Geoffrey Corn on Hamdan v. Rumsfeld

We have invited Professor Geoffrey Corn of South Texas Law School, who was a former guest blogger at Opinio Juris and is an expert on military justice, to summarize his initial impressions of today’s decisions in Hamdan v. Rumsfeld. Here is his summary:

When the DC Circuit rejected Hamdan’s challenge to the Military Commission, it accepted the government argument that common article 3 of the Geneva Conventions did not apply to the conflict with Al Qaeda because that conflict was one of “international scope.” This conclusion ratified the Bush Administration policy regarding the GWOT by relegating the conflict with Al Qaeda into a “legal black hole” – unregulated by the Geneva Conventions because Al Qaeda was not a state entity; and unregulated by the baseline standard of common article 3 because the conflict was “international” in character.

Today’s opinion by the Supreme Court categorically rejected this interpretation of the law of armed conflict, and in so doing restored the symmetry between “international” and “non-international” armed conflicts.

Having accepted the proposition that military operations conducted against Al Qaeda constitute a distinct “armed conflict” (a proposition that is certainly not universally accepted), the Court then adopted a pragmatic interpretation of the Geneva Conventions that ensures that no “armed conflict” falls outside the law. The Court held that even if the government had properly alleged a violation of the law of war subject to the jurisdiction of a military commission (which it did not), the current commission construct would be invalid because it is inconsistent with the minimal requirements of common article 3. Common article 3, according to the Court, is binding on the United States in the armed conflict with Al Qaeda as a matter of treaty obligation.

Instead of adopting the narrow interpretation of this article asserted by the Bush Administration and reflected in the opinion of the DC Circuit, the Court chose to follow the “spirit” of the law of armed conflict that no person falls outside the protection of the law. This spirit is reflected in the Commentary to the Geneva Conventions, which indicates that common article 3 should apply to the broadest range of circumstances.

This spirit, which has animated the law of armed conflict policies of the Department of Defense for many years, was undermined by the restrictive policy of the Bush Administration. But, as the Court noted, the purpose of common article 3 is to provide a baseline of humanitarian protection for any armed conflict that falls outside the regulation of the Conventions writ large because it does not involve two state entities. In so doing, the Court has rejected the proposition that an armed conflict can occur outside the scope of some legal regulation, a proposition central to the purpose of the law of armed conflict.

This aspect of the opinion transcends the question of the legality of the military commission and extends to every aspect of military operations conducted against Al Qaeda. It represents a categorical rejection of the proposition that individuals detained in relation to such operations are protected against inhumane treatment only as a matter of policy, and not as a matter of law. Instead, such individuals fall under the protective umbrella of the common article 3 humane treatment mandate. The “international” scope of the military operations associated with this fight should therefore no longer be asserted as a justification for denying the applicability of this provision to such individuals.

It is remarkable to me that the application of this baseline standard of humane treatment was ever seriously questioned. It is less remarkable that this pragmatic balance of authority and obligation was adopted by the Court. Such a balance is central to the legitimacy of military operations– even operations against a trans-national terrorist entity.