Are you there, Geneva? It's me, Guantanamo.

Author:Petty, Keith A.

This essay examines the application of the Geneva Conventions at the Guantanamo Bay Military Commissions. International and domestic commentators have long criticized the military commissions for failing to adhere to the laws of armed conflict enshrined in Geneva, referring to Guantanamo as a "legal black hole." This criticism, however, is misplaced. Since the attacks of September 11, 2001, the legal framework for prosecuting suspected terrorism detainees has evolved. The underlying reason for this is a considerable gap in the Geneva protective regime for combatants who do not satisfy the legal requirements of prisoners of war (GCIII) or civilians (GCIV). Nonetheless, the Military Commissions Act of 2006 codifies the U.S. application of the laws of war to Guantanamo accused. As the pre-trial litigation in the case United States v. Hamdan demonstrates, the Geneva Conventions have been faithfully applied by the military commissions contributing to a trial process that is full and fair.

  1. INTRODUCTION

    On May 21, 2009, President Obama declared that military commissions play an important role in prosecuting law of war offenses. This speech effectively revived the controversial Guantanamo Bay justice system. He stated, "[m]ilitary commissions have a history in the U.S. dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war." (1) Nonetheless, commentators maintain that the military commissions fail to comply with constitutional, international, and military legal obligations. In practice, however, the commissions have been at the cutting edge of these disciplines, particularly the law of armed conflict.

    This essay examines the application of the law of armed conflict in military commission jurisprudence. In order to fully understand current practice it is necessary to discuss U.S. policy regarding the applicability of the Geneva Conventions to terrorist detainees at various times: immediately following September 11, 2001, the 2006 Supreme Court decision in Hamdan v. Rumsfeld as it relates to Common Article 3 of the Conventions, and the law of war aspects of the Military Commissions Act of 2006. Once the preliminary legal framework is established, this essay examines two pretrial rulings in the commission case United States. v. Hamdan, each dealing with the applicability of law of war provisions to Guantanamo accused. This essay concludes by questioning whether the laws governing armed conflicts of the past must be updated to provide greater protection to parties to modern conflicts. Only then will there be sufficient legal parameters set for all parties engaged in the struggle against terrorism.

  2. A DEVELOPING LEGAL FRAMEWORK

    1. The Pre-Hamdan Approach to Geneva

      After the terrorist attacks of September 11,2001, the U.S. was faced with the daunting task of determining the legal framework that applied to the perpetrators of these terrible crimes. When the U.S. led coalition invaded Afghanistan in October 2001, there was no longer any question that the laws of armed conflict applied to the "global war on terror." (2) The U.S. government, however, determined that al-Qaeda terrorists and members of the Taliban captured during the course of this conflict did not meet the requirements of prisoners of war and, as such, were not entitled to the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GCIII). (3) Moreover, former President Bush stated in a memorandum,

      I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of [the Geneva Conventions] does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character." (4) The Bush administration's policy was not without merit. The plain language of Common Article 3 provides protections to persons who are hors de combat---out of the fight---only "in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." (5) Additionally, Jean Pictet's commentary to the Third Geneva Convention explains that "it must be recognized that the conflicts referred to in Article 3 are armed conflicts, with 'armed forces' on either side engaged in 'hostilities'--conflicts, in short, which are in many respects similar to an international war, but take place within the confines of a single country." (6)

      Applying these standards it was reasonable to believe that the "war on terror" was international in scope. On its face, the conflict with al-Qaeda was not limited to a single country since attacks had taken place in East Africa in the 1998 embassy bombings, off the Yemen coast in the bombing of the U.S.S. Cole in 2000, and of course the attacks in the U.S. in 2001. (7) This analysis, however, was upended when a Yemeni detainee, Salim Hamdan, took his case to the Supreme Court and won.

    2. Hamdan v. Rumsfeld

      The U.S. Supreme Court's seminal 2006 decision in Hamdan v. Rumsfeld (8) changed U.S. policy regarding the law of armed conflict in the war on terror. In spite of the Executive's arguments against the applicability of Geneva, the Court held that Article 21 of the Uniform Code of Military Justice required military commissions to comply with the law of war. (9) Through this article, the Geneva Conventions were officially brought into the legal framework of military commissions. (10) Specifically, the majority found that Common Article 3 is applicable to the conflict between the U.S. and al-Qaeda as a non-international armed conflict. (11) The Court reasoned that the conflict was not international in scope because it did not involve two warring States, even though the conflict was primarily between the U.S. and a foreign-based non-state armed group. (12)

    3. The Military Commissions Act of 2006

      The Military Commissions Act of 2006 (MCA) was enacted as a direct response to the Supreme Court's decision in Hamdan. Besides containing the most comprehensive legal guide to the prosecution of unlawful combatants, the MCA directly references the law of armed conflict. Specifically, the MCA's personal jurisdiction provisions reaffirm the critical distinction between lawful and unlawful combatants and the protections they are afforded. (13) Other provisions, including that the Geneva Conventions may not be used as a source of rights, have drawn considerable criticism. The following sections discuss each of these important issues.

      1. Personal jurisdiction and combatant status

        Congress specified that military commissions may only exercise jurisdiction over alien unlawful enemy combatants. (14) The MCA explains further that lawful combatants may not be tried before a military commission. (15) As discussed in more detail below, the distinction between lawful and unlawful combatants can be found in the Third Geneva Convention (GCIII). (16) While the Conventions do not define persons as "lawful" or "unlawful" combatants, it follows naturally that a person who qualifies for the Conventions' prisoner of war protections is considered a "lawful" combatant.

        For the purposes of trial for law of war violations, lawful combatants enjoy combatant immunity and may not be prosecuted merely for taking part in hostilities. According to the MCA, "[1]awful enemy combatants who violate the law of war are subject to [the Uniform Code of Military Justice]," (17) the same law used to try U.S. soldiers at courts-martial. (18) In contrast, unlawful combatants--those failing the elements of GCIII Article 4--do not enjoy the belligerents' privilege and may be prosecuted for their criminal acts before a military commission.

        A lawful enemy combatant--someone not subject to trial by military commission--is defined under the MCA as:

        (A) a member of the regular forces of a State party engaged in hostilities against the United States; (B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or (C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States. (19) The language above is taken directly from Article 4 of GCIII, (20) with some notable exceptions. For example, in order to qualify as a prisoner of war in the Geneva framework, an individual must meet seven criteria. Five of these are explicitly listed above: operating under the authority of a government ("State party"), operating under responsible command, wearing fixed insignia, carrying arms openly, and following the laws of war. The following two criteria of Article 4 are not expressly mentioned in the MCA: the existence of an international armed conflict as required by Common Article 2 to the four Geneva Conventions of 1949, (21) and the prohibition against acting unilaterally without belonging to an organization. (22) When these criteria are met, combatants enjoy certain privileges upon capture, including combatant immunity.

        Combatant immunity and the protections afforded prisoners of war are part of the customary laws of war. These norms developed in order to provide humane treatment for persons no longer taking part in hostilities. (23)

        Over time the rules...

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