 18,
1907, 36 Stat. 2277 f'Hague Convention IV"), which generally regulates operations during
combat, such as the use ofweapons, legitimate and illegitimate targets, and tactics.i The second
are the four 1949 Geneva Conventions, which generally regulate the treatment of noncombatants,
such as prisoners ofwar ("POWs"), the injured and sick, and civilians.'
Part II examines whether al Qaeda detainees can claim the protections of these
agreements. Because al -Qaeda is merely a violent political movement or organization, it is not a
Nation State, and hence is ineligible to be a-signatory to any treaty. Because of the novel nature
of this conflict, moreover, we do not believe that al Qaeda would be included in noninternational
forms of armed conflict to which some provisions of the Geneva Conventions
might apply. Therefore, the Hague Convention IV, the Geneva Conventions, and the WCA do
not apply to the conflict with al Qaeda.
Part III discusses whether the same treaty provisions, as incorporated through the WCA,
apply to the treatment of captured members of the Taliban. Afghanistan is not a party to the
Hague Convention lV, and. so cannot receive its protections. In regard to the treatment of
Taliban prisoners, we believe that the Geneva Conventions do not apply here because the
Taliban is and was not a government and Afghanistan is not -- and even prior to the beginning of
the present conflict was not -- a functioning State. Even if this were not the case, however, it is
clear that the President has the constitutional authority to declare treaties with Afghanistan
suspended pending the restoration of a legitimate government to that country. We emphasize
that, in saying that the President may find that the Geneva Conventions are inoperative as to
Afghanistan, and that he may suspend the Conventions as to Afghanistan, we are reaching only a
conclusion oflaw, not an ultimate policy determination based on the facts of the situation.
In Part IV, we address the question whether the customary international law of armed
conflict might apply to the Afghanistan conflict even if the treaties referenced in the WCA do
not. We conclude that customary international Iaw, whatever its source and content, does not
2 In general, these provisions, all of which are placed in Sectio~ II ("Hostilities"), Chapter I ("Means of
Injuring the Enemy, Sieges, and Bombardments") of the Annex to the Hague Convention IV, prohibit means of
injuring an enemy such as killing or wounding treacherously enemy nationals or combatants, enemies who are
defenseless or who have surrendered, or employing arms, projectiles, or materials calculated to cause unnecessary
suffering (art. 23); attacking or bombarding undefended towns, villages, dwellings, or buildings (art. 25); the failure
to take necessary steps to spare religious, artistic, scientific or charitable sites, historic monuments, hospitals, or
places where the sick and wounded are gathered, provided that these sites are not being used for military purposes
and have been distinctively and visibly marked (art. 27); and pillaging (art. 28).
3 Four Geneva Conventions for the Protection of Victims of War, dated August ]2, J949, were ratified by
the United States on July J4, 1955. These are the Convention for the Amelioration ofthe Condition ofthe Wounded
and Sick in Armed Forces in the Field, 6 U.S.T. 3115 ("Geneva Convention I"); the Convention for the Amelioration
of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T. 3219 ("Geneya
Convention U"); the Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3517 ("Geneva Convention
III"); and the Convention Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T.33l? ("Geneva
Convention IV"). .
bind the President, or restrict the actions of the United States military, because it does not
constitute federal law recognized under the Supremacy Clause of the Constitution, U.S. Const.,
art. Vl, cl. 2. However, we also conclude that the President has the constitutional authority as
Commander in Chief to interpret and apply the customary or common laws of war in such a way
that they would extend to the conduct of members of both al Qaeda and the Taliban, and also to
the conduct of the U.S. Armed Forces towards members of those groups· taken as prisoners in
1. Overview ofthe War Crimes Act and the Laws o(War
Section 2441 of title 18 renders certain acts punishable as "war crimes." The statute's
definition of that tenn incorporates, by reference, certain treaties or treaty provisions relating to
the laws-of war, including the Hague Convention IV and the Geneva Conventions. We believe
that the WCA provides a useful starting point for our analysis of the application of the Hague
Convention N and the Geneva Conventions to the current military operations, and the treatment
of detainees, in the Afghanistan theater of operations."
A. Section 2441: An Overview
Section 2441 reads in full as follows:
War crimes
(a) Offense.-Whoever, whether inside or outside the United States, commits a
war crime, in any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of years, or both, and if
death results to the victim,' shall also be subject to the penalty ofdeath.
(b) Circumstances.-The circumstances referred to in subsection (a) are that the
person committing such war crime or the victim of such war crime is a
member of the Armed Forces of the United States or a national of the United
States (as defined in section 101 ofthe Immigration and Nationality Act).
() Definition.-As used in this section the term "war crime" means any conduct-
(1) defined as a grave breach in any of the international conventions signed at
Geneva 12 August 1949, or any protocol to such convention to which the United
States is a party;
(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague
Convention IV, Respecting the Laws and Customs of War on Land, signed 18
October 1907;
4 The rule of lenity requires that the WCA be read so as to ensure that prospective defendants have
adequate notice of the nature of the acts that ,the statute condemns. See, e.g., Castillo v. United States, 530 U.S. 120,
131 (2000). In those cases in which the application of a treaty incorporated by the WCA is unclear, therefore, tbe
rule oflenityrequires that the interpretative issue be resolved in the defendant's favor.
(3) which constitutes a violation of common Article 3 of the international
conventions signed at Geneva, 12 August ]949, or any protocol to such
convention to which the United States is a party and which deals with noninternational
armed conflict; or
(4) of a person who, in relation to an armed conflict and contrary to the
provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol
II as amended on 3 May ] 996)~ when the United States is a party to such Protocol,
willfully kills or causes serious injury to civilians.
]8 U.S.C. § 244].
Section 2441 lists four categories of war crimes. First, it criminalizes "grave breaches" of
the Geneva Conventions, which are defined by treaty and will be discussed below. Second, it
makes illegal conduct prohibited by articles 23, 25, 27 and 28 of the Annex to the Hague
Convention IV. Third, it criminalizes violations ofwhat is known as "common" Article 3, which
is an identical provision common to all four of the Geneva Conventions. Fourth, it criminalizes
conduct prohibited by certain other laws ofwar treaties, once the United States joins them.
The House Report on the original legislation states that it "carries out the international
obligations of the United States under the Geneva Conventions of ] 949 to provide criminal
penalties for certain war crimes." H.R. Rep. No. ]04-698 at 1 (1996), reprinted in 1996
U.S.C.C:A.N. 2166, 2166. Each of those four conventions includes a clause relating to
legislative implementation and to criminal punishment.i
In enacting section 244 I, Congress also sought to fill certain perceived gaps in the
coverage of federal criminal law . The main gaps were thought to be of two kinds: subject matter
jurisdiction and persona) jurisdiction. First, Congress found that "[tjhere are major gaps in the
prosecutabiJity of individuals under federal criminal law for war crimes committed against
Americans." H.R. Rep. No. 104-698 at 6, reprinted in 1996 U.S.C.C.A.N. at 2171. For example,
lithe simple killing of a[n American] prisoner of warn was not covered by any existing Federal
'S That conunon clause reads as follows:
The [signatory Nations] undertake to enact any legislation necessary to provide effective penal
sanctions for persons committing, or ordering to be committed, any of the grave breaches of the
present Convention. . .. Each [signatory nation] shall be under the obligation to search for
persons aJJeged to have committed, or to have 'ordered to be committed, such grave breaches, and
shall bring such persons, regardless oftheir nationality, before its own courts.... It may also, ifit
prefers, ... hand such persons over for trial to another [signatory nation], provided such [nation]
has made out a prima facie case.
Geneva Convention I~ art. 49; Geneva. Convention II, art. 50; Geneva Convention III, art. 129; Geneva Convention
IV, art. 146. .
statute. Id. at 51 reprinted in 1996 U.S.C.C.A.N. at 2170. 6 Second, Congress found that "[tjhe
ability to court martial members of our armed services who commit war crimes ends when they
leave military service. [Section 2441] would allow for prosecution even after discharge." Id. at
71 reprinted in 1996 U.S.C.C.A.N. at 2172.1 Congress considered it important to fill this gap, not
only in the interest of the victims of war crimes, but also of the accused. "The Americans
prosecuted would have available all the procedural protections of the American justice system.
These might be lacking if the United States extradited the individuals to their victims' home
countries for prosecution." Jd. 8 Accordingly, section 2441 criminalizes forms of conduct in
which a U.S. national or a member of the Armed Forces may be either a victim or a perpetrator.
B. The Hague Convention IV
The 1907 Hague Convention IV remains the most comprehensive international effort to
establish rules governing the conduct of combat in land war. It incorporates much of the 1899
Hague Convention II Respecting the Laws and Customs of War on Land, which was the first
successful effort to codify an international set of rules to regulate land warfare. It applies only to
the High Contracting Parties that have ratified the Convention. Article 2 of the Convention
declares that "[tjhe provisions contained in the Regulations referred to in Article I, as well as in
the present Convention, do 110t apply except between Contracting Powers, and then only if all the
belligerents are parties to the Convention." 36 Stat. at 2290 (emphasis added). Article I states
that lilt}he Contracting Powers shall issue instructions to their armed land forces which shall be
in conformity with the Regulations Respecting the Laws and Customs of War on Land, annexed
to the present Convention." Id. (emphasis added). Most of the specific prohibitions and rules are
contained in an Annex to the basic agreement.
The WCA specifically incorporates Annex provisions that regulate the "Means of
Injuring the Enemy, Sieges, and Bombardments" during hostilities between high Contracting
Powers. Id. at 2301. Article 23 prohibits use of poison, killing or wounding the enemy
"treacherously," killing or wounding an enemy soldier who has surrendered, declaring that no
quarter will be given, and using arms designed to "cause unnecessary suffering," abusing flags of
truce of military insignia and uniforms, destroying or seizing enemy property when not
6 In projecting our criminal law extraterritorially in order to protect victims who are United States nationals,
Congress was apparently relying on the international law principle of passive personality. The passive personality
principle Nlasserts that a state may apply law - particularly criminal law - to an act conunitted outside its territory by
a person not its national where the victim of the act was its national." United States v. Rezaq, 134 F.3d 1121. 1133
(D.C. Cir.), cert: denied, 525 U.S. 834 (l998). The principle marks recognition of the fact that "each nation has a
legitimate interest that its nationals and permanent inhabitants not be maimed or disabled from self-support," or
-otherwise injured. Lauritzen v. Larsen, 345 U.S. 571, 586 (1953); see also Hellenic lines Ltd. v. Rhoditis,398 U.S.
3061 309 (1970).
7 In United States ex rei. Toth v. Quarles, 350 U.S. 11 (1955), the Supreme Court had held that a former
serviceman could not constitutionally be tried before a court martial under the Uniform Code for Military Justice
(the NUCMJ") for crimes he was alleged to have committed while in the armed services.
8 The principle of nationality in international law recognizes that (as Congress did here) a State may
criminalize acts performed extratenitorially by its own nationals. See. e.g., 'Skiriotes v. Florida. 313 U.S. 69, 73
(1941); Steele v. Bulova Watch Co.~ 344 U.S. 280, 282 (1952).
demanded by military necessity, or abolishing or suspending the rights of enemy nationals. ld. at
2301-02. Article 25 prohibits attack on undefended buildings or towns. Id. at 2302. Article 27
requires that steps be taken to spare certain buildings, such as hospitals, and religious, charitable,
and art centers, "provided they are not being used at the time for military purposes." Id. at 2303.
Article 28 prohibits pillage. Jd.
Other parts of the Hague Convention IV, which are not incorporated via the WCA,
provide definitions as to belligerents, spies, and flags of truce, treatment of POWs and the sick
and wounded, and rules for occupations and armistices. Perhaps the most relevant provision in
this regard is the definition of a beIJigerent who is eligible to receive the protections of the laws
of war. Article I of the Annex states that the laws,rights, and duties of war apply to those: a)
who are commanded by a person responsible for their subordinates; b) who have a fixed,
distinctive emblem recognizable at a distance; c) who carry arms openly; d) who conduct
themselves according to the laws of war. These rules govern both regular armies and "militia
and volunteer corps."
c. Grave Breaches ofthe Geneva Conventions
The Geneva Conventions were approved by a diplomatic conference on August 12, 1949,
and remain the agreements to which more States have become parties than any other concerning
the laws of war. Convention I deals with the treatment of wounded and sick in armed forces in
the field; Convention Il addresses treatment of the wounded, sick, and shipwrecked in armed
forces at sea; Convention III regulates treatment of POWs; Convention IV addresses the
treatment of citizens. While the Hague Convention IV establishes the rules of conduct against
the enemy, the Geneva Conventions set the rules for the treatment of the victims ofwar.
The Geneva Conventions, like treaties generally, structure legal relationships between
Nation States, not between Nation States and private, subnational groups or organizations." An
four Conventions share the same Article 2, known as "common Article 2. n It states:
In addition to the provisions which shall be implemented in peacetime, the
present Convention shan apply to all cases ofdeclared war or of any other armed
conflict which may arise between two or more ofthe High Contracting Parties,
even ifthe state ofwar 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.
9 See Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 253 (1984) ("A treaty is in the
nature ofa contract between nations."); The Head Money Cases, 112 U.S. 580,598 (1884) ("A treaty is primarily a
compact between independent nations. It); United States ex rei. Saroop v. Garcia, 109 F.3d 165, J67 (3d Cit. J997)
("[T]reaties are agreements between nations."); Vienna Convention on the Law a/Treaties, May 23, 1969, art. 2, §
](a), 1155 D.N.T.S. 33J, 333 (P'[TJreaty' means an international agreement concluded between States in written
form and governed by international law ....It) (the "Vienna Convention"); see generally Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398, 422 (1964) ("The traditional view of internaticnallaw is that it establishes substantive
principles for determining whether one country has wronged another.").
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.
(Emphasis added).
"Grave breaches" of the Geneva Conventions, as incorporated by § 2441 (c)( 1), are
defined similarly by the four agreements. In Geneva Convention III on POWs, for example, a
gra~e breach is defined as: .
wilful killing, torture or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health, compelling a
prisoner of war. to serve in the forces of the hostile Power, or wilfully depriving a
prisoner of war of the rights affair and regular trial prescribed in this Convention.
Geneva Convention Ill, art. 130. Geneva Convention IV on the treatment of civilians is broader;
italics below identify differences with Geneva Convention HI:
wilful killing, torture or inhuman treatment, including biological experiments,
wilfully causing great suffering or serious injury to body or health, unlawful
deportation or transfer or unlawful confinement of a protected person,
compelling a protected person to serve in the forces of a hostile Power, or
wilfully depriving a protected person of the rights of fair and regular trial
prescribed in the present Convention, taking ofhostages and extensive destruction
and appropriation ofproperty, not justified by military necessity and carried out
unlawfully and wantonly.
Geneva Convention IV, art. 147 (emphasis added). Geneva Conventions I and II contain parallel
provisions that contain some of this more expansive language. See Geneva Convention I, art. 49;
Geneva Convention II, art. 51. As mentioned before, the Geneva Conventions require the High
Contracting Parties to enact penal legislation to punish anyone who commits or orders a grave
breach. See, e.g., Geneva Convention Ill, art. 129; Geneva Convention IV, art. 146. Further,
each State party has the obligation to search for and bring to justice (either before its courts or by
delivering a suspect to another State party) anyone who commits a grave breach. No State party
is permitted to absolve itselfor any other nation of liability for committing a grave breach.
Thus, the WCA does not criminalize an breaches of the Geneva Conventions. Failure to
follow some ofthe regulations regarding the treatment ofPOWs, such as difficulty in meeting an
of the conditions set forth for POW camp conditions, does not constitute a grave breach within
the meaning of Geneva Convention III, art. 130. Only by causing great suffering or serious
bodily injury to POWs, killing or torturing them, depriving them of access to a fair trial, or
forcing them to serve in the Armed Forces, could the United States actually commit a grave
breach of the Geneva Convention III. Similarly, unintentional, isolated collateral damage on
civilian targets would not constitute a grave breach within the meaning of Geneva Convention
IV, art. 147. Article 147 requires that for a grave breach to have occurred, destruction of
property must have been done "w antonly" and without military justification, while the killing or
injury of civilians must have been "wilful."
D. Common Article 3 or/he Geneva Conventions
Section 2441 (c)(3) defines as a war crime conduct that "constitutes a violation of
common Article 3" of the Geneva Conventions. Article 3 is a unique provision in the
Conventions that governs the conduct of signatories to the Conventions in a particular kind of
conflict that is not a conflict between High Contracting Parties to the Conventions. Thus,
common Article 3 may require the United States, as a High Contracting Party, to follow certain
rules even if other parties to the conflict are not parties to the Conventions. On the other hand,
Article 3 requires state part.ies to follow only certain minimum standards of treatment toward
prisoners, civilians, or the sick and wounded, rather than the Conventions as a whole.
Common Article 3 reads in relevant part as follows:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shan in all circumstances be
treated humanely, without any adverse distinction founded on race, color, religion
or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and
in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of an kinds, mutilation,
crueltreatment and torture;
. (b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording an the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shallbe collected and cared for ....
The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict.
Article 3 complements common Article 2. Article 2 applies to cases of declared war or
of any other armed conflict that may arise between two or more of the High Contracting Parties,
even if the state of war is not recognized by one of them. 10 Common Article 3, however, covers
Harmed conflict not of an international character" -- a war that does not involve cross-border
attacks -- that occurs within the territory of one of the High Contracting Parties. There is
substantial reason to think that this language refers specifically to a condition of civil war, or a
large-scale armed conflict between a State and an armed movement within its territory.
To begin with, the text of Article 3 stronglysupports the interpretation that that Article
was intended to apply to large-scale conflicts between a State and an insurgent group. First, the
language at the end ofArticle 3 states that "[tjhe application of the preceding provisions shall not
affect the legal status of the Parties to the conflict." This provision was designed to ensure that a
Party that observed Article 3 during a civil war would not be understood to have granted the
"recognition of the insurgents as an adverse party." Frits Kalshoven, Constraints on the Waging
of War 59 (1987). Second, Article 3 is in terms limited to "armed conflict ... occurring in the
territory of one of the High Contracting Parties" (emphasis added). This limitation makes
perfect sense if the Article applies to civil wars, which are fought primarily or solely within the
territory of a single state. The limitation makes little sense, however, as applied to a conflict
between a State and a transnational terrorist group, which may operate from different territorial
bases, some of which might be located in States that are parties to the Conventions and some of
which might not be, In such a case, the Conventions would apply to a single armed conflict in
some scenes of action but not in others -- which seems inexplicable.
Furthermore, this interpretation is supported by commentators. The Commentary on the
Additional Protocols 018 June 1977 to the Geneva Conventions of12 August 1949 (Yves Sandoz
et at eds., 1987) states at 1 4339 that "a non-international armed conflict is distinct from an
international armed conflict because of the legal status of the entities opposing each other: the
parties to the conflict are not sovereign States, but the government of a single State in conflict
with one or more armed factions within its territory." A legal scholar writing in the same year in
which the Conventions were prepared stated that "a conflict not of an international character
occurring in the territory of one of the High Contracting Parties' ... must normally mean a civil
war." Gutteridge, supra n.l 0, at 300.
Analysis of the background to the adoption of the Geneva Conventions in 1949 confirms
our understanding of common Article 3. It appears that the drafters of the Conventions had in
mind only the two forms of armed conflict that were regarded as matters of general international
concern at the time: armed conflict between Nation StatesIsubject to Article 2), and large-scale
civil war within a Nation State (subject to Article 3). To understand the context in which the
Geneva Conventions were drafted, it will he helpful to identify three distinct phases in the
development ofthe Jaws ofwar.
10 Article 2's reference to a state of war "not recognized" 'by a belligerent was apparently intended to refer
to conflicts such as the 1937 war between China and Japan. Both sides denied that a state of war existed. See Joyce
A.,C. Gutteridge, The Geneva Conventions of1949.26 Brit. Y.B. Int'l L. 294, 298-99 (J949).
First, the traditional law of war was based on a stark dichotomy between "belligerency"
and "insurgency." The category of "belligerency" applied to armed conflicts between sovereign
States (unless there was recognition of belligerency in a civil war), while the category of
"insurgency" applied to armed violence breaking out within the territory of a sovereign State.!'
Correspondingly, way. Inter-State wars were regulated bya body of international legal rules governing both the
conduct of hostilities and the protection of noncombatants. By contrast, there were very few
international rules governing civil unrest, for States preferred to regard internal strife as
rebellion, mutiny and treason coming within the purview of national criminal law, which
precluded any possible intrusion by other States. See The Prosecutor v. Dusko Tadic
(Jurisdiction of the Tribunal}, (Appeals Chamber of the International Criminal Tribunal for the
Fonner Yugoslavia 1995) (the "ICTYJI), ] 05 lL.R. 453, 504-05 (E. Lauterpacht and C.J.
Greenwood eds., 1997) .. This was a "clearly sovereignty-oriented" phase of international law.
Jd. at 505; see also Gerald Irving Draper, Reflections on Law and Armed Conflicts ] 07 (1998)
("Before 1949, in the absence of recognized belligerency accorded to the elements opposed to
the government of a State, the law of war ... had no application to internal armed conflicts....
International law had little or nothing to say as to how the armed rebellion was crushed by the
government concerned, for such matters fell within the domestic jurisdiction of States. Such
conflicts were often waged with great lack ofrestraint and cruelty. Such conduct was a domestic
In the second phase, which began as early as the Spanish Civil War (1936-39) and which
extended through the time of the drafting of the Geneva Conventions until relatively recently,
State practice began to apply certain general principles of humanitarian law beyond the
traditional field of State-to-State conflict to "those internal conflicts that constituted large-scale
civil wars." Tadic, 105 I.L.R. at 507. 12 In addition- to the Spanish Civil War, events in 1947
during the Civil War between the Communists and the Nationalist regime in China illustrated
this new tendency. See id. at 508. Common Article 3, which was prepared during this second
phase, was apparently addressed to armed conflicts akin to the Chinese and Spanish civil wars.
See Draper, Reflections on Law and Armed Conflicts, supra, at 108 (Article 3 was designed to
restrain governments "in the handling of armed violence directed against them for the express
purpose of secession or at securing a change in the government of a State," but even after the
adoption of the Conventions it remained "uncertain whether [Article 3] applied to full-scale civil
The third phase represents a more complete break than the second with the traditional
"State-sovereignty-oriented approach" ofintemationallaw. This approach gives central place to
individual human rights. As a consequence, it blurs the distinction between international and
internal armed conflicts, and conflict. This approach is well illustrated by the ICTY's decision in Tadic itself, which appears
11 See Joseph H. Beale, Jr., The Recognition ofCuban Belligerency, 9 Harv. L. Rev. 406, 406 n.l (J896).
J2 Indeed, the events of the Spanish Civil-War, in which "both the republican Government [of Spain] and
third States refused to recognize the [Nationalist] insurgents as belligerents," id. at 507, may cornmon Article 3's reference to "the legal status of the Parties to the conflict."
to take the view that common Article 3 'applies to non-international armed conflicts of any
description, and is not limited to civil wars between a State and an insurgent group. In this
conception, common Article 3 is not just a complement to common Article 2; rather, it is a catchall
that establishes standards for any and all armed conflicts not included in common Article 2. 13
Nonetheless, despite this recent trend, we think that such an interpretation of common
Article 3 fails to take into account, not only the language of the provision, but also its historical
context. First, as we have described above, such a reading is inconsistent with the text of Article
3 itself, which applies only to "armed conflict not of an international character occurring in the
territory of one of the High Contacting Parties." In conjunction with common Article 2, the text
of Article 3 simply does not reach international conflicts where both parties are not Nation
States. Ifwe were to read the Geneva Conventions as applying to all forms of armed conflict, we
would expect the High Contracting Parties to have used broader language, which they easily
could have done. To interpret common Article 3 by expanding its scope well beyond the
meaning borne by the text is effectively to amend the Geneva Conventions without the approval
ofthe State Parties to the agreements.
Second, as we have discussed, Article 3 was prepared during a period in which the
traditional, State-centered view of international Jaw was still dominant and was only just
beginning to give way to a human-rights-based approach. Giving due weight to the State
J3 We acknowledge that an interpretation of conunon Artide 3 that would apply it to all forms of noninternational
armed conflict accords better with some recent approaches to international humanitarian law. For
example, the Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August
/949. supra, after first stating in the text that Article 3 applies when "the government ofa single State [is] in conflict
with one or more armed factions within its territory," thereafter suggests, in a footnote, that an armed conflict not of
an international character "may also exist in which armed factions fight against each other without intervention by
the armed forces of the established government." /d." 4339 at 0.2. A still broader interpretation appears to be
supported by the language of the decision of the International Court of Justice (the "IC]") in Nicaragua v. United
States -- which, it should be made clear, tbe United States refused to acknowledge by withdrawing from the
compulsory jurisdiction ofthe ICJ:
Article 3 which is common to all four Geneva Conventions of 12 August 1949 defines certain
rules to be applied in the armed conflicts ofa non-international character. There is no doubt that,
in the event of international armed conflicts, these rules also constitute a minimum yardstick, in
addition to the more elaborate rules which are also to apply to international conflicts; and they are
rules which, in the Court's opinion, reflect what the Court in J949 called "elementary
considerations ofhumanity" (Corfu Channel, Merits, I.CJ. Reports 1949, p.22 ...).
Military and Paramilitary Activities In and Against Nicaragua (Nicaragua v. United States), (International Court of
Justice 1986),76 I.L.R. 1,448,11 218 (E. Lauterpacht and C.J. Greenwood eds., 1988) (emphasis added). The ICJ's
language is probably best read to suggest that an "armed conflicts" are either international or non-international, and
that if they are non-international, they are governed by common Article 3. If that is the correct understanding ofthe
quoted language, however, it should be noted that the result was merely stated as a conclusion, without taking
account either of the precise language ofArticle 3 or ofthe background to its adoption. Moreover, while it was true
that one of the conflicts to which the IC] was addressing itself - "[t]he conflict between the contras' forces and those
ofthe Govenunent of Nicaragua" - was "an armed conflict which is 'not of an international character," id. at 448, ~
219, that conflict was recognizably a civil war between a State and an insurgent group, not a conflict between or
among violent factions in a territory in which th_e State had collapsed. Thus there is room to question the scope of
the ICJ's interpretation of co~on Article 3.
practice and doctrinal understanding of the time, it seems to us overwhelmingly likely that an
armed conflict between a Nation State and a transnational terrorist organization, or between a
Nation State and a failed State harboring and supporting a transnational terrorist organization,
could not have been within the contemplation of the drafters of common ArticJe 3. These would
have been simply unforeseen and, therefore, unprovided-for cases. Indeed, it seems to have been
uncertain even a decade after the Conventions were signed whether common Article 3 applied to
armed conflicts that were neither international in character nor civil wars but anti-colonialist
wars of independence such as those in Algeria and Kenya.. See Gerald Irving Draper, The Red
Cross Conventions 15 (1957). Further, it is telling that in order to address this unforeseen
circumstance, the State Parties to the Geneva Conventions did not attempt to distort the terms of
common Article 3 to apply it to cases that did not fit within its terms, but instead drafted two new
protocols (neither of which the United States has ratified) to adapt the Conventions to the
conditions ofcontemporary hostilities. See, e.g., Protocol Additional to the Geneva Conventions
of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts
(Protocol I), June 8, ] 977, ] 125 V.N.T.S. 4; Protocol Additional to the Geneva Conventions of
]2 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts
(Protocol II), June 8, ]977, 1125 D.N.T.S. 610. Accordingly, common Article 3 is best
understood not to apply to such armed conflicts.
Third, it appears that in enacting the WCA, Congress did not understand the scope of
Article 3 to extend beyond civil wars to all other types of internal armed conflict. As discussed
in our review of the legisJative history above, when extending the WCA to cover violations of
common Article 3, the House apparently understood that it was codifying treaty provisions that
"forbid atrocities occurring in both civil wars and wars between nations." ] 43 Congo Rec.
H5865-66 (daily ed. July 28, 1997) (remarks of Rep. Jenkins). If Congress had embraced a
much broader view of common Article 3, and hence of 18 U.S.C. § 2441, we would expect both
the statutory text and the legislative history to have included som~ type of clear statement of
congressional intent. The WCA regulates the manner in which the U.S. Armed Forces may
conduct military operations against the enemy; as such, it potentially comes into conflict with the
President's Commander in Chiefpower under Article II of the Constitution. As we have advised
your Office earlier in this conflict, the Commander in Chief power gives the President the
plenary authority in determining how best to deploy troops in the field. Memorandum for
Timothy E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: The President's Constitutional Authority to
Conduct Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 200]).
Any congressional effort to restrict presidential authority by subjecting the conduct of the U.S.
Armed Forces to a broad construction of the Geneva Convention, one that is not clearly borne by
its text, would represent a possible infringement on presidential discretion to direct the military.
We believe that Congress must state explicitly its intention to restrict the President's plenary
constitutional power over military operations (including the treatment of captives), and that,
unless Congress clearly signals such an intent, the WCA must be read to avoid such
constitutional problems. Cf. Public Citizen v. Department ofJustice, 491 U.S. 440, 466 (1989)
(construing Federal Advisory Committee Act to avoid encroachment on presidential power);
Ashwander v. TVA, 297 U.S. 288, 346-48 (1936) (Brandeis, J., concurring) (stating rule of
avoidance); Association ofAm. Physicians & Surgeons, Inc. V. Clinton, 997 F.2d 898, 906-] 1
(D.C. Cir. 1993) (same). As Congress has not signaled such a clear intention in this case, we
conclude that common Article 3 should not be read to include all forms of non-international
armed conflict.
E. Amended Protocol/Ion Mines
Finally, the WCA provides for the future incorporation into the federal criminal law of
treaties that the United States had not yet ratified. Section 2441 (c)(4) defines as a war crime any
person who, in relation to an armed conflict, acts "contrary to the provisions" of the Amended
Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices,
S. Treaty Doc. No. 105-] (1997) (the "Amended Protocol II"). Part of the 1980 United Nations
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (the
"Conventional Weapons Convention"), 1342 V.N.T.S. ] 37 (1983), ]9 I.L.M. 1523 (1980), the
Amended Protocol II prohibits the indiscriminate use of mines, booby-traps and other devices,
and addresses the location and removal of mine fields. The United States has signed and ratified
the 1980 United Nations Convention on Conventional Weapons (including the original Protocol
Il, see Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other
Devices (1980» and the Amended Protocol II.
Nonetheless, the Amended Protocol II still does not cover the conduct of U.S. military
forces towards persons captured in Afghanistan because it contains the same jurisdictional
provisions as the Geneva Conventions. Article 1(2) of the Amended Protocol II states that it
applies to "situations referred to in Article I" of the 1980 Convention, and also to situations
referred to in common Article 3 of the Geneva Conventions. Article 1 of the 1980 Convention
directly incorporates the coverage of common Article 2 of the Geneva Conventions. Articles
1(2) and 1(3) of the Amended Protocol II, then, parallel common Article 3 of the Geneva
Conventions. We have examined common Article 2 above, and concluded that it renders the
Geneva Conventions applicable solely to State parties. Insofar" as the Amended Protocol II
tracks common Article 2, it is therefore inapplicable to conflict against non-State "parties.
Articles 1(2) and ](3) of the Amended Protocol Ilcover situations referred to in common Article
3. Thus, our analysis of the relationship between common Article 3 and § 2441(c)(3) carries
over here, which means that the Amended ProtocollI would not apply to a trans-border conflict
involving a non-State. 1.4
14 Article I of the 1980 Conventional Weapons Convention, incorporated through the Amendment
Protocol, contains an additional category of jurisdiction - that of the Additional Protocol I to the Geneva
Conventions. Article 1(4) oftbe 1977 Geneva Protocol I Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection ofVictims of International Armed Conflicts, 1125 V.N.T.S. 3 (1979), 16 I.L.M. 1391
(1977), states that Protocol applies in situations that "include armed conflicts in which peoples are fighting against
colonial domination and alien occupation and against racist regimes in the exercise of their right of selfdetermination,"
Whatever the precise scope of this clause, we do not think that its terms applies to any conflict
involved in Afghanistan. In any event, the United States to date has not ratified either the Protocol I or the Amended
Mines Protocol, so they are neither an Article II treaty nor a provision. incorporated through 18 U.S.C. § 2441, and
thus cannot apply to the conduct of U.S. Armed Forces in Afghanistan, including their treatment ofprisoners.
II. Application or WCA and Associated Treaties to of Qaeda
It is clear from the foregoing that members of the al Qaeda terrorist organization do not
receive the protections of the laws of war, and hence that actions taken by the U.S. Armed Forces
with respect to captured members of al Qaeda are not covered by the WCA. There are four
reasons, examined in detail below, that support this conclusion. First, al Qaeda's status as a nonState
actor renders it ineligible to claim the protections of the treaties specified in the WCA.
Second, the nature of the conflict precludes application of common Article 3 of the Geneva
Conventions. Third, al Qaeda members fail to satisfy the eligibility requirements for treatment
as POWs under Geneva Convention III. Fourth, even if al Qaeda were covered, its conduct on
September 11, if not before, removes any Hague Convention protections its members might have
First, al Qaeda's status as a non-State actor renders it ineligible to claim the protections
ofthe treaties specified by the WCA. Al Qaeda is not a State. It is a non-govenunental terrorist
organization composed of members from many nations, with ongoing operations in dozens of
nations, who seem united in following a radical brand of Islam that seeks to attack Americans
throughout the world. No non-governmental organizations are, or could be, parties to any of the
international agreements here governing the laws of war. Thus, al Qaeda is not eligible to sign
the Hague Convention lV or the Geneva Conventions -- and even if it were eligible, it has not
done so. As a result, the U.S. military's treatment of al Qaeda members is not governed by the
Hague Convention IV, which by its terms explicitly applies only to the High Contracting Parties
to the agreement. Further, al Qaeda cannot claim the protections of the bulk of the Geneva
Conventions, whose scope in common Article 2 is limited only to cases of declared war or armed
conflict "between two or more of the High Contracting Parties." Conduct towards captured
members of al Qaeda, therefore, cannot constitute a violation of 18 U.S.C. § 2441(c)(l) or §
244! (c)(2).
It might be argued, however, with respect to the Hague Convention N, that the WCA
does not simply incorporate the terms of the treaty itself, with all of their limitations on
application, but instead criminalizes the conduct described by that Convention. The argument
starts from the fact that there is a textual difference in the way that the WCA references treaty
provisions. Section 2441 (c)(2) defines as a war crime conduct "prohibited" by the relevant
sections of the Hague Convention IV. By contrast, § 2441 (c)(l) makes a war crime any conduct
that is a "grave breach" of the Geneva Conventions, and § 2441(c)(3) prohibits conduct "which
constitutes a violation'! of common Article 3 of the Geneva Convention. It might be argued that
this difference indicates that § 2441(c)(2) does not incorporate the treaty into federal law; rather,
it prohibits the conduct described by the treaty. Section 2441 (c )(3) prohibits conduct "which
constitutes a violation of common Article 3" (emphasis added), and that can only be conduct
which is a treaty violation. Likewise, § 2441(c)(I) only criminalizes conduct that is a "grave
breach" of the Geneva Conventions - which, again, must be treaty violations. In other words, §
2441 (c)(2) might be read to apply even when the Hague Convention IV, by its own terms, would
not. On this interpretation, an act could violate § 2441 (c)(2), whether or not the Hague
Convention N applied to the specific situation at issue.
We do not think that this interpretation is tenable. To begin with, § 2441(c)(2) makes
clear that to be a war crime, conduct must be "prohibited" by the Hague Convention IV
(emphasis added). Use of the word "prohibited," rather than phrases such as "referred to" or
"described," indicates that the treaty must, by its own operationproscribe the conduct at issue. If
the Hague Convention IV does not itself apply to a certain conflict, then it cannot itself proscribe
any conduct undertaken as part of that conflict. Thus, the most natural reading of the statutory
language is that an individual must violate the Hague Convention IV in order to violate Section
244 1(c)(2). Had Congress intended broadly to criminalize the types ofconduct proscribed by the
relevant Hague Convention IV provisions as such, rather than as treaty violations, it could have
done so more clearly. Furthermore, the basic purpose of § 2441 was to implement, by
appropriate legislation, the United States' treaty obligations. That purpose would be
accomplished by criminalizing acts that were also' violations of certain key provisions of the
Annex to Hague Convention IV. ·It would not be served by criminalizing acts of the kind
condemned by those provisions, whether or not they were treaty violations. 15
Second, the nature of the conflict precludes application of the common Article 3 of the
Geneva Conventions. AI Qaeda is not covered by common Article 3, which does not apply to
the current conflict. As discussed in Part I, the text of Article 3, when read in harmony with
common Article 2, shows that the Geneva Conventions were intended to cover either: a)
traditional wars between Nation States (Article 2), or non-international civil wars (Article 3).
Our conflict with al Qaeda does not fit into either category. That conflict is not an international
war between Nation States, but rather a conflict between a Nation State and a non-governmental
organization. At the same time, the conflict is not a civil war under Article 3, because it is a
conflict of "an international character," rather than an internal armed conflict between parties
contending for control over a govenunent or territory. Therefore, the military's treatment of al
Qaeda members captured in that conflict is not limited either by common Article 3 of the Geneva
Conventions or 18 U.S.C. § 2441 (c)(3), the provision of the WCA incorporating that article.
. This understanding is supported by the WCA's legislative history. When extending the
WCA to cover violations of common Article 3, the House apparently understood that it was
codifying treaty provisions that "forbid atrocities occurring in both civil wars and wars between
nations." 143 Congo Rec. H5865-66 (remarks ofRep. Jenkins). The Senate also understood that
"[tjhe inclusion of common article 3 of the Geneva Conventions ... expressly allows the United
States to prosecute war crimes perpetrated in nonintemational conflicts, such as Bosnia and
Rwanda." 143 Congo Rec. S7544, S7589 (daily ed. July 16, 1997) (remarks of Sen. Leahy). In
referring to Bosnia and Rwanda, both civil wars of a non-international character, Senator Leahy
appears to have understood common Article 3 as covering only civil wars as well. Thus,
Congress apparently believed that the WCA would apply only to traditional international wars
between States, or purely internal civil wars.
15 Nothing in the legislative history supports the opposite result. To the contrary) the legislative history
suggests an entirely different explanation for the minor variations in language between §§ 2441(c)(1) and
2441(c)(2) .. As originally enacted, the WCA.criminalized violations of the Geneva Conventions. See Pub. L. No.
104-192, § 2(a), 110 Stat. 2104, § 2401 (1996). In signing the original legislation) President Clinton urged that it be
expanded Co include ocher serious war crimes involving violation 'of the Hague Conventions IV and the Amended
Protocol 1I. See 2 Pub. Papers of WiJJiam J. Clinton 1323 (l996). The Expanded War Crimes Act of 1997,
introduced as H.R. ]348 in the IOSlh Congress, was designed to meet these requests. Thus, § 2441(c)(2) was added
as an amendment at a later time, and was not drafted at the same time and in the same process as § 244 I(c)(I).
Third, at Qaeda members fail to satisfy the eligibility requirements for treatment as
POWs under Geneva Convention Ill. It might .be argued that, even though it is not a State
signatory to the Geneva Convention, aI Qaeda could be covered by some protections in Geneva
Convention III on the treatment ofPOWs. Article 4(A)(2) of the Geneva Convention III defines
prisoners of war as including not only captured members of the armed forces of a High
Contracting Party, but also irregular forces such as "[m]embers of other militias and members of
other volunteer corps, including those of organized resistance movements." Geneva Convention
III, art. 4. Article 4(A)(3) also includes as POWs "[mjembers of regular armed forces who
profess allegiance to a govenunent or an authority not recognized by the Detaining Power. n Jd.
art. 4{A)(3).· It might be claimed that the broad terms of these provisions could be stretched to
cover al Qaeda. Article 4, however, does not expand the application of the Convention beyond
the circumstances expressly addressed in common Articles 2 and 3. Unless there is a conflict
subject to Article 2 or 3 (the Convention's jurisdictional provisions), Article 4 simply does not
apply. As we have argued in Part I(D) with respect to Article 3, and shall further argue in Part
III(B)-(C) with respect to Article 2, there is no such conflict here; hence, Article 4 has no
application. In other words, Article 4 cannot be read as an alternative, and far more expansive,
statement of the application of the Convention. It merely specifies, where there is a conflict
covered by the Convention, who must be accorded POW status.
Even if Article 4, however, were considered somehow to be jurisdictional as well as
substantive, captured members of al Qaeda still would not receive the protections accorded to
POWs. Article 4(A)(2), for example, further requires that the militia or volunteers follow the
requirements of the Hague Convention IV in that they are under the command of a responsible
person, that they wear recognizable insignia, that they carry arms openly, and that they obey the
Jaws and customs of war. In attacking the Pentagon and the World Trade Centers by disguising
themselves and then hijacking airplanes, al Qaeda terrorists violated all four. of the Hague
Convention IV standards. Article 4(A)(3) also is inapt: al Qaeda are not members of "regular
armed forces."
Fourth, even if aJ Qaeda were covered, its conduct on September 11, if not before,
removes any Hague Convention protections its members might have had. Even if al Qaeda were
somehow eligible for some protections under the relevant treaties, it has.forfeited those rights by
its own conduct. As discussed earlier, Hague Convention IV declares that the "laws, rights and
duties of war" only apply to armies, militia, and volunteer corps when they fulfill four
conditions: command by responsible individuals, wearing insignia, carrying arms openly, and
obeying the laws of war. Al Qaeda has never obeyed these requirements in any of its attacks on
the United States and its citizens, as exemplified by its September II, 2001 attack on a purely
civilian target, the World Trade Center, by using disguised hijackers to tum civilian airliners into
guided missiles. By conducting itself in this manner, al Qaeda is deprived of any protections it
could claim under the Hague Convention IV. Actions affecting al Qaeda members, then, still
would be unregulated by Hague Convention N or by the corresponding provision of the WCA.
III. Application of/he WCA and Associated Treaties to the Taliban Militia
While application of the WCA to al Qaeda is relatively straightforward, the treatment of
the TaJiban militia poses more difficulties for legal analysis because of the ambiguous legal
status of the Taliban and of Afghanistan. In contrast to al Qaeda, Afghanistan is, or was, a State.
Moreover, -it has signed and ratified all four of the Geneva Conventions.!" although it has not
signed the Hague Convention IV. On the face of it, therefore, the Geneva Conventions (and the
WCA, insofar as it incorporates them) might apply to the presentconflict between the United
States and Afghanistan, and thereby to the Taliban militia. Nonetheless, the President has the
constitutional authority to determine that Afghanistan is a "failed State," so that the Conventions
are currently inoperative as to that country. I? Alternatively, even if the President found that
Afghanistan is not in a condition ofstatelessness, the President would be acting within the scope
of his constitutional authority if he decided to suspend the Conventions in whole or in part as to
Afghanistan. These grounds could include a" determination that Afghanistan is presently
incapable of performing its Convention obligations (a determination that would be very close to
finding that the country is stateless), or a determination that Afghanistan has committed material
breaches of the Conventions sufficient to justify suspension of at least some Convention
obligations. We outline these alternatives immediately below.
A. Application ofthe Hague Convention IV and 18 US.C. §2441(c)(2)
The treatment of the Taliban militia is clearest in the laws of war concerning battlefield
conduct. If the Taliban militia is considered a non-governmental terrorist organization aligned
with and akin to a] Qaeda, albeit on a different scale with different objectives, then it is not a
Nation State eligible to be a party to any of the laws of war treaties. Our analysis as to the
application of the Hague Convention N and the Geneva Conventions to al Qaeda then would
simply be duplicated as 10 the Taliban, and neither the treaties nor the WCA would apply to U.S.
military action against either group. As we do not have the facts necessary to make such a
judgment, however, we proceed here on the assumption that the Taliban and al Qaeda are distinct
groups, "and that the Taliban lay claim to being the government of the State of Afghanistan.
Even if the Taliban militia were thought to be the government of the State of Afghanistan,
however, it would still not receive protection under the Hague Convention W.. Afghanistan
simply is not a High Contracting Party to that agreement.
It is true that Afghanistan did not obtain its freedom to manage its own foreign affairs
until the 1919 Treaty of Rawalpindi. Previously, the 1879 Treaty of Gandamak had provided for
British control of Afghanistan's foreign affairs. See Larry P. Goodson, Afghanistan's Endless
War: State Failure, Regional Politics, and the Rise ofthe Taliban 34-36 (2001). Thus, Afghan
foreign affairs in 1907 - when the Hague Convention IV was prepared - were under British
control. It is conceivable, therefore, that Afghanistan might be considered to be a party to that
16 See Adam Roberts and Richard GueJff(eds.), Documents on the Laws a/War 355 (3d ed. 2000).
17 "As treaties are contracts between nations, the disappearance of one of the parties to the agreement
renders performance impossible." John C. Yoo, Politics as Law?: The Anti-Ballistic Missile Treaty, The Separation
of'Powers, and Treaty Interpretation, 89 Calif. L. Rev. 851,905 (200]).
Convention because of its relationship with Great Britain, which signed the Convention in 1907
and ratified it in 1909. International law, however, generally maintains that upon becoming
independent, a new Nation is not to be presumed to have succeeded to the treaty rights and
obligations of its former colonial master. See Restatement (Third) ofthe Foreign Relations Law
ofthe United States, § 210 & cmt. f(1987); Yoo, supra n.17~ at 905-06. That presumption might
be overcome by affirmative evidence that Afghanistan both could have succeeded to the Hague
Convention IV upon becoming independent in 1919 and that it took some appropriate steps to
signal that it was a party to that Convention, but we are aware ofno such evidence. Accordingly,
we conclude that Afghanistan is not a party to the agreement. Thus, any U.S. military operations
against the Taliban are not restricted either by the Hague Convention IV or 18 U.S.C. §
2441 (c)(2), the provision in the WCA incorporating certain articles of that Convention.
B. Application ofthe Geneva Conventions to the Taliban Militia
Whether the Geneva Conventions apply to the Taliban militia, however, is a more
difficult question. Afghanistan has been a party to all four of the Conventions since September
1956. This would appear to require application of the Geneva Conventions to the present
conflict with respect to the Taliban militia, which would then trigger the WCA. Nonetheless, we
believe that the President has the constitutional authority to find that Afghanistan was a failed
State during the period in which the Taliban exercised control over most of the country and that
it remains so at present. Should the President make such a determination, it would follow that
the Taliban militia, like al Qaeda, is not entitled to the protections of the Geneva Conventions.
Constitutional Authority. It is clear that, under the Constitution, the President has the
plenary authority to determine that Afghanistan is no longer an operating State and therefore that
members of the Taliban are not protected by the Geneva Conventions.!" As an initial matter,
Article 11 makes clear that the President is vested with all of the federal executive power, that he
"shall be Commander in Chief," that he shall appoint, with the advice and consent of the Senate,
and receive, ambassadors, and that he 'll sh all have Power, by and with the Advice and Consent of
the Senate, to make Treaties," U.S. Const., art. II, § 2, cl. 2. Congress possesses its own specific
foreign affairs powers, primarily those of declaring war, raising and funding the military, and
regulating international connnerce. While Article Il, § 1 of the Constitution grants the President
18 This is not to maintain that Afghanistan ceased to be a State party to the Geneva Conventions merely
because it underwent a change ofgovernment in 1996, after the military successes of Taliban, The general rule of
international Jaw is that treaty relations survive a change ofgovernment. See, e.g., 2 Marjorie M. Whiteman, Digest
ofInternational Law 771-73 (1963); J.L. Brierly, The Law ofNations 144-45 (61JJ ed. 1963); Eleanor C. McDoweJl,
Contemporary Practice ofthe United States Relating to International Law, 71 Am. J.lnt'l L. 337 (1977). However,
although ..[u]nder international law, a change in government alone generaJly does not alter a state's obligations to
honor its treaty conunitments ... fa] different and more difficult question arises ... when the state itself dissolves."
Y00, supra n.17, at 904. Furthermore, we are not suggesting that the United States' nonrecognition of the Taliban as
the govenunent of Afghanistan in and of itself deprives Afghanistan ofparty status under the Geneva Conventions.
The general rule is that treaties may still be observed even as to State parties, the current governments ofwhich have
been unrecognized. See New York Chinese TV Programs v. UE. Enterprises, 954 F.2d 847 (2d Cir.), cert. denied,
506 U.S. 827 (1992); see also Restatement (Third) ofthe Foreign Relations Law ofthe United States at § 202 cmts.
3, b; Egon SchweJb, The Nuclear Test Ban Treaty and International Law, 58 Am. J. Int'l L. 642, 655 (1964)
(quoting statements of President Kennedy and Secretary of State Rusk that participation in a multilateral treaty does
not affect recognition status).
an undefined executive power, Article I, § 1 limits Congress to ~1[a]ll legislative Powers herein
granted" in the rest ofArticle I.
From the very beginnings of the Republic, this constitutional arrangement has been
understood to grant the President plenary control over the conduct of foreign relations. As
Secretary of State Thomas Jefferson observed during the first Washington Administration: "The
constitution has divided the powers of government into three branches [and] ... has declared that
'the executive powers shall be vested in the President,' submitting only special articles of it to a
negative by the senate." Thomas' Jefferson, Opinion on the Powers of the Senate Respecting
Diplomatic Appointments (1790), reprinted in 16 The Papers ofThomas Jefferson 378 (Julian P.
Boyd ed., 1961). Due to this structure, Jefferson continued, "[tjhe transaction of business with
foreign nations is Executive altogether. It belongs then to the head of that department, except as
to such portions of it as are specially submitted to the Senate. Exceptions are to be construed
strictly." ld. at 379. In defending President Washington's authority to issue the Neutrality
Proclamation, Alexander Hamilton came to the same interpretation of the President's foreign
affairs powers. According to Hamilton, Article II "ought ... to be considered as intended ... to
specify and regulate the principal articles implied in the definition of Executive Power; leaving
the rest to flow from the general grant of that power." Alexander Hamilton, Pacificus No. 1
(1793), reprinted in 15 The Papers ofAlexander Hamilton 33, 39 (Harold C. Syrett et al. eds.,
1969). As future Chief Justice John Marshall famously declared a few years later, "The
President is the sole organ of the nation in its external relations, and its sole representative with
foreign nations .. -.. The [executive] department ... is entrusted with the whole foreign
intercourse of the nation ....J) 10 Annals of Congo 613-14 (1800). Given the agreement of
Jefferson, Hamilton, and Marshall, it has not been difficult for the executive branch consistently
, to ~ssert the President's plenary authority in foreign affairs ever since.
On the few occasions where it has addressed the question, the Supreme Court has lent its
approval to the executive branch's broad powers in the field of foreign affairs. Responsibility for
the conduct of foreign affairs and for protecting ·the national security are, as the Supreme Court
has observed, "central' Presidential domains." Harlow v. Fitzgerald, 457 U.S. 800, 812 n.l9
(1982). The President's constitutional primacy flows from both his unique position in the
constitutional structure, and from the specific grants of authority in Article 1I that make the
President both the Chief Executive of the nation and the Commander in Chief. Nixon V.
Fitzgerald, 457 U.S. 731, 749-50 (1982). Due to the President's constitutionally superior
position, the Supreme Court has consistently "recognized 'the generally accepted view that
foreign policy [is] the province and responsibility of the Executive." Department ofthe Navy v.
Egan, 484 U.S. 518, 529 (1988) (quoting Haig v. Agee, 453 U.S. 280, 293-94 (1981»). This
foreign affairs power is independent of Congress: it is "the very delicate, plenary and exclusive
power of the President as sole organ of the federal government in the field of international
relations - a power which does not require as a basis for its exercise an act of Congress," United
States V. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).
Part of the President's plenary power over the conduct of the Nation's foreign relations is
the interpretation of treaties and ofintemationallaw. Interpretation ofintemationallaw includes
the determination whether. a territory has the necessary political structure to qualify as a Nation
State for' purposes of treaty" implementation. In Clark v. Allen, 331 U.S. 503 (1947), for
example, the Supreme Court considered whether a 1923 treaty with Germany continued to exist
after the defeat, occupation and partition of Germany by the victorious World War II Allies. The
Court rejected the argument that the treaty "must be held to have failed to survive the [Second
World War], since Germany, as a result of its defeat and the occupation by the Allies, has ceased
to exist as an independent national or international community." Id. at 514. Instead, the Court
held that lithe question whether a state is in a position to perform its treaty obligations is
essentially a political question. Terlinden v. Ames, 184 U.S. 270, 288 [(1902»). We find no
evidence that the political departments have considered the collapse and surrender of Germany
as putting an end to such provisions of the treaty as survived the outbreak of the war or the
obligations of either party in respect to them." Id.; see also id. at 508-09 (president might have
"formulated a national policy quite inconsistent with the enforcement" ofthe treaty).
Thus, Clark demonstrates the Supreme Court's sanction for the President's constitutional
authority to determine the "political question" whether Germany had ceased to exist as a Nation
State and, if so, whether the 1923· treaty with Germany had become inoperative. Equally here,
the President may determine that Afghanistan is not "in a position .to perform its treaty
obligations" because it lacks, at least for the time being, the elements of statehood. If the
President made such a determination, the Geneva Conventions would be inoperative as to
Afghanistan, at least until its statehood was restored. The federal courts would not review such
political questions, but instead would defer to the decision of the President.
Status as a Failed State. While the decision whether Afghanistan was and remains a
failed State is up to the President alone, we believe that he has ample grounds upon which to
base such a decision. To begin with, intemationallaw recognizes situations in which there may
be a territory that has no "State." A variety of situations can answer to this description." Of
chiefrelevance here, however, is the category of the "failed State." The case ofSomalia in 1992,
at the time ofthe United States' intervention, provides a clear example of this category.
A "failed State" is generally characterized by the collapse or near-collapse of State
authority, by the inability of central authorities to maintain government institutions, ensure law
and order or engage in normal dealings with other governments, and by the prevalence of
violence that destabilizes civil society and the economy. The President could find that from the
outset of this conflict there is no functioning central government in Afghanistan (either now or
when the country was largely in the hands of the Taliban militia) that is capable of providing the
most basic services to the Afghan population, of suppressing endemic. internal violence, or of
maintaining normal relations with other governments. Afghanistan, consequently, would be
without the status of a State for purposes of treaty law, and the Taliban militia would not qualify
19 It is entirely possible in international Jaw for a territory (even a populated one) to be without any State.
In the Western Sahara Case, Advisory Opinion, 1975 I.e.J. 12 (Advisory Opinion May 22, 1975), the General
Assembly requested the IeJ to decide the question whether the Western Sahara at the time of Spanish colonization
was a territory belonging to no one. The question would have had no meaning unless there could be Stateless
territory without a State. See DJ. Harris, Cases and Materials on International Law 113 (1991). The Transkei, a
"homeland" created for the Xhosa people. by the Republic of South Africa in 1976, was also a territory not
intema tionaBy recognized as a State. See id. at 110-] ] .
as the de facto government of Afghanistan, but only as a violent faction or movement contending
with other factions for control ofthat country.
We want to make clear that this Office does not have access to all of the facts necessary
to make a fully informed decision on whether Afghanistan was and remains a failed State.
Nonetheless, the available facts in the public record would support such a decision by the
President .: including facts that pre-existed the recent military reversals suffered by the Taliban
in the past several weeks. Secretary of Defense Donald Rumsfeld, for example, declared at a
November 2, 2001 press conference that the "Taliban is not a government. The government of
Afghanistan does not exist today. The Taliban never was a government as such. It was a force
in the country that is not substantially weakened - in many cases cloistered away from the
. people." Secretary Rumsfeld Media Availability en Route to Moscow (Nov. 2,2001), available at
http://www.yale.eduJIawweb/avalonlsept.ll/dod brief64.htm (visited Nov. 8, 2001). Indeed, in
finding Afghanistan to be a failed State, the President would only be affirming the State'
Department's view, expressed near the start of the current conflict, that "[t]here is no functioning
central government [in Afghanistan]. The country is divided among fighting factions ... , The
Taliban [is] a radical Islamic movement [that] occupies about 90% of the country.,,20 It should
also be noted that prominent authorities agree that Afghanistan is a failed State. As one leading
scholar of international law has written, "[t]he most dramatic examples of the decline in state
authority can be found in countries where government and civil order have virtually disappeared.
Recent examples are Liberia, Somalia, and Afghanistan. The term 'failed states' has come to be
used for these cases and others like them." Oscar Schachter, The Decline ofthe Nation-State and
Its Implications for International Law, 36 Colum. J. Transnat'l L. 7, 18 (1997). Lakhdar
Brahimi, the United Nations mediator in Afghanistan and a former Algerian Foreign 'Minister,
described Afghanistan under the Taliban as a "failed state which looks like an infected wound."
Aluned Rashid, Taliban: Militant Islam, Oil & Fundamentalism in Central Asia 207 (2001).
We now tum to the analysis that the President may wish to follow in determining whether
Afghanistan is a failed State. A State has failed when centralized governmental authority has
almost completely collapsed, no central authorities are capable of maintaining government
institutions or ensuring law and order, and violence has destabilized civil society and the
economy" A failed State will not satisfy some or all ofthe three traditional tests for "statehood"
under intemationallaw:
20See Background Note: Afghanistan (October, 2001), available at
http://www.state.gov/r/pafbgnlindex.cfm?docid=5380 (visited Oct. 25, 2001), prepared by the Bureau of South
Asian Affairs. See also Reuters AlertNet - Afghanistan, Country Profiles ("There are no state-constituted armed
forces. It is not possible to show how ground forces' equipment has been divided among the different factions."),
available at http://www.altertnet.orglthefacts/countryprofilesI152478?version=1 (visited Nov. 1,2001).
21 "States in which institutions and law and order have totally or partially collapsed under the pressure and
amidst the confusion of erupting violence, yet which subsist as a ghostly presence on the world map, are now
commonly referred to as 'failed States' or 'Etats sans gouvernmement:" Daniel Thurer, The failed State. and
international law, International Review of the Red Cross No. 836 (Dec. 31, 1999), available at
http://www-icrc.org/englreview (visited Oct. 22, 200l). Somewhat different tests have been used for determining
whether a State has "failed." First, the most salient characteristic ofa "failed State" seems to be the disappearance of
a "central government." Yoram Dinstein, The Thirteenth Waldemar A. Solf Lecture in International Law, 166 Mil.
L. Rev. 93, 103 (2000); see a/so id. ("All that remains is a multiplicity of groups of irregular combatants fighting
i) Does the entity have a defined territory and population?
ii) Are the territory/population under the control of its own government?
iii) Does the entity engage in or have the capacity to engage in formal relations
with other States?
See Restatement (Third) of the Foreign Relations Law ofthe United States, at § 201; see also
1933 Montevideo Convention on Rights and Duties of States, art. I, 49 Stat. 3097, 28 Am. 1. InCI
L. Supp. 75 (1934). In another version of the traditional formulation, the State Department has
identified four tests for "statehood":
i) Does the entity have effective control over a clearly defined territory and
ii) Is there an organized governmental administration of the territory?
iii) Does the entity have the capacity to act effectively to conduct foreign relations
and to fulfill international obligations?
iv) Has the international community recognized the entity?
Eleanor C. McDowell, Contemporary Practice of the United States Relating to International
Law, 71 Am. J. Int'l L. 337 (1977).
Based on these factors, the President would have reasonable grounds to find that
Afghanistan was, even prior to the recent military defeats of Taliban, in a condition of
"statelessness," and therefore that it is not currently a High Contracting party to the Geneva
Conventions. The condition of having an organized .govemmental administration is plainly not
met; indeed, there are good reasons to doubt whether any ofthe conditions is met.
First, even at the outset of the current conflict, the TaJiban militia did not have effective
control over a clearly defined territory and population. Even before the United States air strikes
each other."), Closely related to this test, but perhaps somewhat broader, is the defmition of a "failed State" as "a
situation where the government is unable to discharge basic govenunentalfunctions with respect to its populace and
its territory. Consequently, laws are not made, cases are not decided, order is not preserved and societal cohesion
deteriorates. Basic services such as medical care, education, infrastructure maintenance, tax collection and other
functions and services rendered by central governing authorities cease to exist or exist only in limited areas." Ruth
Gordon, Growing Constitutions, ] U. Pa. J. Const. L. 528, 533-34 (] 999). Professor Thurer distinguishes three
elements (respectively, territorial, political and functional) said to characterize a "failed State": I} failed States
undergo an "implosion rather than an explosion of the structures of power and authority, the disintegration and
destructuring of States rather than their dismemberment;" 2) they experience "the total or near total breakdown of
structures guaranteeing law and order;" and 3) there are marked by "the absence of bodies capable, on the one hand,
of representing the State at the international level and, on the other, of being influenced by the outside world."
..- Thurer, supra.
began, at least ten percent of the country, and the population within those areas, was governed by
the Northern Alliance. (The recent military successes of the Northern Alliance have given it
control of most of the country, including the capital, Kabul.) A large part of the Afghan
population in recent years has consisted of refugees: as of June, 200], there were an estimated
2,000,000 Afghan refugees in Pakistan, and as of December, 2000, an estimated ] ,500,000 were
in Iran. 2 2 These figures demonstrate that a significant segment of the Afghan population was
never under the control of the Taliban militia.
Indeed, as we noted above, the State Department found that Afghanistan was not under
the control of a central government, but was instead divided among different warlords and ethnic
groups. The Taliban militia in essence represents only an ethnically Pashtun movement, a "tribal
militia,,,23 that did not command the allegiance of other major ethnic groups in Afghanistan and
that was apparently unable to suppress endemic violence in the country. As a prominent writer
on the Taliban militia wrote well before the current conflict began, "[e]ven if [the Taliban] were
to conquer the north, it would not bring stability, only continuing guerrilla war by the nonPashtuns,
but this time from bases in Central Asia and Iran which would further destabilize the
region." Rashid, supra, at 2] 3.
Second, again even before the United States air strikes and the successes of the Northern
AJJiance, an organized governmental administration did not exist in Afghanistan. One expert on
the Taliban concluded that the country had
ceased to exist as a viable state and when a state fails civil society is destroyed ...
. The entire Afghan population has been displaced, not once but many times over.
The physical destruction of Kabul has turned it into the Dresden of the late
twentieth century.... There is no semblance of an infrastructure that can sustain
society -- even at the lowest common denominator of poverty. .. . The economy
is a black hole that is sucking in its neighbours with illicit trade and the smuggling
of drugs and weapons, undermining them in the process. .. . Complex
relationships of power and authority built up over centuries have broken down
completely. No single group or leader has the legitimacy to reunite the country.
Rather than a national identity or kinship-tribal-based identities, territorial
regional identities have become paramount. ... [Tjhe Taliban refuse to define the
Afghan state they want to constitute and rule over, largely because they have no
idea what they want. The lack of a central authority, state organizations, a
methodology for command and control and mechanisms which can reflect some
level of popular participation ... make it impossible for many Afghans to accept
the Taliban or for the outside world to recognize a Taliban government. ... No
warlord faction has ever felt itself responsible for the civilian population, but the
2ZSee CNN.com.lIn.Depth Specials, War Against Terror, available at
http://www.cnn.comlSPECIALS/2001ltrade.center/refugee.map.html(visited Nov.· 1; 2001). Other estimates are
-lower but still extremely large numbers. See, e.g., Goodson; supra, at 149 (estimating 1.2 million Afghans living in
23 Goodson, supra, at 115.
Taliban are incapable of carrying out even the minimum of developmental work
because they believe that Islam win take care ofeveryone.
Id. at 207-08, 212-13. Another expert reached similar conclusions:
Afghanistan today has become a violent society, bereft of political institutions that
function correctly and an economy that functions at aIL When this is coupled
with the destruction of population and the physical infrastructure..., it becomes
clear that Afghanistan is a country on the edge of collapse, or at least profound
transformation. . .. With the Taliban, there are few meaningful governmental
structures and little that actually functions.
Goodson, supra, at 103-04; ] ] 5.
The State Department also came to such conclusions. In testimony early in October 2001
before the Senate Foreign Relations Committee's Subcommittee on Near East and South Asian
Affairs, Assistant Secretary of State for South Asian Affairs Christina Rocca explained that:
[t]wenty-two years of conflict have steadily devastated [Afghanistan], destroyed
its physical and political infrastructure, shattered its institutions, and wrecked its
socio-economic fabric .... The Taliban have shown no desire to provide even the
most rudimentary health, education, and other social services expected of any
government. Instead, they have chosen to devote their resources to waging war
on the Afghan people, and exporting instability to their neighbors.
United States Department of State, International Information Programs, Rocca Blames Taliban
for Humanitarian Disaster in Afghanistan (Oct. 10, 2001), available at
http://www.usinfo.state.gov/regional/nea/sasia/afghan/text/IOlOroca.htm (visited Oct. 19, 200]).
Rather than performing normal government functions, the Taliban militia exhibited the
characteristics of a criminal gang. The United Nations Security Council found that the Taliban
militia extracted massive profits from illegal drug trafficking in Afghanistan and subsidized
24 .
terrorism from those revenues. . .
24S ee U.N. Security Council Resolution 1333 (2000), available at
http://www.yale.edullawweb/avalonlseptlllunsecres1333.htm (fmding that "the Taliban benefits directly from
the cultivation of illicit opium by imposing a tax on its production and indirectly benefits from the processing and
trafficking of such opium, and ... these substantial resources strengthen the Taliban's capacity to harbou terrorists").
The United States Government has amassed substantial evidence that Taliban has condoned and profited from
narco-trafficking on a massive scale, with disastrous effects on neighboring countries. See The Taliban, Terrorism,
and Drug Trade.: Hearing Before the Subconun. on Criminal Justice, Drug Policy and Human Resources of the
House Comm. on Government Reform, 107tb Congo (2001) (testimony of William Bach, Director, Office of Asia,
Africa, Europe, NIS Programs, Bureau of International Narcotics and Law Enforcement Affairs, Department of
State; testimony of Asa Hutchinson, Administrator, Drug Enforcement Administration, U.S. Department of Justice).
"The heroin explosion emanating from Afghanistan is now affecting the politics and economics ofthe entire region.
It is crippling societies, distorting the economics of already fragile states and creating a new narco-elite which "is at
odds with the ever increasing poverty ofthe population." Rashid, supra, at 123; see also Goodson, supra, at 101-03;
Peter Tomsen, Untying the Afghan Knot, 25 WTR Fletcher F. World AfT. 17~ 18 (2001) ("Afghanistan is now the
Third, the Taliban militia was arguably unable to conduct normal foreign relations or to
fulfill its international legal obligations. Indeed, information available to the President might
justify him in finding that the Taliban had become so subject to the domination and control of aI
Qaeda that it could not pursue independent policies with respect to the outside world."
Certainly, publicly known facts demonstrate that the Taliban was unwilling and perhaps unable
to obey its international obligations and to conduct normal diplomatic relations. Thus, the
Taliban has consistently refused to comply with United Nations Security Council Resolutions
1333 (2000) and 1267 (1999), which called on it to surrender Osama bin Laden to justice and to
take other actions to abate terrorism based in Afghanistan.i? Those resolutions also called on all
States to deny permission for aircraft to take off or to land if they were owned or operated by or
for the Taliban, and to freeze funds and other resources owned or controlled by the Taliban. The
Taliban also reportedly refused or was unable to extradite bin Laden at the request of Saudi
Arabia in September, 1998, despite close relations between the Saudi government and itself. As
a result, the Saudi government expelled the Afghan charge d'affairesi' The Taliban's
continuing role in sheltering and supporting those believed to be responsible for the terrorist
attacks of September II, 2001 places it in dear breach of international law, which requires it to
prevent the use of its territory as a launching pad for attacks against another Nation. 28
world's largest producer of opium."). Iran is estimated to have as many as three million drug addicts, largely as a
result of Taliban's involvement in the drug trade. Rashid, supra, at 122,203.
25 See, e.g., "2 U.S. Targets Bound by Fate," The Washington Post at A22 (Nov. 14,2001) ("According to
Thomas Gouttierre, an Afghan expert at the University of Nebraska and a former UN adviser, the so-caJled Afghan
Arabs surrounding bin Laden were much more educated and articulate than the often iJIiterate Taliban and
succeeded in convincing them that they were at the head of a world-wide Islamic renaissance. 'AI Qaeda ended up
hijacking a large part of the Taliban movement,' he said, noting that [Taliban supreme religious leader Mohammed]
Omar and bin Laden were 'very, very tight' by 1998."); "Bin Laden Paid Cash For Taliban," The Washington Post
at Al (Nov. 30, 2001) (reporting claims by former Taliban official ~faJ Qaeda's corruption ofTaliban officials).
26 U.N. Security Council Resolution 1333 "strongly conderrm[ed]" the Taliban for the "sheltering and
training of terrorists and [the] planning of terrorist acts, nand "deplorjed] the fact that the TaIiban continues to
provide a safe haven to Usama bin Laden and to allow him and others associated with him to operate a network of
terrorist training camps from Taliban-controlled territory and to use Afghanistan as a base from which to sponsor
international terrorist operations." U.N. Security Council Resolution 1214,1113 (1998) enjoined the Taliban to stop
providing a sanctuary and training for terrorists. U.N. Security Council Resolution 1267~ , 2 (1999), stated that the
TaJiban's failure to comply with the Council's 1998 demand constituted a threat to the peace. See Sean D. Murphy,
Efforts to Obtain Custody ofOsama Bin Laden, 94 Am. J. Int') L. 366 (2000).
27S ee YossefBodansky, Bin Laden: The Man Who Declared War on America 301-02 (2001).
28S ee Robert F. Turner, International Law and the Use of Force in Response to the World Trade Center
and Pentagon Attacks, available at http://juristJaw.pitt.edulforumnew/34.htm (visited Oct. 25, 2001) ("If (as has
been claimed by the US and UK governments) bin Laden masterminded the attacks on New York and Washington,
Afghanistan is in breach of its slate responsibility to take reasonable measures to prevent its territory from being
used to launch attacks against other states. The United States and its allies thus have a legal right to violate
Afghanistan's territorial integrity to destroy bin Laden and related terrorist targets. If the Taliban elects to join
forces .with bin Laden, it, too, becomes Q lawful target."); see also W. Michael Reisman, International Legal
Responses to Terrorism, 22 Hous. J. Int'l L. 3 t 40-42,51-54 (1999).
Fourth, the Taliban militia was not recognized as the legitimate government of
Afghanistan by the United States or by any member of the international community except
Pakistan. The only two other States that had maintained diplomatic relations with it before the
current conflict began (Saudi Arabia and the United Arab> Emirates) soon severed them. 29
Based on the foregoing, we conclude that a reasonable basis exists for the President 10
find that Afghanistan (even when largely controlJed by the Taliban) failed some, and perhaps all,
of the ordinary tests of statehood. Nor do we think that the recent military successes of the
Northern Alliance change that outcome: the President could find that Afghanistan both was and.
remains statelessr" If the President finds that Afghanistan is presently in a condition of
statelessness, it cannot be considered to remain, at present, a High Contracting Party to the
Geneva Conventions. This conclusion would have two immediate ramifications.
First, common Article 2 -- and thus most of the substance of the Geneva Conventions -would
not apply to the current conflict with the TaJiban, because that provision only applies to
international wars between two State Parties to the Conventions. Second, even common Article
3's basic standards would not apply. This would be so not only because the current conflict is
not a non-international conflict subject to Article 3, see Part I(D) above, but also because
common Article 3 concerns only a non-international conflict that occurs "in the territory ofone of
the High Contracting Parties" (emphasis added). If Afghanistan is no longer a High
Contracting Party, then a non-international conflict within its territory does not fall within the
terms of Article 3. The President could also determine at some future time that conditions in
Afghanistan had changed, that Statehood had been restored, and that Afghanistan was thus in a
position to resume its status as a Party to the Geneva Conventions.
We conc1udeby addressing a point of considerable significance. To say that the specific
provisions of the Geneva and Hague Conventions do not apply in the current conflict with the
Taliban militia as a legal requirement is by no means to say that the principles of the law of
armed conflict cannot be applied 'asa matter of u.s. Government policy. The President as
29See 'it Look at the Taliban," Sept. 30, 2001, available at
http://www.usatoday.comlnews/worldl2001/thetaJiban.htm (visited Oct. 19, 2001). Indeed, Pakistan had been the
only country in the world that maintained an embassy in Kabul; the overwhelming majority of States and the United
Nations recognized exiled President Burhanuddin Rabbani and his government as the country's legal authorities.
See "Taliban tactics move to hostage ploy, " Aug. 8, 2001, available at
http://www.janes.com.regional_news/asiaJ3cific/news/jidljidO10808_1_n.shtml (visited O~t. 19, 2001).
30 We do not think that the recent military successes of the Northern Alliance necessarily mean that
Afghanistan's statehood has been restored, ifonly because the international community, including the United States,
does not regard the Northern AHiance as constituting the government of Afghanistan. United Nations Security
Council Resolution 1378, , ] (2001), available at
http://www.yale.edullawweb/avalonlseptIl/unsecres1378.htm (visited Nov. 19, 2001), expressed "strong
support for the efforts of the Afghan people to establish a new and transitional administration leading to the
formation of a government" (emphasis added); see also id. " 3 (affirming that the United Nations should playa
central role in supporting Afghan efforts to establish a "new and transitional administration leading to the formation
of a new govenunent"). The plain implication of this Resolution, which reflects the views of the United States, is
that Afghanistan after Taliban does not have a government, In any event, the conflict between Afghan factions is
ongoing as we write.
Commander in Chief can determine as a matter of his judgment for the efficient prosecution of
the military campaign that the policy of the United States will be to enforce customary standards
of the law of war against the Taliban and to punish any transgressions against those standards.
Thus, for example, even though the Geneva Convention In, relating to POWs, may not apply,
the United States may deem it a violation of the laws and usages of war for Taliban troops to
torture any American prisoners whom they may happen to seize. The U.S. military thus could
prosecute Taliban militiamen for war crimes for engaging in such conduct." Similarly, any acts
by al Qaeda terrorists either in the United States or abroad that violate the customary laws of war
may be prosecuted before a military commission. See generally Memorandum for Alberto R.
Gonzales, Counsel to the President, from Patrick F. Philbin, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: Legality oj the Use of Military Commissions to Try Terrorists
(Nov. 6, 2001) (the "Military Commissions Memo"). A decision to apply the principles of the
Geneva Conventions or of others laws ofwar as a matter ofpolicy would be fully consistent with
the past practice ofthe United States.
United States practice in post-1949 conflicts reveals several instances in which our
military forces have applied the Geneva Conventions as a matter of policy, without
acknowledging any legal obligation to do so. These cases include the Wars in Korea and
Vietnam and the interventions in Panama and Somalia.
Korea. The Korean War broke .out on June 25, 1950, before any of the major State
parties to the conflict (including the United States) had ratified the Geneva Conventions.
NonetheJess, General Douglas MacArthur, the United Nations Commander in Korea, said that
his forces would comply with the principles of the Geneva Conventions, including those relating
to POWs. MacAnhur stated: "My present instructions are to abide by the humanitarian
principles of the 1949 Geneva Conventions, particularly common Article three. In addition, I
have directed the forces under my command to abide by the detailed provisions of the prisonerof-
war convention, since I have the means at my disposal to assure compliance. with this
convention by an concerned and have fully accredited the JCRe delegates accordingly." Quoted
in Joseph P. Bialke, United Nations Peace Operations: Applicable Norms and ihe Application of
the Law ofArmed Conflict, 50 A.F.L. Rev. 1,63 n.235 (2001).
Viet Nom. The United States through the State Department took the position that the
Geneva Convention 111 "indisputably applies to the armed conflict in Viet Nam," and therefore
that "American military personnel captured in the course ofthat anned conflict are entitled to be
treated as prisoners of war." Entitlement ofAmerican Military Personnel Held by North VietNam
to Treatment as Prisoners oj War Under the Geneva Convention of 1949 Relative to the
Treatment of Prisoners of War7 July 13, ] 966, reprinted in John Norton Moore, Law and the
Indo-China War 635, 639 (1972). We understand from the Defense Department that our
military forces, as a matter of policy, decided at some point in the conflict to accord POW
treatment (but not necessarily POW status) to Viet Cong members, despite the fact that they
31 The President could, of course, also detennine that it will be the- policy of the United States to require its
own troops to adhere "to standards of conduct recognized under customary international Jaw, and could prosecute
offenders for violations. As explained above, the President is not bound to follow these standards by law, but may
direct the armed forces to adhere to them as a matter ofpolicy.
often did not meet the criteria for that status (set forth in Geneva Convention HI, art. 4), e.g., by
not wearing uniforms or any other fixed distinctive signs visible at a distance.
Panama. The United States' intervention in Panama on December 20, 1989 came at the
request and invitation of Panama's legitimately elected President, Guillermo Endara. See United
States v. Noriega, 117 F.3d 1206, 1211 (11 th CiT. 1997), cert. denied, 523 U.S. 1040 (1998). The
United States had never recognized General Manuel Noriega, the commander of the Panamanian
Defense Force, as Panama's legitimate ruler. Thus, in the view of the executive branch, the
conflict was between the Government of Panama assisted by the United States on the one side
and insurgent forces loyal to General Noriega on the other; it was not an international armed
conflict between the United States and Panama, another State. Accordingly, it 'was not, in the
executive's judgment, an international armed conflict governed by common Article 2 of the
Geneva Conventions. See Jan E. Aldykiewicz and Geoffrey S. Com, Authority to Court-Martial
. Non-U.S. Military Personnel for Serious Violations of International Humanitarian Law
Committed During Internal Armed Conflict, 167 Mil. L. Rev. 74, 77 n.6 (2001).32 Nonetheless,
we understand that, as a matter of policy, all persons captured or detained by the United States in
the intervention -- including civilians and members of paramilitary forces as well as members of
the Panamanian Defense Force -- were treated consistently with the Geneva Convention Ill, until
their precise status under that Convention was determined. A 1990 letter to the Attorney
General from the Legal Adviser to the State Department said that U[ilt should be emphasized that
the decision to extend basic prisoner of war protections to such persons was based on. strong
policy considerations, and was not necessarily based on any conclusion that the United States
was obligated to do so as a matter of law." Letter for-the Hon. Richard L. Thornburgh, Attorney
General, from Abraham D. Sofaer, Legal Adviser, State Department at 2 (Jan. 31, 1990).
Interventions in Somalia. Haiti and Bosnia. There was considerable factual uncertainty
whether the United Nations Operation in Somalia in late 1992 and early 1993 rose to the level of
an Harmed conflict" that could be subject to common Article 3 of the Geneva Conventions,
32 In United Stales v. Noriega, 808 F. Supp. 79], 794 (S.D. FJ~. 1992), the district court held that the
United States' intervention in Panama in late 1989 was an international armed conflict under (common) Article 2 of
the Geneva Convention Ill, and that General Noriega was entitled to POW status. To the extent that the holding
assumed that the courts are free to determine whether a conflict is between the United States and another "State"
regardless of the President's view whether the other party is 3 "State" or not, we disagree with it. By assuming the
right to determine that the United States was engaged in an armed conflict with Panama -- rather than with insurgent
forces in rebelJion against the recognized and legitimate Government ofPanama -- the district court impermissibly
usurped the recognition power, a constitutional authority reserved to the President. The power to determine whether
a foreign government is to be accorded recognition, and the related power to determine whether a condition of
statelessness exists in a particular country, are exclusively executive. 'See, e.g., Baker v. Carr, 369 U.S. 186, 212
(1962) ("[R]ecognition of foreign govenunents so strongly defies judicial treatment that without executive
recognition a foreign state has been caned '3 republic of whose existence we know nothing.' . . . Similarly,
recognition ofbeJIigerency abroad is an executive responsibility....") (citation omitted); Kennett v. Chambers, 55
U.S, (]4 How.) 38, 50-51 (1852) ("[Tlhc question whether [the Republic of] Texas [while in rebeJlion against
Mexico] had or had not at that time become an independent state, was a question for that department of our
government exclusively which is charged with our foreign relations. And until the _period when that department
recognized it as an independent state, the judicial tribunals ... were bound to consider ... Texas as a part of the
Mexican territory."); Mingtai Fire & Marine Ins. Co. v. United Parcel Service, 177 F.3d 1142, 1145 (9th Cir.)
("[T)be S_uprerne Court has repeatedly held that the Constitution COITlJ-mts to the Executive branch alone the 'authority
to recognize, and to withdraw recognition from, foreign regimes."), cert. denied, 528.U.S. 951 (1999).
particularly after the United Nations Task Force abandoned its previously neutral role and took
military action against a Somali warlord, General Aideed. Similar questions have arisen in other
peace operations, including those in Haiti and Bosnia. It appears that the U.S. military has
decided, as a matter of policy, to conduct operations in such circumstances as if the Geneva
Conventions applied, regardless of whether there is any legal requirement to do so. The U.S.
Army Operational Law Handbook, after noting that "[i]n peace operations, such as those in
Somalia, Haiti, and Bosnia, the question frequently arises whether the [law of war] legally
applies," states that it is "the position of the US, UN and NATO that their forces will apply'the
'principles and spirit' ofthe [law ofwar] in these operations." Quoted in Bialke, supra, at 56.
c. Suspension orIne,Geneva Conventions as to Afghanistan
Even if the President were not to find that Afghanistan is a failed State, the President
could still temporarily suspend the Geneva Conventions during the current military action. As a
constitutional matter, the President has the power to suspend performance of some or all of the
obligations of the United States under the Conventions towards Afghanistan. Such a decision
could be based on presidential findings that Afghanistan lacks the capacity to fulfill its treaty
obligations or (if supported by the facts) on findings that Afghanistan is in material breach of its
As the Nation's representative in foreign affairs, the President has a variety of
constitutional powers with respect to treaties, including the powersto suspend them, withhold
performance of them, contravene them or terminate them. The treaty power is fundamentally an
executive power established in Article II of the Constitution, and therefore power over treaty
matters after advice and consent by the Senate are within the President's plenary authority. We
have recently treated these questions in some detail, and rely upon that advice here. See
Memorandum for John Bellinger, III, Senior Associate Counsel and Legal Adviser to the
National Security Council, from John C. Yoo, Deputy Assistant Attorney General, Office of
Legal Counsel, and Robert J. Delahunty, Special Counsel, Office" of Legal Counsel, Re:
Authority ofthe President to Suspend Certain Provisions of the ADM Treaty (Nov. 15, 2001); "
see also Memorandum for William Howard Taft, IV, Legal Adviser, Department of State, from
John Y00, Deputy Assistant Attorney General, Office of Legal Counsel, Re: President s
. Constitutional Authority to Withdraw Treaties/rom the Senate (Aug. 24, 2001).
The courts have often acknowledged the President's constitutional powers with respect to
treaties. Thus, it has .long been accepted that the President may determine whether a treaty has
lapsed because a foreign State has gained or lost its independence, or because it has undergone
other changes in sovereignty. See Kennett, 55 U.S. at 47-48, 51; Terlinden, 184 U.S. at 288;
Saroop, l09"F.3d at 171 (collecting cases).33 Nonperformance of a particular treaty obligation
33 Alexander Hamilton argued in 1793 that the revolution in France had triggered the power (indeed, the
duty) of the President to determine whether the pre-existing treaty of alliance with the King of France remained in
effect. The"President's constitutional powers, he said, "include[] that of judging, in the case of a Revolution of
Government in a foreign Country, whether the new rulers are competent organs ofthe National Will and ought to be
recognised or not: And where a treaty antecedently exists between the UStates and such nation that right involves "
the power of giving operation or not to such treaty." Alexander Hamilton, Pacificus No.1 (1793), reprinted in 15
The Papers ofAlexander Hamilton 33,41 (Harold C. Syrett et aI. eds, 1969).
may, in the President's judgment, justify withholding performance of one of the United States'
treaty obligations, or contravening the treaty. See Taylor v. Morton, 23 F. Cas. 784, 787 (C.C.D.
Mass. 1855) (No. 13,799) (Curtis, Circuit Justice), aff'd, 67 U.S. (2 Black) 481 (1862). Further,
the President may declare a treaty suspended for several reasons. For example, he may
determine that lithe conditions essential to [the treaty'sJ continued effectiveness no longer
pertain." See International Load Line Convention, 40 Op. Att'y Gen. 119,124 (941).34 The
President may also determine that a material breach of a treaty by a foreign government has
rendered a treaty not merely voidable, but void, as to that government. See, e.g., Charlton v.
Kelly, 229 U.S. 447, 473 (1913); Escobedo v. United States, 623 F.2d 1098, 1106 (51h Cir.), cert.
denied, 449 U.S. 1036 (1980).
The President could justifiably exercise his constitutional authority over treaties by
temporarily suspending the operation of the Geneva Conventions as to Afghanistan. In
particular, the President could determine that under the Taliban militia, Afghanistan committed
grave violations of international law and maintained close relationships with international
terrorist organizations such as al Qaeda, which have attacked wholly civilian targets by surprise
attack. As a result, the President could conclude, Afghanistan violated basic humanitarian duties
under the Geneva Conventions, and other norms of international law, that nonperformance of
such basic duties demonstrates. that Afghanistan cannot be trusted to perform its commitments
under the Conventions during the current conflict, and that without some assurance of future
performance of basic Convention obligations, the conditions for fhe Conventions' continuing
effectiveness as to Afghanistan no longer pertain." After the conflict, the President could
restore relations under the Geneva Conventions once Afghanistan had in place a government that
was willing and able to execute the country's treaty obligations. Furthermore, if evidence of
other material breaches of the Conventions by Afghanistan existed, that evidence could also
furnish a basis for the President to decide to suspend performance of the United States'
Convention obligations. A Presidential decision -to suspend the Geneva Conventions would not,
of course, constitute a "denunciation" of the Conventions, for which procedures are prescribed in
the Conventions. See, e.g., Geneva Convention III; art. 142. 36 The President' need not suspend
the Conventions in their entirety, but could choose to suspend them only in part"
34 Changed conditions have provided a basis on which Presidents have suspended treaties in the past. For
example, in 1939, President Franklin Roosevelt suspended the operation of the London Naval Treaty ofl936. "The
war in Europe had caused several contracting parties to suspend the treaty, for the obvious reason that it was
impossible to limit naval armaments. The notice oftermination was therefore grounded on changed circumstances,"
David Gray Adler, The Constitution and the Termination a/Treaties, 187 (1986).
35 It is possible for the President to suspend a multilateral treaty as to one but not aJl of the parties to the
treaty. In ] 986, the United States suspended the performance of its obligations under the Security Treaty (ANZUS
Pact), T.I.A.s. 2493, 3 U.S.T. 3420, entered into force April 29, 1952, as to New Zealand but not as to Australia.
See Marian Nash (Leich), I Cumulative Digest a/United States Practice in International Law 1981-1988. at 1279·
81. .
3~ The suspension of a treaty is distinct from the denunciation. or termination of one. Suspension is
generally a milder measure than termination, often being partial, temporary, or contingent upon circumstances that
can be altered by the actions of the parties to the treaty. Moreover, at least in the United States, suspension of a
treaty can be reversed by unilateral executive action, whereas termination, which annuls a treaty, and which is
therefore more disruptive of international relationships, would require Senate consent to a new treaty in order to be
undone. See Oliver J. Lissitzyn, Treaties and Changed Circumstances (Rebus Sic Stantibus), 61 Am. J. Int'I L.
Although the United States has never, to our knowledge, suspended any provision of the
Geneva Conventions, it is significant that on at least two occasions since 1949 -- the Korean War
and the Persian Gulf War -- its practice has deviated from the clear requirements of Article 118
of Geneva Convention TIl Relative to the Treatment of Prisoners of War. That Article prescribes
the mandatory repatriation ofPOWs after the cessation of a covered conflict." Although on both
occasions the POWs themselves sought to avoid repatriation; Geneva Convention III provides
that a POW may "in no circumstances renounce in part or in entirety" the right to repatriation.
Art. 7. Moreover, the negotiating history of the Convention reveals that a proposal to make POW
repatriation voluntary was considered and rejected, in large part on the ground that it would work
to the detriment of the POWS.39 Consequently, withholding of repatriation, even with the
consent ofthe POWs, represented a deviation from the Convention's strict norms.
Korea. The Korean War broke out on June 25, 1950, before any of the major State
parties to the conflict (including the United States) had ratified the Geneva Conventions.
Nonetheless, the principle of repatriation of POWs had long been rooted in treaty and customary
international law, including Article 20 of the Annex to Hague Convention IV, which states that
"[ajfter the conclusion of peace, the repatriation of prisoners of war shall be carried out as
quickly as possible." See generally 3 Charles Cheney Hyde, International Law Chiefly as
Interpreted and Applied by the United States, ~ 674 at 1858-59 (2d ed. 1945)_ Large numbers of
Chinese and North Korean POWs held by the United Nations did not wish to be repatriated,
however, and special provisions for them (and for a small number of United Nations POWs in
Communist hands) were made under the Armistice of July 27, 1953. "To supervise the
895, 916 (1967) ("It is difficult to see how a right of suspension would present greater dangers than a right of
termination. "),
37 In general, the partial suspension of the provisions of a treaty (as distinct from both termination and
complete suspension) is recognized as permissible under international Jaw. Article 60 of the Vierma Convention
explicitly permits the suspension of a treaty "in whole or in part. If "[Ujnder both treaty law and non-forcible reprisal
law as a basis for responsive suspension it is clear that suspension may be only partial and need not suspend or
terminate an agreement as a whole, in contrast, for example, with treaty withdrawal clauses." John Norton Moore,
Enhancing Compliance With International Law: A Neglected Remedy, 39 Va. 1. lnt') L. 881,932 (1999). Although
suspension ofparticular treaty.provisions is recognized both in State practice and international law, we are not aware
of any precedent for suspending a treaty as to some, but not others; of the persons otherwise protected by it. Thus,
we can see no basis for suggesting that the President might suspend the Geneva Conventions as to the TaJiban
leadership, but not as to its rank and file members. However, tbe President could achieve the same outcome by
suspending the Conventions, ordering the U.S. military to follow them purely as a matter of policy, and excepting
the Taliban leadership from the coverage of this policy.
38 Article I 18 states in relevant part:
Prisoners of war shan be released and repatriated without delay after the cessation of active
In the absence of stipulations to the above effect in any agreement concluded between the Parties
to the conflict with a view to the cessation ofhostilities, or failing any such agreement, each of the
Detaining Powers shall itself establish and execute without delay a plan of repatriation in
conformity the principle laid down in the foregoing paragraph. '
39 See Howard S. Levie, The Korean Armistice Agreement andIts Aftermath, 4 J Naval L. Rev. 115, 12527(
repatriation, the armistice created a Neutral Nations Repatriation Commission, composed of
representatives from Sweden, Switzerland, Poland, Czechoslovakia, and India. Within sixty
days of signing the Armistice, prisoners who desired repatriation were to be directly repatriated
in groups to the side to which they belonged at the time of their capture. Those prisoners not so
repatriated were to be released to the Neutral Nations Repatriation Commission ... for further
disposition." David M. Morriss, From War to Peace: A Study of Cease-Fire Agreements and
the Evolving Role of the United Nations, 36 Va. J. Int'l L. 801, 883 (1996). Altogether
approximately 23,000 POWs refused repatriation. The majority (not quite 22,000) eventually
went to Taiwan. [d. at 885.
The Persian Gulf War. At the cessation of hostilities in the Persian Gulf War, some
13,418 Iraqi POWs held by Allied forces were unwilling to be repatriated for fear of suffering
.punishment from their government for having surrendered. Notwithstanding the repatriation
mandate of Geneva Convention III, the United States and its Allies executed an agreement with
Iraq providing for only voluntary repatriation through a program administered by the
International Committee ofthe Red Cross. See id .at 931 & n.633.
D. Suspension Under International Law
Although the President has the constitutional authority to determine either that
Afghanistan is a failed State or that the Geneva Conventions should be suspended under the
present circumstances, there remains the distinct question whether such Presidential actions
would be valid as a matter of international law. 4o We emphasize that the resolution of the
question, however, has no bearing on the President's constitutional powers - or on the
application of the WCA. Rather, these issues are worth consideration as a means ofjustifying
any suspension decision by the President in the world of international politics. While a close
question, we believe that the better view is that, in certain circumstances, countries can suspend
the Geneva Conventions consistently with intemationallaw.
International law has long recognized that the material breach of a treaty can be grounds
for the party injured by the breach to terminate or withdraw from the treaty. See Legal
Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) Notwithstanding Security Council Resolution 276# 1971 I.e.J. 16, 47 1 98 (Advisory
Opinion June 21, 1971) (holding it to be a "general principle of Jaw that a right oftennination on
account of breach must be presumed to exist in respect of all treaties, except as regards
provisions relating to the protection of the human person contained in treaties of a humanitarian
character. . .. The silence of a treaty as to the existence of such a right cannot be interpreted as
implying the exclusion of a right which has its source outside of the treaty, in genera]
international law[.]"). Under customary international law, the general rule is that breach of a
multilateral treaty by a State Party justifies the suspension of that treaty with regard to that State.
"A material breach of a multilateral treaty by one of the parties entitles ... [a] party specially
affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole
40 In general, of course, a decision by a State not to discharge its treaty obligations, even when effective as
a matter ofdomestic Jaw, does not necessarily relieve it ofpossible international liability for non-performance. See
generally Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934).
or in part in the relations between itself and the defaulting State." Vienna Convention art.
60(2)(b). Assuming that Afghanistan could be found to be in material breach for having violated
"a provision essential to the accompJislunent of the object or purpose of the [Geneva
Conventions]," suspension of the Conventions would (thus far) be justified. Id. art. 60(3).
We note, however, that these general rules authorizing suspension "do not apply to
provisions relating to the protection of the human person contained in treaties of a humanitarian
character, in particular to provisions prohibiting any fonn of reprisals against persons protected
by such treaties." ld. art. 60(5).41 Although the United States is not a party to the Vienna
Convention, some lower courts have said that the Convention embodies the customary
international law of treaties, see Fujitsu Ltd. v. Federal Express Corp., 247 F.3d 423,' 433 (2d
Cir.), cert. denied, 122 S. Ct. 206 (2001), and the State Department has at various times taken the
same view. 42 The Geneva Conventions must be regarded as "treaties of a humanitarian
character," many of whose provisions "relat[e] to the protection of the human person.1I43
Arguably, therefore, a Presidential determination that the Geneva Conventions were inoperative
as to .Afghanistan or a decision to suspend them, might put the United States in breach of
customary international law.
In addition, the Geneva Conventions could themselves be read to preclude suspension.
Common Article I pledges the High Contracting Parties lito respect and to ensure respect for the
present Convention in all circumstances" (emphasis added). Some commentators argue that this
provision should be read to bar any State party from refusing to enforce their provisions, no
matter the conduct of its adversaries. In other words, the duty of performance is absolute and
does not depend upon reciprocal performance by other State parties. See, e.g., Draper, The Red
Cross Conventions, supra, at 8; see also Military and Paramilitary Activities In and Against
Nicaragua (Nicaragua v. United States), 76 I.L.R. at 448, 11 220. Under this approach, the
substantive terms of the Geneva Conventions could never be suspended, and thus any violation
would always be illegal under international law.
This' understanding of the Vienna and Geneva Conventions cannot be correct. There is
no textual provision in the Geneva Conventions that clearly prohibits temporary suspension. The
drafters included a provision that appears to preclude State parties from agreeing to absolve each
other of violations. See, e.g., Geneva Convention III, art. 13]. They also included careful
41 The Vienna Convention seems to prohibit or restrict the suspension of humanitarian treaties if the sole
ground for suspension is material breach. It does not squarely address the case in which suspension is based, not on
particular breaches by a party, but by the party's disappearance as a State or on its incapacity to perform its treaty
obligations. .
42 See Moore, supra n.37, at 891-92 (quoting 1971 statement by Secretary ofState William P. Rogers and
]986 testimony by Deputy Legal Adviser Mary V. Mochary).
43 See Sir Ian Sinclair, The Vienna Convention on the Law ofTreaties 191 (2d ed. ]984) (explaining intent
and scope of reference to "humanitarian" treaties). Indeed, when the drafters of the Vienna Convention added
paragraph 5 to article 60, the Geneva Conventions were specifically mentioned as coming within it. See Harris,
supra n.19, at 797.
procedures for the termination of the agreements by individual State parties, including a
provision that requires delay of a termination of a treaty, if that termination were to occur during
a conflict, until the end of the conflict. See, e.g., id., art. 142. Yet, at the same time, the drafters
of the Conventions did not address suspension at all, even though it has been a possible option
since at least the eighteenth century." Applying the canon of interpretation expressio unius est
exclusio alterius, that the inclusion of one thing implies the exclusion of the other, we should
presume that the State parties did not intend to preclude suspension. Indeed, if the drafters and
ratifiers of the Geneva Conventions believed the treaties could not be suspended, while allowing
for withdrawal and denunciation, they could have said so explicitly and easily in the text.
The text of the Conventions also makes it implausible to claim that all obligations
imposed by the Geneva Conventions are absolute and that non-performance is never excusable.
To begin with, the Conventions themselves distinguish "grave" breaches from others. They
further provide that "[n]o High Contracting Party shall be allowed to absolve itself ... of any
liability incurred by itself ... in respect of [grave] breaches." Geneva Convention IV, art. 148.
If aU of the obligations imposed by the Conventions were absolute and unqualified, it would
serve little purpose to distinguish "grave" breaches from others, or to provide explicitly that no
party could absolve itself from liability for grave breaches. Furthermore, although specific
provisions of the Conventions rule out "reprisals" of particular kinds," they do not rule out
reprisals as such. Thus, Article 13 of Geneva Convention III, while defining certain misconduct
with respect to prisoners of war as constituting a "serious breach" of the Convention, also states
categorically that "[m]easures of reprisal against prisoners of war are prohibited.n (emphasis
added). Similarly, Article 60(5) of the Vienna Convention states that the usual rules permitting
treaty suspension in some instances lido not apply to provisions relating to the protection of the
human person contained in treaties of a humanitarian character, in particular to provisions
prohibiting any form of reprisals against persons protected by such treaties" (emphasis added).
That provision seems to be an implicit prohibition only of a particular class of reprisals, not of an
reprisals. Accordingly, it appears to be permissible, as a matter both of treaty Jaw and of
customary international law, to suspend performance of Geneva Convention obligations on a
temporary basis. It also appears permissible to engage in reprisals in response to material
breaches by an enemy, provided that the reprisals do not give rise to "gr av e l! breaches or to
reprisals against protected persons.
Finally, a blanket non-suspension rule makes little sense as a matter of international law
and politics. If there were such a rule, international law would leave an injured party effectively
44 See Sinclair, supra n.43, at 192.
4S u.s. Army, The Law ofLand Warfare, Field Manual No. 27-/0 (July 18, 1956), (the "FM 27-10"),
defines "reprisals" as "acts ofretaliation in the form of conduct which would otherwise be unlawful, resorted to by
one belligerent against enemy personnel or property for acts of warfare conunitted by the other belligerent in
violation of the Jaw of war, for the purpose of enforcing future compliance with the recognized rules of civilized
warfare. For example, the employment by a belJigerent ofa weapon the use of which is normally precluded by the .
law of war would constitute a Jawful reprisal for intentional mistreatment ofprisoners of war held by the enemy.Jt
Id., ch. 8, 11 497(a). In general, international Jaw disfavors and discourages reprisals. See id. 1f 497(d). ("Reprisals
are never adopted merely for revenge, but only as an unavoidable last resort to induce the enemy to desist from
unlawful practices.") They are permitted, however, in certain specific circumstances.
remediless if its adversaries committed material breaches of the Geneva Conventions. Apart
from its unfairness, that result would reward and encourage non-compliance with the
Conventions. True, the Conventions appear to contemplate that enforcement will be promoted
by voluntary action of the parties, see, e.g., the Geneva Convention HI, art. 8; Geneva
Convention IV, art. 9. Furthermore, the Conventions provide for intervention by "the
International Committee of the Red Cross or any other impartial humanitarian organization ...
subject to the consent of the Parties to the conflict concerned." Geneva Convention III, art. 9;
Geneva Convention IV, art. 10. But the effectiveness of these provisions depends on the good
win of the very party assumed to be committing material breaches, or on its sensitivity to
international opinion. Likewise, the provision authorizing an impartial investigation of alleged
violations, see, e.g., Geneva .Convention IV, art. 149, also hinges on the willingness of a
breaching party to permit the. investigation and to abide by its result. Other conceivable
remedies, such as the imposition of an embargo by the United Nations on the breaching party,
may also be inefficacious in particular circumstances. If, for example, Afghanistan were bound
by Geneva Convention III to provide certain treatment to United States prisoners of war but in
fact materially breached such duties, a United Nations embargomight have little effect on its
behavior. Finally, offenders undoubtedly face a risk of trial ·and punishment before national or
international courts after the conflict is over. Yet that form of relief presupposes that the
offenders will be subject to capture at the end of the conflict - which may well depend on
whether or not they have been defeated. Reliance on post-conflict trials, as well as being
uncertain, defers relief for the duration of the conflict. Without a power to suspend, therefore,
parties to the Geneva Conventions would only be left with these meager tools to remedy
widespread violation ofthe Conventions by others.
Thus, even if one were to believe that intemational Iawset out fixed and binding rules
concerning the power of suspension, the President could make good faith arguments under the
Geneva Conventions itself, the Vienna Convention on Treaties, and customary international law
in favor of suspending the Geneva Conventions as applied to the Taliban militia in the current
war in Afghanistan; Again, however, we emphasize that this discussion of international law is in
no way relevant to the question of the President's power under our Constitution to suspend or
even terminate the Geneva Conventions.
IV. The Customary International Laws ofWar
Parts I-III of this memorandum have addressed the issue whether the central treaties and
federal law concerning the laws of armed conflict - the Hague Convention N, the Geneva
Conventions, and the WCA - apply to the current military operations in Afghanistan. Having
concluded that these laws do not restrict military operations against al Qaeda or the Taliban
militia, we tum to your question concerning the effect, if any, of customary international law.
Some may take the view tbat even if the Hague Convention IV and the Geneva Conventions, by
their terms, do not govern the conflict in Afghanistan, the substance of these agreements has
received such universal approval that it has risen to the status of customary international law.
Regardless of its substance, however, customary international law cannot bind the executive
branch under the Constitution because it is not federal law. This is a view that this Office has
expressed before, see Authority ofthe Federal Bureau ofInvestigation to Override International
Law in Extraterritorial Law Enforcement Activities, 13 Op. O.L.C. 163 (1989), and is one
consistent with the views of the federal courts, see, e.g., United States v. Alvarez-Machain, 504
U.S. 655 (1992), and with executive branch arguments in the courts, see, id. at 669-70;
Committee of United States Citizens Living in Nicaragua v. Reagan, 859 F.2d 929,935-36 (D.C.
Cir. 1988); Garcia-Mir v. Meese, 788 F.2d 1446, 1453-55 (11 th Cir.), cert. denied, 479 U.S. 889
(1986). As a result, any customary international law of armed conflict in no way binds, as a
legal matter, the President or the operation of the U.S. Armed Forces.
A.Is Customary Intern at ionaJ Law Federal Law?
Under the view promoted by many international law academics, any presidential
violation of customary international law is presumptively unconstitutional." These scholars
argue that customary international law is federal law, and that the President's Article II duty
under the Take Care Clause requires him to execute customary international law as well as
statutes lawfully enacted under the Constitution. A President may not violate customary
international law, therefore, just 3S he cannot violate a statute, unless he believes it to be
unconstitutional. Relying upon cases such as The Paquete Habana, in which the Supreme Court
observed that "international law is part of our law," 175.U.S. 677, 700 (1900), this position often
claims that the federal judiciary has the authority to invalidate executive action that runs counter
. . I 1 47 to customary mternationa aw.
This view of customary international law is seriously mistaken. The constitutional text
nowhere brackets presidential or federal power within the confines of intemationallaw. When
the Supremacy Clause discusses the sources of federal law , it enumerates only "this Constitution,
and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States." U.S. Const. art. VI.
International law is nowhere mentioned in the Constitution as an independent source of federal
law or as a constraint on the political branches of government. Indeed, if it were, there would
have been no need to grant to Congress the power to "define and punish ... Offenses against the
46 See, e.g., Michael J. Glennon, Raising the Paquete Habana: Is Violation of Customary International
Law by the Executive Unconstitutionati, 80 Nw. U. L. REv. 321,325 (1985); Louis Henkin, International Law As
Law in the United States, 82 MICH. L. REv. 1555, 1567 (1984); Jules Lobel, The Limits ofConstitutional Power:
Conflicts Between Foreign Policy and International Law, 71 VA. L. REv. 1071, 1179 (1985); see also Jonathan R.
Charney, Agora: May the President Violate Customary International Lawt, 80 AM. J. INTL L. 913 (1986).
47 Recently, the status of customary international law within the federal legal system has been the subject
ofsustained debate with legal academia. The legitimacy of incorporating customary international law as federal law
has been subjected in these exchanges to crippling doubts. See Curtis A. Bradley & Jack L. Goldsmith, Customary
International Law As Federal Common Law: A Critique of the Modern Position, 110 Harv. L. Rev. 815, 817
(1997); see also Phillip R. Trimble, A Revisionist View. of Customary International Law, 33 UCLA L. Rev. 665,
672-673 (1986); Arthur M. Weisburd, The Executive Branch and International Law, 41 Vand. L. Rev. 1205, 1269
(1988). These claims have not gone unchallenged. Harold H. Koh, Is International Law Really State Law?, 1 II
Harv. L. Rev. 1824, 1827 (1998); Gerald L. Neuman, Sense and Nonsense About Customary International Law: A
Response to Professors Bradley and Goldsmith, 66 Fordham L. Rev. 371, 371 (1997); Beth Stephens, The Law of
Our Land: Customary International Law As Federal Law After Erie, 66 Fordham L. Rev. 393, 396-97 (1997).
Bradley and Goldsmith have responded to their critics several times. See Curtis 1\. Bradley & Jack 1. Goldsmith, .
Federal Courts and the Incorporation ofInternational Law, III Harv. L. Rev. 22~O (1998); Curtis A. Bradley &
Jack L. Goldsmith, The Current Illegitimacy of International HumanRights Litigation, 66' Fordham L. Rev. 319,
330 (1997).
Law of Nations." U.S. Const. art. I, § 8. It is also clear that the original understanding of the
Framers was that "Laws of the United States" did not include the law of nations, as international
Jaw was called in the late eighteenth century. In explaining the jurisdiction of the Article III
courts to cases arising "under the Constitution and the Laws of the United States," for example,
Alexander Hamilton did not include the law ofnations as a source ofjurisdiction. The Federalist
No. 80, at 447-49 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Rather, Hamilton pointed
out, claims involving the laws of nations would arise in either diversity cases or maritime cases,
id. at 444-46, which by definition do not involve "the Laws of the United States." Little evidence
exists that those who attended the Philadelphia Convention in the summer of 1787 or the state
ratifying conventions believed that federal law would have included customary international Jaw,
but rather that the law of nations was part of a general common law that was not true federal
Indeed, allowing customary international law to rise to the level of federal law would
create severe distortions in the structure of the Constitution. Incorporation of customary
international law directly into federal law would bypass the delicate procedures established by
the Constitution for amending the Constitution or for enacting legislation. Cf INS v. Chadha,
462 U.S. 919 (1983) (invalidating legislative veto for failure to undergo bicameralism and
presentment as required by Article I, Section 8 for all legislation). Customary international law
is not approved by two-thirds of Congress and three-quarters of the state legislatures, it has not
been passed by both houses of Congress and signed by the President, nor is it made by the
President with the advice and consent of two-thirds of the Senate. In other words, customary
. international Jaw has not undergone the difficult hurdles that stand before enactment of
constitutional amendments, statutes, or treaties. As such, it can have no legal effect on the
government or on American citizens because it is not law.49 Even the inclusion of treaties in the
Supremacy Clause does not render treaties automatically self-executing in federal court, not to
mention self-executing against the executive branch. See, e.g., Foster v. Neilson, 27 U.S. (2 Pet.)
253,314 (1829). If even treaties that have undergone presidential signature and senatorial advice
and consent can have no binding legal effect in the United States, then it certainly must be the
case that a source of rules that never undergoes any process established by our Constitution
cannot be law. so
48 See, e.g., Stewart Jay, The Status ofthe Law ofNations in Early American Law, 42 Vand. L. Rev. 819,
830-37 (1989); Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. ]245,
]306-J2 (1996); Curtis A. Bradley & Jack L. Goldsmith, The Current Illegitimacy ofInternational Human Rights
Litigation, 66 Fordham L. Rev. 319, 333-36 (1997).
49. In fact, allowing customary international law to bear the force of federal law would create significant
problems under the Appointments Clause and the non-delegation doctrine, as it would be law made completely
outside the American legal system through a process of international practice, rather than either the legislature or
officers of the United States authorized to do so.
so See John C. Yon, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original
Understanding, 99 Colum. L. Rev. 1955 (1999) (non-self-execution of treaties justified by the original
understanding); John C. Yoo, Treaties and Public Lawmaking: A Textualand Structural Defense of Non-Self
Execution, 99 Colum, L. Rev. 2218 ( 1999) (demonstrating that constitutional text and structure require
implementation of treaty obligations by federal statute).
It is well accepted that the political branches have ample authority to override customary
international law within their respective spheres of authority. This has been recognized by the
Supreme Court since the earliest days of the Republic. In The Schooner Exchange v. McFaddon,
11 U.S. (7 Cranch) 116 (1812), for example, Chief Justice Marshall applied customary
international law to the seizure of a French warship only because the United States govenunent
had not chosen a different rule.
It seems then to the Court, to be a principle of public [international] law, that .
national ships of war, entering the port of a friendly power open for their
reception, are to be considered as exempted.by the consent of that power from its
jurisdiction. Without doubt, the sovereign of the place is capable of destroying
this implication. He may claim .and exercise jurisdiction, either by employing .
force, or by subjecting such vessels to the ordinary tribunals.
Id. at 145-46 (emphasis added). In Brown v. United States, 12 U.S. (8 Cranch) 110 (1814), Chief
Justice Marshall again stated that customary international law "is a guide which the sovereign
follows or abandons at his will. The rule, like other precepts ofmorality, of humanity, and even
of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded
by him without obloquy, yet it may be disregarded." ld. at "128. In twenty-first century words,
overriding customary international law may prove to be a bad idea, or be subject to criticism, but
there is no doubt that the government has the power to do it.
Indeed, proponents of the notion that customary international Jaw is federal law can find
little support in either history or Supreme Court case law. It is true that in some contexts, mostly
involving maritime, insurance, and commercial law, the federal courts in the nineteenth century
looked to customary international law as a guide." Upon closer examination of these cases,
however, it is clear that customary international law bad the status only of the general federal
common law that was applied in federal diversity cases under Swift v. Tyson, 41 U.S. (16 Pet.) 1
(I 842). As such, it was not considered true federal law under the Supremacy Clause; it did not
support Article III "arising under" jurisdiction; it did not pre-empt inconsistent state law; and it
did not bind the executive branch. Indeed, even during this period, the Supreme Court
acknowledged that the laws of war did not qualify as true federal law and could not therefore
serve as the basis for federal subject matter jurisdiction. In New York Life Ins. Co. v. Hendren,
92 U.S. 286, for example, the Supreme Court declared that it had no jurisdiction to review "the
general laws of war, as recognized by the law of nations applicable to this case," because such
laws do not involve "the constitution, laws, treaties, or executive proclamations of the United
States." Id. at 286-87. The spurious nature of this type of law led the Supreme Court in the
famous case of Erie R.R.· Co. v. Tompkins, 304 U.S. 64, 78 (1938), to eliminate general federal
CODUnon law.
Even the case most relied upon by proponents of customary international law's status as
federal law, The Paquete Habana, itself acknowledges that customary international law is
51 See. e.g., Oliver Am. Trading CD. v. Mexico, 264 U.S. 440, 442-43 (1924); Huntington v. Attrill, 146
U,S. 657,683 (1892); New York Life Ins. Co. v. Hendren, 92 U.S. 286,286-87 (1875).
subject to override by the action of the political branches. The Paquete Habana involved the
question whether U.S. armed vessels in wartime could capture certain fishing vessels belonging
to enemy nationals and sell them as prize. In that case, the Court applied an international law
rule, and did indeed say that "international law is part of our law." ld. at 700. But Justice Gray
then continued, "where there is no treaty and no controlling executive or legislative act or
judicial decision, resort must be had to the customs and usages ofcivilized nations." ld. In other
words, while it was willing to apply customary international law as general federal common law
(this was the era of Swift v. Tyson), the Court also readily acknowledged that the political
branches and even the federal judiciary could override it at any time. No Supreme Court
decision in modem times has challenged that view.52 Thus, under clear Supreme Court
precedent, any presidential decision in the current conflict concerning the conduct of the U.S.
Armed Forces would constitute a "controlling" executive act that would immediately and
completely override any customary international law norms.
Constitutional text and Supreme Court decisions aside, allowing the federal courts to rely
upon international law to restrict the President's discretion to conduct war would raise deep
structural problems. First, if customary international law is indeed federal law, then it must
receive all of the benefits of the Supremacy Clause. Therefore, customary international law
would not only bind the President, but it also would pre-empt state law and even supersede
inconsistent federal statutes and treaties that were enacted before the rule of customary
international law came into being. This has never happened. Indeed, giving customary
intemationallaw this power not only runs counter to the Supreme Court cases described above,
but would have the effect of importing a body of law to restrain the three branches or-American
govermnent that never underwent any approval by our democratic political process. If
customary international law does not have these effects, as the constitutional text, practice and
most sensible readings of the Constitution indicate, then it cannot be true federal Jaw under the
Supremacy Clause. As non-federal law, then, customary international law cannot bind the
52 Two lines of cases are often cited .for the proposition that the Supreme Court has found customary
intemationallaw to be federal Jaw. The first, which derives from Murray v. Schooner Charming Betsy, 6 U.S. (2
Cranch) 64 (1804). The "Charming Betsy» rule, as it is sometimes known, is a rule of construction that a statute
should be construed when possible so as not to conflict with intemational law. This rule, however, does not apply
intemationallaw ofits own force, but instead can be seen as measure ofjudiciaJ restraint: that violating intemational
law is a decision for the political branches to make, and that if they wish to do. so, they should state clearly their
intentions. The second, Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, applied the "act of state" doctrine,
which generally precludes courts from examining the validity of the decisions of foreign governments taken on their
own soil, as federal COJIUIlQD law to a suit over expropriations by the Cuban government. As with Charming Betsy,
however, the Court developed this rule as one of judicial self-restraint to preserve the flexibility of the political
branches to decide bow to conduct foreign policy.
Some supporters of customary international Jaw as federal law reJy on a third line of cases, beginning with
Fikirtiga v. Peiia-Irala, 630 F.2d 876 (2d Cir. 1980). In Fildrtiga, the Second Circuit read the federal Alien Tort
Statute, 28 U.S.C. §1350 (1994), to allow a tort suit in federal court against the fanner official of a foreign
government for violating norms of international human rights law, namely torture. Incorporation of customary
intemationallaw via the Alien Tort Statute, while accepted by several circuit courts, has never received the blessings
oftbe Supreme Court and has been sharply criticized by some circuits, see, e.g., Tel-Oren v. Libyan Arab Republic,
726 F.2d 774, 808-10 (D.C. Cir.l984) (Bork, J.; concurring), cert. .denied, 470 U.S. 1003 (1985), as well as by
academics, see Curtis A. Bradley & Jack. L. Goldsmith; The Current Illegitimacy of International Human Rights
Litigation, 66 Fordham L. Rev. 319,330 (1997).
President or the executive branch, in any legally meaningful way, in its conduct of the war in
Second, relying upon customary international law here would undermine the President's
control over foreign relations and his Commander in Chief authority. As we have noted, the
President under the Constitution is given plenary authority over the conduct of the Nation's
foreign relations and over the use of the military. Importing customary international law notions
concerning armed conflict would represent a direct infringement on the President's discretion as
the Commander in Chief and Chief Executive to determine how best to conduct the Nation's
military affairs. Presidents and courts have agreed that the President enjoys the fullest discretion
permitted by the Constitution in commanding troops in the field. See Memorandum for Timothy
E. Flanigan, Deputy Counsel to the President, from John C. Yoo, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: The President's Constitutional Authority to Conduct
Military Operations Against Terrorists and Nations Supporting Them (Sept. 25, 2001)
(reviewing authorities). It is difficult to see what legaJ authority under our constitutional system
would permit customary internationallaw to restrict the exercise of the President's plenary power
in this area, which is granted to him directly by the Constitution. Further, reading customary
international law to be federal law would improperly inhibit the President's role as the
representative of the Nation in its foreign affairs.r' Customary law is not static; it evolves
through a dynamic process of State custom and practice. "States necessarily must have the
authority to contravene international norms, however, for it is the process of changing state
practice that allows customary international law to evolve." 13 Op. a.L.C. at 170. As we
observed in 1989, "[ijfthe United States is to participate in the evolution ofintemationaI law, the
Executive must have the power to act inconsistently with intemationallaw where necessary." Id.
The power to override or ignore customary international law, even the law applying to armed
conflict, is "an integral part of the President's foreign affairs power." Id. at 171. .
Third, if customary international law is truly federal law, it presumably must be
enforceable by the federal courts. Allowing international law to interfere with the President's
war power in this way, however, would expand the federal judiciary's authority into areas where
it has little competence, where the Constitution does not textually call for its intervention, and
where it risks defiance by the political branches. Indeed, treating customary international Jaw as
federal law would require the judiciary to intervene into the most deeply of political questions,
those concerning war. This the federal courts have said they will not do, most notably during the
Kosovo conflict. See, e.g., Campbell v. Clinton, 203 F.3d 19,40 (D.C. Cir.), cert. denied, 531
U.S. 815 (2000).· Again, the practice of the branches demonstrates that they do not consider
customary international law to be federal law. This position makes sense even at the level of
democratic theory, because conceiving of international law as a restraint on warmaking would
allow norms of questionable democratic origin- to constrain actions validly taken under the U.S.
Constitution by popularly accountable national representatives.
S3 "When articulating principles of international law in its relations With other states, the Executive branch
speaks not only as an interpreter of generaJIy accepted and traditional rules, as would the courts, but also as an
'advocate of standards it believes desirable for the community of nations and protective of national concerns."
Sabbatino, 376 U.S. at 432-33. See also Rappenecker v. United States, 509 F.Supp. ]024, 1029 (N.D. Cal. 1980)
(!'UIJder the doctrine of separation of powers. the making of those determinations [under international law] is
entrusted to the President."); international Load line Convention, 40 Op. Att'y Gen. at 123-24 (President "speak]s]
for the nation" in making determination under international law).
" Based on these considerations of constitutional text, structure, and history, we conclude
that any customary rules of international law that apply to anned conflicts do not bind the
President or the U.S. Armed Forces in their conduct of the war in Afghanistan.
B. Do the Customary Laws of War Apply to 01 Oaeda or the Taliban Militia?
Although customary international law does not bind the President, the President may still
use his constitutional wannaking authority to subject members of al Qaeda or the Tallban militia
to the Jaws of war. WhiJe this result may seem at first glance to be counter-intuitive, it is a
product of the President's Commander in Chief and ChiefExecutive powers to prosecute the war
The President has the legal and constitutional authority to subject both al Qaeda and
Taliban to the laws of war, and to try their members before military courts or connnissions
instituted under Title 10 of the United States Code, if he so chooses. Section 818 of title 10
provides in part that "[g)eneral courts-martial ... have jurisdiction to try any person who by the
Jaw of war is subject to trial by a military tribunal and may adjudge any punishment permitted by
the Jaw of war" (except for capi tal punishment in certain cases). Section 821 allows for the trial
"offenders or offenses that by statute or by the Jaw of war may be tried by military commissions,
provost courts, or other military tribunals. n We have described the jurisdiction and usage of
military tribunals for you in a separate memorandum. See generally Military Commissions
Memo. We do not believe that these courts would Jose jurisdiction to try members of al Qaeda or
the Taliban militia for violations of the laws of war, even though we have concluded that the
Jaws of war have no binding effect - as federal law - on the President.
This is so because the extension of the common laws of war to the present conflict is, in
essence, a military measure that the President can order as Commander in Chief. As the
Supreme Court has recognized, "an important incident to the conduct of war is the adoption of
measures by the military connnand not only to repel and defeat the enemy, but to seize and
subject to disciplinary measures those enemies who in their attempt to thwart or impede our
military effort have violated the law of war," See Ex parte Quirin, 317 U.S. 1, 28-29 (1942); cf.
Hirota v. Mac Arthur, 338 U.S. 197, 208 (1948) (Douglas, J., concurring) (Agreement with
Allies to establish international tribunals to try accused war criminals who were enemy officials
or armed service members was "a part of the prosecution of the war. It is a furtherance of the
hostilities directed to a dilution of enemy power and involving retribution for wrongs done. "). In
another case, the Court observed that: "ill the absence of attempts by Congress to limit the
President's power, it appears that, as Commander in Chief of the "Army and Navy of the United
States, he may, in time of war, establish and prescribe the jurisdiction and procedure of military
commissions, and of tribunals in the nature of such commissions, in territory occupied by Armed
Forces of the United States." Madsen v. Kinsella, 343 U.S. 341", 348 (1952). Thus, pursuant to
his Commander in Chief authority, the President could impose the laws of war on members ofa]
Qaeda and the Taliban militia as part of the measures necessary to "prosecute the war
successfully. .
Moreover, the President's general authority over the conduct of foreign relations entails
the specific power to express the views of the United States both on the content ofintemational
.law generally and on the application of international law to specific facts. "When articulating
principles of international law in its relations with other states, the Executive Branch speaks not
'only as an interpreter of generally accepted and traditional rules, as would the courts, but also as
an advocate of standards it believes desirable for the community ..of nations and protective of
national concerns." Sabbatino, 376 U.S. at 432-33. Thus, the President can properly find the
unprecedented conflict between the United States and transnational terrorist organizations a
"war" for the purposes of the customary or common laws of war. Certainly, given the extent of
hostilities both in the United States and Afghanistan since the September 11 attacks on the World
Trade Center and the Pentagon, the scale of the military, diplomatic and financial commitments
by the United States and its allies to counter the terrorist threats, and the expected duration of the
conflict, it would be entirely reasonable for the President to find that a condition of "war" existed
for purposes oftriggering application of the common laws of-war. He could also reasonably find
that a1 Qaeda, the Taliban militia, and other related entities that are engaged in conflict with the
United States were subject to the duties imposed by those laws. Even if members of these
groups and organizations were considered to be merely "private" actors, they could nonetheless
be held subject to the laws of war. See Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir.) ("The
liability ofprivate individuals for committing war crimes has been recognized since World War I
and was confirmed at Nuremberg after World War Il ... and remains today an important aspect
ofintemationallaw."), cert. denied, 518 U.S. 1005 (1996).
In addition, Congress has delegated to the President sweeping authority with respect to
the present conflict, and especially with regard to those organizations and individuals implicated
in the terrorist attacks of September 11, 2001. In the wake of those incidents, Congress enacted
Pub. L. No. 107-40, 115 Stat. 224 (2001). Congress found that "on September 11, 2001, acts of
treacherous violence were committed against the United States and its citizens," that "such acts
render it both necessary and appropriate that the United States exercise its rights to self-defense
and to protect United States citizens both at home and abroad,n and that "such acts continue to
pose an unusual and extraordinary threat to the national security and foreign policy ofthe United
States." ld. Section 2 ofthe statute authorized the President "to use all necessary and appropriate
force against those nations, organizations, or persons he determines planned, authorized,
committed or aided the terrorist attacks that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts of international terrorism against the
United States by such nations, organizations or persons." [d. Read together with the President's
constitutional authorities as Commander in Chief and as interpreter of international law, this
authorization allows the President to subject members of al Qaeda, the Taliban militia, and other
affiliated groups to trial and punislunent for violations of the common laws of war, if the
President determines that it would further the conduct of military operations or contribute to the
__----'d~e"""fense and secu~ftlte umted-States and its-citizens.
C. Maya U.S. Servicemember be Tried (or Violations ofthe Laws ofWar?
You have also asked whether the laws of war, as incorporated by reference in title 10,
also apply to United States military personnel engaged in armed conflict with al Qaeda or with
the Taliban militia. Even though the customary laws of war do not bind the President as federal
Jaw, the President may wish to extend some or all of such laws to the conduct of United States
military operations in this conflict, or to the treatment of members of al Qaeda or the TaJiban
captured in the conflict. It is within his constitutional authority as Commander in Chief to do so.
The common laws of war can be viewed as rules governing the conduct of military personnel in
time of combat, and the' President has undoubted authority to promulgate such rules and to
provide for their enforcement." The Army's Manual on the Law of Land Warfare, which
represents the Army's interpretation of the customary intemationallaw governing armed conflict,
can be expanded, altered, or overridden at any time by presidential act, as the Manual itself
recognizes. FM 27-10, ch. I, , 7(c). This makes clear that the source of authority for the
application of the customary laws of war to the armed forces arises directly from the President
through his Commander in Chiefpower.
Moreover, the President has authority to limit or qualify the application ofsuch rules. He
could exempt, for example, certain operations from their coverage, or apply some but not all of
the common laws ofwar to this conflict. This, too, is an aspect of the President's Commander in
Chief authority. In narrowing the scope of the substantive prohibitions that apply in a particular
conflict, the President may effectively determine the jurisdiction of military courts and
commissions. He could thus preclude the trials of United States military personnel on specific
charges of violations of the common laws of war.
Finally, a presidential determination concerning the application of the substantive
prohibitions of the laws of war to the Afghanistan conflict would not preclude the normal system
of military justice from applying to members of the U.S. Armed Services. Members of the
Armed Services would still be subject to trial by courts martial for any violations of the Uniform
Code of Military Justice (the uUCMJ"). Indeed, if the President were to issue an order, listing
certain common laws ofwar for the military to follow, failure to obey that order would constitute
an offense under the'UCMJ. 10 U.S.C. § 892 (2000). Thus, although the President is not
constitutionally bound by the customary laws of war, he can still choose to require the U.S.
, Armed Forces to obey them through the UCMJ. '
54 The President has broad authority under the Commander i~ Chief Clause to take action to superintend
the military that overlaps with Congress's power to create the armed forces and to make rules for their regulation.
See Loving v. United States, 517 U.S. 748, 772 (1996) ("The President's duties as Conunander in Chief ... require
him to take responsible and continuing action to superintend the military, including courts-martial."); United States
v. Eliason, 41 U.S. (16 Pet.) 291,301 (1842) (liThe power of the executive to establish rules and regulations for the
government of the army, is undoubted."). The executive branch has long asserted that the President has "the
unquestioned power to establish rules for the government of the army" in the absence of legislation. Power of the
President to Create a Militia Bureau in the War Department, 10 Op. Att'y Gen. 11, 14 (1861). Indeed, at an early
date, Attorney General Wirt concluded that regulations issued by the President on his independent authority
remained in force even after Congress repealed the statute giving them legislative sanction "in all cases where they
do not conflict with positive legislation." Brevet Pay ofGeneral Macomb, 1 Op. Att'y Gen. 547,549 (1822). These
independent powers of the President as commander in chief have frequently been exercised in administering justice
in cases involving members ofthe Armed Forces: "[i]ndeed, until 1830, courts-martial were convened solely on [the
President's] authority as Commander-in-Chief." Congressional Research Service, The Constitution ofthe United
States ofAmerica: Analysis and Interpretation 479 (J987).
Thus, our view that the customary international Jaws of armed conflict do not bind the
President does not, in any way, compel the conclusion that members of the U.S. Armed Forces
who conunit acts that might be considered war crimes would be free from military justice.
For the foregoing reasons, we conclude that, based on appropriate presidential
determinations, the neither the federal War Crimes Act, the Hague Convention IV, nor the
Geneva Conventions would apply to the operations of the U.S. Armed Forces against the al
Qaeda terrorist organization or the Taliban militia, or to the treatment of members of those
groups captured by U.S. Armed Forces in this conflict. We also conclude that customary
international law has no binding legal effect on either the President or the military because it is
not federal Jaw, as recognized by the Constitution. Nonetheless, we also believe that the
President, as Commander in Chief, has the constitutional authority to impose the customary laws
ofwar on both the al Qaeda and Taliban groups and the U.S. Armed Forces.
Please let us know ifwe can provide further assistance.