19 Aug The Judiciary and Armed Conflict: What About Hamdan?
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.