The Judiciary and Armed Conflict: What About Hamdan?

by Kevin Jon Heller

Apologies for the non-existent blogging of late — a few weeks ago a car knocked me off my bike, breaking a small bone in my forearm and badly bruising my ribs.  I didn’t need surgery or even a cast, fortunately, but I haven’t been able to type more than a short email until the past few days.  This is probably the longest I’ve gone without blogging in more than five years!

In any case, I just wanted to add to John’s excellent post about the judiciary and armed conflict. There is, of course, a far more recent precedent for the idea that the judiciary is entitled to review executive determinations regarding the existence or non-existence of armed conflict: Hamdan v. Rumsfeld.  The Bush administration claimed that the Geneva Conventions did not apply to Hamdan because the conflict with al-Qaida did not qualify as either an international armed conflict or a non-international armed conflict:

The conflict with al Qaeda is not, according to the Government, a conflict to which the full protections afforded detainees under the 1949 Geneva Conventions apply because Article 2 of those Conventions (which appears in all four Conventions) renders the full protections applicable only to “all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318.  Since Hamdan was captured and detained incident to the conflict with al Qaeda and not the conflict with the Taliban, and since al Qaeda, unlike Afghanistan, is not a “High Contracting Party”—i.e., a signatory of the Conventions, the protections of those Conventions are not, it is argued, applicable to Hamdan


The Court of Appeals thought, and the Government asserts, that Common Article 3 does not apply to Hamdan because the conflict with al Qaeda, being “ ‘international in scope,’ ” does not qualify as a “ ‘conflict not of an international character.’ ” 415 F. 3d, at 41. That reasoning is erroneous. The term “conflict not of an international character” is used here in contradistinction to a conflict between nations. So much is demonstrated by the “fundamental logic [of] the Convention’s provisions on its application.” Id., at 44 (Williams, J., concurring). Common Article 2 provides that “the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties.” 6 U. S. T., at 3318 (Art. 2, ¶1). High Contracting Parties (signatories) also must abide by all terms of the Conventions vis-a-vis one another even if one party to the conflict is a nonsignatory “Power,” and must so abide vis-a-vis the nonsignatory if “the latter accepts and applies” those terms. Ibid. (Art. 2, ¶3). Common Article 3, by contrast, affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory “Power” who are involved in a conflict “in the territory of” a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase “not of an international character” bears its literal meaning.

The Supreme Court rejected the Bush administration’s arguments, holding that, at a minimum, Common Article 3 applied to the conflict with al-Qaeda:

[T]here is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories.  Article 3, often referred to as Common Article 3 because, like Article 2, it appears in all four Geneva Conventions, provides that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum,” certain provisions protecting “[p]ersons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by … detention.” Id., at 3318. One such provision prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” Ibid.

It is a basic rule of international humanitarian law that Common Article 3 applies only to hostilities that rise to the level of a non-international armed conflict.  The Supreme Court’s holding in Hamdan thus represents — at least implicitly — a judicial rejection of an executive determination that the U.S. was not engaged in an armed conflict.

6 Responses

  1. Glad to hear you are on the mend Kevin.  As to your concluding sentence: I don’t think the Bush Administration denied that there was *an* armed conflict.  Rather, they denied that the armed conflict in question fit into either the IAC or NIAC boxes, insisting instead that there is a gap category for armed conflicts that are neither international nor confined to a single state’s territory (ala civil war).  Hamdan reflects the domestic law proposition that the judiciary is not bound by the executive branch’s interpretation of the relevant treaty language, then, but I think it does not speak to the distinct question of whether and to what extent judges should defer to executive branch determinations that the threshold of armed conflict has been crossed.

  2. Kevin, thanks for this nice post.

    I’ve also wondered about the impact of Hamdan on this issue.  However, I’m not convinced that Hamdan constituted judicial rejection of an executive determination that the U.S. was not engaged in an armed conflict.  I went back and took a look at the government’s merits brief in Hamdan, and I don’t think the government’s position was that the United States was not in an armed conflict.  Rather, the government’s position seemed to have been that although the United States was in an armed conflict, the protections of the Geneva Conventions do not apply to al Qaeda.  More specifically, the government argued that the relevant conflict would have to be considered an IAC – rather than a NIAC – and that al Qaeda didn’t meet the jurisdictional requirements under Article 2 of the Geneva Conventions for the protections of the Conventions to attach.  Notably, the jurisdictional requirement in question on that point was not the existence of an armed conflict, but rather whether al Qaeda was a High Contracting Party or, more relevantly, a “Power in Conflict” that has accepted and applied the terms of the Convention.

    The relevant passages that you present from Hamdan seem tailored to these narrower questions as well – whether the relevant conflict was an NIAC or an IAC, and whether the protections under Common Article 3 should be afforded to Hamdan.

    Here’s a link to the government’s merits brief in case you’re curious:'s%20Brief.pdf

  3. I respectfully disagree. The U.S. did not simply claim that it was engaged in a factual armed conflict with al-Qaida; it claimed that it was possible for that armed conflict to exist factually without any corresponding legal characterization — not an IAC, not a NIAC.  That was itself a legal characterization of the armed conflict.  And it was a characterization that the Supreme Court specifically rejected.  The Court held quite clearly that the Bush administration was not entitled to fight an armed conflict that existed outside of the Geneva Conventions — and in so holding, it necessarily rejected the idea that armed conflict can exist as a brute fact that requires no legal characterization.

    I suppose it is still possible to argue that the Supreme Court is entitled to determine the legal characterization of an armed conflict only insofar as the executive admits the factual existence of armed conflict.  Such an argument, however, implies (1) that the Bush administration’s only mistake in Hamdan was to use the term “conflict” to describe the reciprocal violence between the U.S. and al-Qaida, and (2) that if the Bush administration had simply denied the existence of armed conflict in the first place, the Supreme Court would have not been able to legally characterize that conflict and would not have been entitled to hold that CA3 applied to Hamdan.  That doesn’t make much sense to me, and I dare say it would not have made much sense to the Supreme Court, either.

  4. Kevin, best wishes in a speedy recovery!  I do think the most dangerous activity I do regularly is bike the mile or so to the gym here in tranquil upper Upper Northwest DC – and that, per Police Dept instructions, mostly on the sidewalk.

  5. My understanding is that the Bush administration’s position was designed to allow the government to assume war powers in relation to the detention, trial, and targeting of terrorism suspects while at the same time denying that the law of armed conflict afforded protections to these terrorism suspects.  It would have been difficult for it to do the former without asserting that there was an ongoing armed conflict.  In other words, I don’t see the Bush administration’s position as a “mistake,” but rather a calculated judgment that the Supreme Court would uphold its legal position – a position that it thought was the most advantageous to it in its counterterrorism campaign.

  6. Response…
    These are questions of law that, if otherwise properly before a court (jurisdiction, standing, etc.) are within the competence of a court of law in a democracy.  I agree that Hamdan decided that common article 3 applied, but as a minimum (without the need to classify the exact nature of the conflict).  The second to the last sentence may be misleading in view of the fact that the customary rights, duties and competencies reflected in common article 3 (perhaps as opposed to the treaty provision as treaty provision) today applies also in an international armed conflict as C.I.L.
    With respect to the govt’s nonsense claim about members of al Qaeda that they cannot have rights under common art. 3 because al Qaeda did not ratify the treaty (and could not), lets recall that all members of al Qaeda are undoubtedly nationals of a party to the Conventions (e.g., Saudi, Pakistani nationals).

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