Who's Afraid of Geneva Law?

Abstract

According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the self-execution doctrine distinguishes between self-executing treaties, which automatically establish domestic law, and non-self-executing treaties, which only create domestic law after executing legislation. The Constitution declares treaties to be the law of the land, and early Supreme Court cases take the view that treaties presumptively create enforceable federal law. After World War II and the birth of the human rights movement, however, activist lower courts, informed by segregationist and isolationist philosophies, cobbled together a modern self-execution doctrine that erects unjustified legal barriers to treaty enforceability. It is this modern doctrine upon which the Bush administration has consistently relied when arguing that Guantanamo detainees cannot pursue Geneva-based claims. Hamdi and Hamdan gave the Supreme Court two good opportunities to declare the Conventions self-executing, thereby reaffirming the constitutional status of treaties. The Court declined to do so and performed legal gymnastics in order to avoid the issue. The Court's treatment of the Conventions allowed Congress to maintain a pretense of respect for international law, while practically abrogating the Conventions through the Military Commissions Act. In addition, the Court's apparent fear of Geneva self-execution evidences a disturbing internalization of isolationist ideology regarding treaties and undermines claims of the Court's new internationalism.

Keywords: Geneva Conventions, Guantanamo, Hamdan, Hamdi, self-executing

JEL Classification: K19, K33