Full and Fair By What Measure?: Identifying the International Law Regulating Military Commission Procedure
69 Pages Posted: 18 Apr 2006
Treating the 9/11 attacks as acts of war offered legal advantages that the Administration quickly seized upon, including authority to try suspected terrorists by military commissions. But resort to the law of war also logically invokes its constraints, something ignored by those who developed the initial commission rules. The Supreme Court's Hamdan decision addressed this flaw, holding that at a minimum the rather ambiguous language of Common Article 3 (CA3) of the 1949 Conventions applied to the commissions and that the tribunals failed to meet requisite standard of both the Uniform Code of Military Justice and CA3. Although the subsequent Military Commissions Act of 2006 (MCA) made some much needed improvements to the tribunal's rules, Hamdan is unlikely to be the judiciary's last word on the subject since it contains only a cursory international law analysis and fails to decide whether more specific mandates than CA3 might also apply.
This article endeavors to fill Hamdan's analytical gaps. It first seeks to craft a legally sound definition of the nature and scope of the war on terror, suggesting a more accurate formulation would be the War against al Qaeda and the Taliban, (WAQT). It then assesses three general legal regimes that might provide governing standards applicable to military commission procedures:
(1) law of war treaties ratified by the U.S.;
(2) International Human Rights law; and,
(3) customary international law.
After considering both the impact on the current military commissions and the arguments for and against application of each of these standards, the paper concludes that Article 75 of Additional Geneva Protocol I of 1977, establishing baseline protections for persons not benefiting from more specific treaty provisions, should be the governing international standard. Although not ratified by the United States, this article should apply to the WAQT as being declaratory of customary international law. While the argument for application of CA3 is shown to be weaker than Hamdan portrays it, there would be nothing inconsistent with Hamdan in applying Article 75 as an adjunct to interpreting CA3 as advocated by the plurality opinion. What would be legally inconsistent would be allowing acts justified by the customary law of war to be conducted entirely free of the constraints that body of law imposes.
Keywords: military commission, law of war, terrorism, war crimes, Geneva Conventions, war on terror
JEL Classification: K33
Suggested Citation: Suggested Citation