When should the U.S. government reverse a previous U.S. interpretation of a treaty? Should there be a presumption against doing so, and what process and substantive reasons should be required to overcome that presumption? These are not overly academic questions given that a new administration will soon come into power. These are also issues that have arisen in recent times with respect to Executive Branch interpretation of the torture convention and of the geographic reach of human rights treaties. As I discuss below, this kind of interpretive problem may also be relevant for U.S. obligations under the Geneva Conventions.
Put another way, should Executive Branch lawyers follow something like a norm of stare decisis with respect to legal interpretations reached by their predecessors, and, if so, how should that norm apply? In a keynote speech before the Annual Meeting of the American Society of International Law in 2010, then-Legal Adviser to the State Department, Harold Koh, set out this framework:
“[G]overnment lawyers should begin with a presumption of stare decisis—that an existing interpretation of the Executive Branch should stand—unless after careful review, a considered reexamination of the text, structure, legislative or negotiating history, purpose and practice under the treaty or statute firmly convinces us that a change to the prior interpretation is warranted.”
Let’s now turn to the treaty provision in question. Common Article 1 of the Geneva Conventions provides the terms for state obligations under the Conventions. It succinctly states:
“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances.”
The International Committee for the Red Cross (ICRC) recently published a set of commentaries which adopt an expansive view of Common Article 1. According to the ICRC, this provision means that all States that ratify the Conventions not only have a duty to respect the treaties but also have a duty to use their influence to ensure that other States respect the Geneva Conventions—regardless of where the armed conflict arises on the globe, which States or non-State actors are fighting in it, and whether the State that has influence has any real connection to the conflict.
In April 2016, the current Legal Adviser to the State Department, Brian Egan, also in a keynote speech before the Annual Meeting of the American Society of International Law, described efforts that the United States undertakes to ensure its military partners comply with the law of armed conflict. (Disclosure: During my time working for the Department of Defense, I played a role in commenting on some drafts of the speech.) The Legal Adviser then addressed—and rejected—an expansive reading of Common Article 1:
“Some have argued that the obligation in Common Article 1 of the Geneva Conventions to ‘ensure respect’ for the Conventions legally requires us to undertake such steps and more vis-à-vis not only our partners, but all States and non-State actors engaged in armed conflict. … [W]e do not share this expansive interpretation of Common Article 1 ….”
I have more recently come across an earlier position of the U.S. government on Common Article 1, and one that was adopted much closer to the drafting of the Geneva Conventions and to the timing of the U.S. decision to ratify the conventions. (Others, especially experts who work in this area, may already know about this earlier position, and so I may just be revealing my own ignorance in personally coming across it only recently.)