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 interpretations of the Torture Convention and 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 of 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.)
In the early 1970s, the ICRC circulated a questionnaire which asked States for their views on the proper interpretation of Article 1. The United States responded in writing:
“[Article 1] was … intended to put upon each of the Contracting States a commitment to insist that the Conventions be respected by other Parties.
In our view, States Parties to the Conventions are under a duty to exercise their moral suasion and influence in order to induce Parties to a conflict to respect the Conventions.” (emphasis added)
The term “moral suasion” is relatively mushy, but the term “influence” is fairly specific. Indeed, “influence” is the term that the ICRC uses throughout its commentary to describe the duty of States under Article 1.
One other data point is also worth noting. In a high stakes Security Council resolution adopted in 1990, the United States supported a view of Article 1 in line with the position it expressed in 1973. The U.N. Secretary-General had called on the Council to urge state parties to the Geneva Conventions to act on their responsibility to “ensure respect” for the Conventions to address certain practices by the government of Israel. The Secretary-General’s report stated: “It is evident that for any measure of protection to be ensured, the co-operation of the Israeli authorities is, under the present circumstances, absolutely essential. Nevertheless, given the special responsibility of the high contracting parties for ensuring respect for the Convention, the Security Council might wish to call for a meeting of the high contracting parties to discuss possible measures that might be taken by them under the Convention.” In response, the Security Council adopted—with an affirmative vote by the United States—Resolution 681, in which one of the few operative paragraphs stated:
“The Security Council … [c]alls upon the high contracting parties to the Fourth Geneva Convention of 1949 to ensure respect by Israel, the occupying Power, for its obligations under the Convention in accordance with article 1 thereof.”
Resolution 681 is already well known among experts who cogitate and debate about the proper interpretation of Article 1. Taken together with the 1973 statement by the U.S. government, the U.S. support for Res. 681 may start to build an even stronger case that there was a settled U.S. position on the interpretation of Article 1 during that time period.
All that said, perhaps the 2016 and earlier statements can be reconciled by thoughtful legal analysis. I suppose some might read the 2016 speech to reject a maximalist set of expectations—the notion that any government would have to adopt the same measures to ensure compliance not only with its own military partners but also with other States and in remote armed conflicts. And the 1973 and 1990 U.S. positions might be read to accept only a minimal duty to exercise influence in some (unspecified) circumstances. The true legal obligation, under such an analysis, would fall somewhere in the middle.
Finally, as an aside and perhaps as a surprise given the analysis above, let me add: I carry no brief for the ICRC’s interpretation of common Article 1. I have considered it an unsupportable proposition, and thus agree with Professor Monica Hakimi that such an “interpretation is sweeping and, at least for now, seems to be mostly aspirational.” I would also take the criticism one step further. My view has been that the ICRC’s attempt to advance this interpretation will likely meet with stiff State resistance and, as a result, could be a self-defeating move that undercuts other, more valuable contributions by the organization. I have to admit though that the 1973 statement by the United States gives me pause, and at the very least makes the current ICRC position more understandable.