The Military Commissions Act's Inconsistency with the Geneva Conventions: An Overview

Abstract

The Military Commissions Act codifies a wide range of provisions that are inconsistent with binding international humanitarian law standards. In spite of the Act's title, these inconsistencies go well beyond the rules and procedures governing the trail of terrorist suspects before military commissions. In addition to violating fundamental fair trial guarantees defined in international humanitarian law, the Act misapplies the Geneva Conventions by adopting a one size fits all approach to the characterization of all counter-terrorist operations, provides for an overly broad definition of unlawful combatant status that effectively deprives terror suspects of applicable law of war protections, repudiates longstanding elementary considerations of humanity contained in common Article 3 and entrenches a detention regime that does not comport with the terms of the Geneva Conventions. These departures from international humanitarian law are reinforced by provisions of the Act that purport to insulate US government personnel and their agents from contrary interpretation and judicial scrutiny. The Act is thus best described as a series of breaches rather than developments of international humanitarian law, and as such, signals a stark departure from the US's historical commitment to the laws of war.