Hamdan, Fundamental Fairness, and the Significance of Additional Protocol II

Abstract

One significant aspect of the recent decision in Hamdan v. Rumsfeld was the applicability of the fundamentally fair trial requirement derived from the laws of war. A majority of the Court determined that the procedures established for the military commission violated the "regularly constituted tribunal" requirement of Common Article 3 of the Four Geneva Conventions of 1949. In a more controversial portion of the decision, a plurality of the Court relied on the procedural requirements established by Article 75 of Protocol I Additional to the Four Geneva Conventions to bolster this conclusion, even though President Reagan rejected that treaty as "fundamentally flawed." Ironically, an identical provision exists in Protocol II Additional to the Four Geneva Conventions, a treaty that both Presidents Reagan and Clinton have sought Senate advice and consent in order to ratify. Although textually inapplicable to armed conflicts occurring outside the territory of a contracting party, the United States opposition this scope limitation, coupled with the fact that unlike Additional Protocol I, this treaty was specifically intended to regulate non-international armed conflicts, makes this treaty an equally if not more compelling source of authority in support of the Court's holding. This article will briefly explore the semiliterate between the fundamental fairness provisions of Additional Protocols I and II, and the United States position related to these treaties.

Keywords: Law of War, International Law, National Security Law

JEL Classification: K33, K10