Revisiting Hamdan v. Rumsfeld's Analysis of the Laws of Armed Conflict

20 Pages Posted: 5 May 2008

Abstract

In Hamdan v. Rumsfeld, the Supreme Court carried forward the international legal debate over the nature and regulation of armed conflicts between state and non-state actors that go beyond the territory of the state. According to the prevailing interpretation of the Hamdan decision held by both scholars and the current Administration, the Court identified such conflicts as armed conflicts not of an international character, which are governed by Common Article 3 of the Geneva Conventions. One of the implications of this interpretation is that al Qaeda detainees are entitled only to the minimal protections enshrined in Common Article 3. This Article challenges this interpretation by arguing that the Court deliberately avoided determining both the nature of the conflict in which the petitioner was captured and the nature of the applicable legal regime. While the Court indeed applied Common Article 3 to this conflict, it regarded Common Article 3 as a minimum rather than necessarily as an exhaustive legal regime. The boundaries that the Court marked for future debate are therefore much wider than understood by many thus far. The Article ends with a call to the Administration to revisit its interpretation of the decision and consider whether al Qaeda detainees are legally entitled to further protections beyond those afforded in Common Article 3.

Keywords: Hamdan, Hamdi, Guantanamo, detainees, prisoners of war, POW, Common Article 3, Geneva Convention, war, armed conflict, extra state armed conflict, hostilities, terrorism, laws of war, international humaitarian law, al Qaeda, al Qaida, military commission

JEL Classification: K33

Suggested Citation

Shamir-Borer, Eran, Revisiting Hamdan v. Rumsfeld's Analysis of the Laws of Armed Conflict. Emory International Law Review, Vol. 21, 2007, Available at SSRN: https://ssrn.com/abstract=1129467

Eran Shamir-Borer (Contact Author)

NYU School of Law ( email )

40 Washington Square South
New York, NY 10012
United States

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