International Myopia: Hamdan's Shortcut to 'Victory'

Abstract

The Supreme Court's decision in Hamdan v. Rumsfeld was hailed by many as a victory for international law. By basing part of its decision on the Geneva Conventions, the Court was seen as forcing a reluctant administration to recognize and comply with international law. A closer look at the Geneva Convention analysis, however, calls that conclusion into question. By ignoring its own canons of treaty interpretation the Court produced an uncharacteristically cursory analysis of the international law issues in this case. In so doing, it missed an opportunity to definitively answer important questions concerning both the scope and substance of Geneva's protections in the conflict with al Qaeda. It was silent on the competing values underlying the Conventions and the difficult status questions that arise in non-international armed conflicts, leaving the Fourth Circuit to wrestle with these issues in al-Marri. It also failed to discuss the application of Protocol II, which by definition applies to Common Article 3 conflicts, preferring to apply the more expansive protections of Protocol I without explaining that choice. Lastly, the Court's unfortunate comparison of the military commissions with the summary executions meted out by the Japanese during World War II served only to inflame the rhetoric surrounding the debate rather than advance the legal understanding of how Geneva applies to the current situation.

Keywords: Geneva Conventions, Hamdan, Common Article 3, armed conflict, law of armed conflict