Journal of International Criminal Justice Advance Access originally published online on April 15, 2008
Journal of International Criminal Justice 2008 6(2):371-383; doi:10.1093/jicj/mqn016
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This article appears in the following Journal of International Criminal Justice issue: Special Issue The Law of Cruelty: Torture as an International Crime [View the issue table of contents]
Why Article 5 Status Determinations are not ‘Required’ at Guantánamo
* Major, Judge Advocate General's Corps, US Army; LL.M. Candidate (Columbia Law School), LL.M. (Military Law), The Judge Advocate General's School, US Army; JD with highest honours (University of Oklahoma College of Law). [jcd2147{at}columbia.edu]
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Abstract |
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On 17 December 2007 the Military Commission convened to try Salim Ahmed Hamdan ruled that, as part of Hamdan's challenge to its jurisdiction, Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) required the Commission to entertain Hamdan's claims of entitlement to prisoner of war status. The Commission rejected those claims and found Hamdan to be an unlawful combatant subject to its jurisdiction two days later. The author concludes that the Commission's decision to grant an Article 5 status determination was consistent with international humanitarian law. He further argues, however, that the Commission's decisions to conduct the status determination and to consider all-claimed prisoner of war categories under the GPW were inconsistent with the Military Commission Act, specifically its definition of lawful and unlawful combatants and, hence, inconsistent with the US national law governing the Commission.