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
| ||||||||||||||||||||||||||||||||||||||||||||||||
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]
 |
Abstract |
|---|
 Top Abstract 1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
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.
|
1. Introduction |
|---|
|
TopAbstract1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
Of the many difficult questions surrounding military Commissions at Guantánamo, the most fundamental is the question of a Commission's jurisdiction over persons and offences. This article examines this jurisdiction question in the context of a Commission's recent decision that it must look to international humanitarian law, specifically Articles 4 and 5 of the GPW, to determine whether an accused, Salim Ahmed Hamdan (hereinafter Hamdan), was an unlawful combatant subject to its jurisdiction under the Military Commissions Act of 2006 (hereinafter MCA).1 It will examine the bases of that decision, its conformity with international humanitarian law, and the relationship between the MCA and relevant international humanitarian law. It concludes that due to the relationship of international to US national law, Hamdan's Commission should only have looked to the provisions of the MCA to determine whether Hamdan was subject to its jurisdiction.
Hamdan, a Yemeni national, was captured on 24 November 2001, in the midst of the international armed conflict in Afghanistan resulting from the United States and coalition invasion.2 At the time of his capture, Hamdan is alleged to have been transporting surface to air missiles for use against the invasion.3 He was detained and later transferred to the US detention facility in Guantánamo Bay, Cuba.4 Hamdan is alleged to have been a member of al Qaeda since at least 1996, a driver and bodyguard for Osama bin Laden, engaged in various acts supporting the al Qaeda organization, and therefore complicit in the criminal activities and enterprise of al Qaeda.5 Pursuant to President Bush's order to convene military Commissions,6 Hamdan was charged with conspiracy to commit ‘offenses triable by military Commission’ to include ‘attacking civilians; attacking civilian objects, murder by an unprivileged belligerent, destruction by an unprivileged belligerent; and terrorism’.7
Hamdan became well known to the international legal community when he challenged the military Commissions ordered by President Bush. In Hamdan v. Rumsfeld,8 the US Supreme Court found two fundamental flaws with the President's Commissions. First, the Court found insufficient justification for departures from the rules and procedures applicable at US courts-martial as required by Article 36(b) of the Uniform Code of Military Justice (UCMJ).9 Second, the Court determined that the Commissions failed to comply with Article 21 of the UCMJ because they were not tribunals authorized by the law of war, as required by that section.10 The Court found that the Commissions order did not comply with the prohibition in Article 3, common to all four Geneva Conventions (hereinafter ‘Common Article 3’),11 against ‘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’.12 In making this determination, the Court found that, at a minimum, Common Article 3 applied to the conflict between the United States and al Qaeda.13
In response to the Hamdan decision, the President requested and Congress enacted the MCA.14 The MCA authorized military Commissions (hereinafter ‘MCA Commissions’) similar in many respects to those found insufficient in Hamdan but now bearing the authorization of the legislature. The MCA included provisions clearly designed to prevent the Supreme Court's decision in Hamdan v. Rumsfeld from being repeated. First, the MCA provides the Commissions it creates with an exception to the Article 21 UCMJ requirement for military tribunals other than courts-martial to comply with the law of war,15 including specifically the Geneva Conventions.16 Second, the MCA amended Article 36(b) of the UCMJ to provide MCA Commissions with an exception to the requirement for uniformity to the extent practicable between the Commission's rules and the rules applicable at courts-martial.17
Other important provisions of the MCA that are relevant to this discussion include an explicit limit of MCA Commission jurisdiction to alien unlawful enemy combatants18 and an additional requirement that all lawful enemy combatants be tried at courts-martial convened under the UCMJ.19 Congress also defined 28 ‘law of war and other offenses’20 which it determined to be ‘declarative of existing law’21 and ‘traditionally ... triable by military Commission.’22 In April 2007, Hamdan was charged under the MCA.23
|
2. The Decision to Grant an Article 5 Status Determination |
|---|
|
TopAbstract1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
In response to a defence motion challenging its jurisdiction, Hamdan's military Commission ruled that he was entitled to a judicial status determination pursuant to Article 5 of the of the GPW.24 Hamdan had claimed that he was entitled to lawful combatant25 or prisoner of war status under Article 4 of the GPW.26 Government attorneys responded that Hamdan was not entitled to a status determination ‘because the [GPW] was implemented by the [MCA] and does not apply’.27 In the alternative, the Government argued ‘that [Hamdan's] October 2004 [Combatant Status Review Tribunal] hearing satisfies it’.28
A. The Applicability of the GPW
Hamdan's Commission began its analysis of the issue by stating that the United States is bound by the GPW, specifically Article 5.29 Although Article 5 of the GPW only applies to an international armed conflict,30 the Commission did not analyse the facts supporting the applicability of the GPW to Hamdan. This was a curious omission given the earlier Supreme Court decision only that ‘at a minimum’ Common Article 3 applies to the conflict between the United States and al Qaeda.31 However, this aspect of the Commission's decision can best be understood by reference to the new charges instituted against Hamdan under the MCA.
At the time the Supreme Court issued its decision in Hamdan v. Rumsfeld, Hamdan was charged only with conspiracy with other members of al Qaeda and for activities in furtherance of that conspiracy.32 When charges were instituted for trial by a MCA Commission, Hamdan was also charged with unlawful hostilities in support of Taliban or al Qaeda forces arrayed against the United States and its coalition partners in Afghanistan.33 In Hamdan v. Rumsfeld, the US government's position in the Supreme Court was that the conflicts with al Qaeda and the Taliban in Afghanistan were distinct.34 If that argument is accurate, then Hamdan now appears to be charged with having participated in both conflicts.
Had Hamdan been charged with delivering weapons only to other al Qaeda members for use against US forces, government attorneys could have at least plausibly asserted that Hamdan's actions were solely in support of the conflict between the United States and al Qaeda, a conflict the Supreme Court found to be only a Common Article 3 conflict at a minimum.35 To maintain the argument, the government would need to successfully demonstrate that hostilities by al Qaeda in Afghanistan were independent from the Taliban's defence of Afghanistan, a conflict the United States recognized as an international armed conflict subject to the Geneva Conventions.36 Therefore, by including the Taliban and US coalition partners in this specification, the government created the presumption that Hamdan's alleged acts were on behalf of Afghanistan and hence part of an international armed conflict subject to the full requirements of the GPW. Of course, one could also argue that any belligerency in Afghanistan against the United States and coalition invasion was presumptively part of the international armed conflict there.37 This includes the Article 5 requirement to conduct a hearing to determine the status of a detainee ‘[s]hould any doubt arise’ as to whether the detainee falls into one of the categories in Article 4.38
B. The Article 5 GPW Requirement for a Status Determination
Article 5 of the GPW requires doubt regarding a detainee's status before there is any requirement for a hearing. What constitutes doubt for Article 5 purposes is not clear from the GPW or its commentaries.39 What is clear is that the meaning of Article 5's ‘any doubt’ language ‘is itself not free from doubt’.40 As with the applicability of the GPW and Article 5, Hamdan's Commission did not discuss the factual basis of any doubt regarding Hamdan's status. In response to the Government's argument that Hamdan had done nothing to trigger the status determination requirement of Article 5, the Commission responded that ‘the Commission finds that his claim of entitlement to [prisoner of war] status, made by his counsel before this tribunal, is sufficient to do so’.41 Given the ‘any doubt’ language, it is difficult to disagree with the Commission on this point. However, it would appear necessary that such a claim involve at least a plausible factual basis for asserting that a defendant is entitled to prisoner of war status.42
Hamdan's Commission next considered whether his status had been ‘determined by a competent tribunal’.43 After examining the findings of Hamdan's Combatant Status Review Tribunal (CSRT), the Commission concluded that it could not accept them as a complete determination of Hamdan's prisoner of war status because
[t]he CSRT did not address [Hamdan's] entitlement to Prisoner of War Status, cite or discuss the Geneva Conventions or Article 5, or address the lawfulness of the accused's participation in hostilities. [The CSRT had been tasked] to make a different determination: whether the accused was an "enemy combatant" [as defined in Deputy Secretary of Defence and Secretary of the Navy guidance], for purposes of continuing his detention.44
Even if the CSRT had made a determination of the lawfulness of Hamdan's alleged belligerency, according to the Commission, Hamdan was entitled to ‘a second status determination ... by a judicial officer for detainees the Detaining Power proposes to punish’.45
To reach the latter conclusion requiring a second, judicial, status determination, the Commission reviewed commentaries both to the Geneva Conventions and to its Additional Protocols.46 The Commission cited noted commentator Howard S. Levie's treatise for the proposition that Article 5 required not only an initial status determination by a ‘competent tribunal’, but also ‘a further judicial tribunal — but only if the detaining power proposes to try him for an offense arising out of the hostilities’.47 Other than Levie's work, the Commission cited the highly regarded Geneva Convention commentaries of Jean S. Pictet, and International Committee of the Red Cross commentary to the Additional Protocols.48 Neither of the latter provisions cited by the Commission expressly supports the proposition of a second status determination.49 Both simply emphasize the necessity of a careful determination of a detainee's status to prevent an arbitrary deprivation of the detainee's rights in any later prosecution for a criminal offense arising from his alleged belligerency.
Nothing in Article 5 or any other provision of the GPW supports a requirement for a second status determination. While a second status determination prior to criminal prosecution might be appropriate as a matter of policy, at most a US military tribunal might cite a need to ensure its compliance with the Article 130 prohibition against ‘wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention’50 to support its conducting a second inquiry into a detainee's status.51 Given the Commission's determination that Hamdan had not had a status determination, its decision regarding a second determination was both unwise and unnecessary.52 In any case, the Commission's decision to make an Article 5 determination of Hamdan's status was consistent with international humanitarian law.
The Commission's ultimate decision on Hamdan's status, however, does not appear to be consistent with the requirements of the GPW. The Commission based its determination of Hamdan's status on one alleged act of unlawful belligerency against the United States and coalition forces.53 It thereby avoided the issue of how to categorize Hamdan's association with and actions on behalf of al Qaeda. A strict reading of Articles 4 and 5 of the GPW appears to require a complete analysis of a suspected combatant's status rather than focusing on a single belligerent act. A complete and thorough inquiry is necessary because even an otherwise lawful combatant can arguably commit a single act of unlawful belligerency.54 This error, however, is not the only one to be found in the Commission's decisions.
|
3. The Decision's Inconsistency with the MCA and US National Law |
|---|
|
TopAbstract1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
A. The Geneva Conventions under US Law
Determining that the GPW applies to at least one of Hamdan's alleged belligerent acts does not mean that its requirements are relevant to the jurisdiction of Hamdan's Commission as a matter of US national law. It is important to emphasize the US Supreme Court's reliance on a domestic statute to find Common Article 3 applicable in Hamdan v. Rumsfeld. The Court did not reach the question of whether the Geneva Conventions create rights enforceable in US courts under the US Constitution. In fact, the Court avoided prior case law suggesting that they do not55 by relying on the fact that Article 21 of the UCMJ authorized jurisdiction only over ‘offenders and offences that by statute or by the law of war may be tried’56 by military tribunals other than courts-martial.57 Hence, the Court's decision in Hamdan v. Rumsfeld cannot be read to support the direct incorporation of the Geneva Conventions in US national law. It was central to the Court's reasoning that the Conventions provided a rule of decision because the Court interpreted a national statute to require compliance with them.
There are three aspects of the relationship of US national law with international law that are critical to the analysis of the Commission's decisions. First, although the US Constitution declares treaties to be part of the ‘supreme law of the land’,58 US courts must distinguish between treaties that apply in national tribunals by their terms (denominated self-executing) and those that require implementing legislation (non-self-executing).59 Second, under the US Constitution and case law it is clear that treaties are treated as equivalent to national legislation and therefore later-in-time domestic legislation prevails in US national courts over treaties or customary international law to the extent they are inconsistent (hereinafter the ‘later-in-time rule’).60 Finally, US courts interpret national law to be consistent with applicable international law whenever possible (hereinafter the ‘Charming Betsy rule’).61
Because of its importance to the issues analysed here, the Charming Betsy rule requires closer examination. In its decision in the Charming Betsy case, the US Supreme Court announced the principle that ‘an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’.62 This language appears to require only clear inconsistency with or implicit repudiation of an international legal obligation. Later manifestations of this doctrine in US law have varied. In the case of Whitney v. Robinson63 the Supreme Court stated that courts must ‘construe [treaties and statutes] so as to give effect to both, if that can be done without violating the language of either.’64 In a more recent case, the US Supreme Court declared that ‘[a] treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed’.65 The Restatement (Third) of Foreign Relations Law of the United States distils these authorities to say that
[a]n act of Congress supersedes an earlier rule of international law or provision of an international agreement as law of the United States if the purpose of the act to supersede the rule or provision is clear or if the act and the earlier rule or provision cannot fairly be reconciled.66
In a thoughtful article on the MCA, Professor Carlos M. Vázquez argues that the MCA cannot be viewed to have generally superseded the Geneva Conventions.67 He bases this conclusion on the legislative history, in which numerous legislators stated their belief that the MCA complied with or implemented the Geneva Conventions,68 and on a lower US federal court case applying a much more stringent and, Vázquez admits, mistakenly recited view of the Charming Betsy rule.69 The short response to Professor Vázquez's conclusion is that he failed to consider the effect of the aforementioned amendment to Article 21 of the UCMJ excepting MCA Commissions from any general requirement to comply with the law of war.70 This is arguably a clear expression that Congress did not desire the terms of the Conventions to prevail over the terms of the MCA.71 Furthermore, Professor Vázquez assumed that the Geneva Conventions were self-executing under US law.72 The assumption is questionable, especially when compared against several provisions of the MCA.73 In addition to these flaws, Professor Vázquez's general conclusion does not address whether specific aspects of the MCA might be so inconsistent with the Geneva Conventions that the two cannot be simultaneously applied ‘without violating the language of either’.74 As will be shown below, the MCA's definitions of lawful and unlawful combatants cannot be reconciled with all categories of prisoner of war status granted by Article 4 of the GPW.
B. Unlawful Combatant Status under the MCA
The MCA is not silent on the issue of lawful and unlawful combatants, nor did it incorporate the GPW by reference. The MCA expressly defines both lawful and unlawful combatants in mutually exclusive terms. A combatant is either a lawful combatant as defined in the MCA or an unlawful combatant. There are no other categories. The MCA defines lawful combatants narrowly to include only roughly the first three categories of those qualifying for protected prisoner of war status under GPW75 including ‘regular forces of a state’; ‘members of a militia, volunteer corps, or organized resistance movement belonging to a state party ... 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’; and ‘regular armed forces [.of a.] government ... not recognized by the US’.76 It defines unlawful combatants to include ‘a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)’.77 This includes a person who has been so determined by a CSRT.78
Given that the MCA defines lawful and unlawful combatants without completely incorporating or even referring to the GPW or other international humanitarian law, how could the Commission determine that Articles 4 or 5 were applicable or a status determination pursuant to their terms required? The answer lies only partly in the Commission's ruling on that matter. The remainder is found in the Commission's decision regarding its jurisdiction to proceed against Hamdan.
C. The Commission's Errors — Selectivity, Assumptions and Cursory Conclusions
In its decision to grant an Article 5 status determination, the Commission found that it was Congress’ intent to provide Hamdan with an Article 5 review of his status.79 In making this finding, the Commission selectively looked to the legislative history of the MCA rather than the provisions of the MCA itself.80 After finding that Congress believed CSRTs to satisfy any Article 5 status review requirement, the Commission went on to determine that Hamdan's CSRT failed to provide a GPW determination of prisoner of war status.81 Effectively, the Commission concluded that Congress intended to provide an Article 5 procedure without satisfying the substantive requirements of Article 5, a perfect intent imperfectly executed. The Commission completely failed to consider the effect of the MCA's definitions of lawful and unlawful combatants in relation to the Article 5 question.
In the Commission's ruling regarding its jurisdiction over Hamdan, which included its decision on Hamdan's status, the basis of the Commission's decisions becomes clear. Relying on the Charming Betsy rule, the Commission summarily ‘assumes that Congress intended to comply with the International Law of Armed Conflict when it enacted the Military Commissions Act and chose this definition of unlawful enemy combatant’.82 Putting aside the issue of whether this assumption should have been a judicial decision resulting from thorough legal analysis rather than an assumption, it is almost wholly without merit. First, it is impossible to reconcile this assumption with the fact that Congress specifically and narrowly defined lawful and unlawful combatants in the MCA without reference to the GPW, including only three of the eight categories of persons qualifying for prisoner of war status under Article 4. Second, the Commission's assumption fails to account for Congress having removed the requirement that MCA Commissions comply generally with the law of war under Article 21 of the UCMJ. Finally, the Commission failed to consider a provision of the MCA that makes a CSRT determination of unlawful enemy combatant status ‘dispositive for purposes of jurisdiction’ of a MCA Commission.83 Although Hamdan's CSRT failed to determine the lawfulness of his alleged belligerent acts, finding him only to be an ‘enemy combatant’,84 the fact that Congress made certain CSRT results dispositive of a detainee's status for purposes of MCA Commission jurisdiction undermines any notion that the MCA expressly authorized or even implicitly permitted the Commission to conduct a second status determination, let alone a status determination governed by the GPW rather than the MCA. Given these provisions, there is every reason to believe that Congress intended the terms of the MCA alone to govern Hamdan's status and the Commission's jurisdiction.85
The inconsistency of the Commission's Charming Betsy assumption with the MCA should have been most clear when it considered the bases for Hamdan's assertion of prisoner of war status. After finding that Hamdan could not qualify for lawful combatant status under the three MCA lawful combatant categories, the Commission proceeded to briefly consider six bases for ‘lawful combatant/Prisoner of War’ status claimed by Hamdan under the GPW.86 Had the Commission determined that Hamdan satisfied one of these six categories, it would have squarely faced the issue of whether Hamdan could or should be considered a lawful combatant even though he not only failed to meet the MCA definitions of a lawful combatant, but also thereby satisfied the MCA definition of an unlawful combatant. Recall that the definition of unlawful combatant includes anyone who is ‘not a lawful enemy combatant’, to include ‘a person who is part of Taliban, al Qaeda or associated forces’.87 Clearly, based on these major and irreconcilable differences between the Geneva Conventions and the MCA, Hamdan's Commission should have applied the later-in-time rather than the Charming Betsy rule. Had it done so, the Commission should have determined that it need only apply the terms of the MCA to decide the issues of Hamdan's status and its jurisdiction.
|
4. Conclusion |
|---|
|
TopAbstract1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
One can respect and even applaud Hamdan's Commission for being predisposed to apply the Geneva Conventions. Such a benevolent predisposition, however, cannot be allowed to replace sound legal analysis. It is unfortunate that the MCA cannot be completely reconciled with the Geneva Conventions on this issue. On the other hand, by creating complete harmony between national and international law where there is not, the Commission relieved pressure on US policy makers to change law that is at best an incomplete attempt to comply with international humanitarian law.88 This pressure will undoubtedly return during later stages of Hamdan's Commission proceedings, particularly when issues regarding his rights at trial are litigated. When it does, the issues raised then must receive more careful analysis than the issues underlying the Commission's decisions with respect to its jurisdiction over Hamdan.
|
Notes |
|---|
|
TopAbstract1. Introduction2. The Decision to...3. The Decision's Inconsistency...4. ConclusionNotes |
|---|
1 Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat. 2600. The provisions of the MCA establishing the military Commissions are codified at 10 USCA
948a-950w (West Supp. 2007). Citations to the MCA in the US Code will be to the annotated code (USCA) published by Thompson/West Publishing because the published official US Code has not yet been updated to incorporate the Military Commissions Act. 
2 Dep't of Defense, MC Form 458, Charge Sheet pertaining to Salim Ahmed Hamdan 5 (5 April 2007), available at http://www.defenselink.mil/news/May2007/Hamdan_Charges.pdf (visited 1 January 2008) (hereinafter Second Hamdan Charge Sheet).
4 Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2759 (2006).
5 Second Hamdan Charge Sheet, supra note 2; see also Charges pertaining to Salim Ahmed Hamdan, available at http://www.defenselink.mil/news/Jul2004/d20040714hcc.pdf (visited 1 January 2008) (hereinafter First Hamdan Charge Sheet).
6 Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833 (13 November 2001), reprinted in K.J. Greenburg and J.L. Dratel (eds), The Torture Papers: The Road to Abu Ghraib (New York: Cambridge University Press, 2005) 25–28.
7 First Hamdan Charge Sheet, supra note 5, at 2.
8 Hamdan v. Rumsfeld, 126 S. Ct. 2749.
9 Ibid., at 2791. The UCMJ is codified at 10 USC 801–946 (2000).
10 Hamdan v. Rumsfeld, 126 S. Ct. at 2794–2796 (citing 10 USC 821 (2000)).
11 Of the four Geneva Conventions, the two most relevant to military Commissions are the Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 6 UST 3316, 75 UNTS 135 (hereinafter GPW), and the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, 75 UNTS 287.
12 GPW, supra note 11, Art. 3(1)(d).
13 Hamdan, 126 S. Ct. at 2795–2796.
15 Section 4(a)(2) of the MCA amended 10 USC 821 by adding ‘This section does not apply to a military Commission established under chapter 47A [that is, a military Commission established by the MCA] of this title.’ Military Commissions Act of 2006, Pub. L. No. 109-366, 4(a)(2), 120 Stat. 2600, 2631.
16 In addition to the provision at supra note 15, 10 USCA 948b(g) provides ‘[n]o alien unlawful enemy combatant subject to trial by military Commission under this chapter may invoke the Geneva Conventions as a source of rights.’ Also, section 5(a) of the MCA states that ‘[n]o person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or a current or former officer, employee, member of the Armed Forces, or other agent of the United States is a party as a source of rights in any court of the United States or its States or territories.’ 4(a)(2), 120 Stat. at 2631–2632. These provisions effectively foreclose the ability to mount any parallel or collateral legal challenge the Commissions on the basis of the four Geneva Conventions. See C.A. Bradley, ‘The Military Commissions Act, Habeas Corpus, and the Geneva Conventions’, 101 American Journal of International Law (2007) 322.
17 Section 4(a)(3)(B), 120 Stat. at 2631.
18 10 USCA 948b(a), 948c (West Supp. 2007).
20 Ibid., 950b(a). The offences are defined at ibid., 950v(b).
22 Ibid., 950p(a). Congress also left open the possibility that other, undefined law of war offences could be tried. The jurisdiction provision states that Commission may ‘try any offence made punishable by this chapter or the law of war when committed by an alien unlawful enemy combatant before, on, or after September 11, 2001.’ Ibid., 948d(a) (emphasis added).
23 Second Hamdan Charge Sheet, supra note 2.
24 United States v. Hamdan, Ruling on Defence Motion for an Article 5 Status Determination (17 December 2007), at http://www.ccrjustice.org/files/Hamdan_Article5Decision_12_07.pdf (visited 1 January 2008) (hereinafter Hamdan Art. 5 Ruling).
25 The author recognizes the problematic nature of the lawful/unlawful combatant distinction in international humanitarian law and its use by the United States and others. For a fairly thorough review of the issue, compare M.D. Maxwell and S.M. Watts, ‘Unlawful Enemy Combatant’: Status, Theory of Culpability, or Neither’, 5 Journal of International Criminal Justice (2007) 19, with Y. Dinstein, The Conduct of Hostilities under the Law of Armed Conflict (Cambridge: Cambridge University Press, 2004), 27–54.
26 Hamdan Art. 5 Ruling, supra note 24, at 1. The author could not locate the defence motion or the factual assertions supporting Hamdan's claims of entitlement to prisoner of war status.
30 GPW, supra note 11, Art. 2.
31 Hamdan, 126 S. Ct. at 2795–2796.
32 First Hamdan Charge Sheet, supra note 5, at 2–3.
33 Charge I, Specification 2 of Hamdan's current charges reads: ‘In that Hamdan, a person subject to trial by military Commission as an alien unlawful enemy combatant, did, in Afghanistan, on or about November 24, 2001, willfully enter into an agreement with one or more known or unknown members of a1 Qaeda or Taliban to commit the offense of Murder in Violation of the Law of War, a substantive offense subject to trial by military Commission, to wit; the murder of United States or Coalition service members serving as pilots, crew or passengers of United States or Coalition military aircraft, knowing the unlawful purpose of said agreement and joining into said agreement willingly with the intent to further said unlawful purpose, knowingly commit an overt act in order to accomplish some object or purpose of said agreement, to wit, transporting on ore more SA-7 surface to air missiles, to be ultimately used to unlawfully and intentionally kill said United States or Coalition service members’. Second Hamdan Charge Sheet, supra note 2, at 4 (emphasis added). The government also used this conduct as the basis of charges regarding material aid to terrorism and conspiracy to commit terrorism. Ibid., at 4–6.
34 Hamdan v. Rumsfeld, 126 S. Ct. at 2794–2795.
36 See Memorandum from George W. Bush, President of the United States, to Richard Cheney, Vice President of the United States, et al., Humane Treatment of al Qaeda and Taliban Detainees para. 2(b) (7 February 2002), in The Torture Papers, supra note 6, at 134.
37 Note that the status of the conflict at the time of Hamdan's capture is not in doubt. However, the status of the conflict after the assumption of authority over Afghanistan by the Karzai government in December 2001 is not clear and would require detailed factual analysis for detainee's captured thereafter.
38 GPW, supra note 11, Art. 5.
39 See Dinstein, supra note 25, at 235.
41 Hamdan Art. 5 Ruling, supra note 24, at 2.
42 As stated earlier, the author has been unable to locate Hamdan's motion claiming prisoner of war status to determine the factual basis.
43 GPW, supra note 11, Art. 5.
44 Hamdan Art. 5 Ruling, supra note 24, at 3.
47 Ibid. (citing H.S. Levie, The Code of International Armed Conflict (Dubbs Ferry, NY: Oceana, 1986), at 305–306).
50 GPW, supra note 11, Art. 130.
51 Such an argument assumes, of course, that at unlawful combatant need not receive the same trial rights as a prisoner of war.
52 To be clear, a judicial status determination is required by Art. 45(2) of Additional Protocol I, before trial for the offence if possible. However, that provision of the Protocol was not relied on or even addressed by the Commission except through the use of the Additional Protocol commentaries. The United States is not a party to Additional Protocol I and so the Commission's decision to use Additional Protocol commentaries to reach an unnecessary legal conclusion seems particularly inappropriate. This is especially true when one recognizes that to the extent this provision might be deemed part of customary international law, it is subject to being superseded by later-enacted domestic legislation as discussed at part 3, infra.
53 United States v. Hamdan, On Reconsideration: Ruling on Motion to Dismiss for Lack of Jurisdiction 6–7 (19 December 2007) (unpublished decision, on file with author) (hereinafter Hamdan Jurisdiction Ruling) In its decision, the Commission summarily dismisses government arguments regarding Hamdan's al Qaeda affiliations by stating that ‘the Commission does not reach them here. Having found that the accused drove a vehicle to and towards the battle field, containing missiles that could only be used against the United States and its co-belligerents, the Commission finds that the accused meets the first half of the definition of unlawful enemy combatant.’ Ibid.
54 See Dinstein, supra note 24, at 31 (stating that if an otherwise lawful combatant ‘acts beyond the pale of lawful combatancy’ then he could lose his combatant immunity and be prosecuted under the enemy's domestic legal system for any hostile acts); see also ibid., at 203 (discussing the problematic nature of an act of perfidy committed by a combatant's feigning civilian status, thereby in Dinstein's view becoming an unlawful combatant for acts committed in that feigned status). This discussion goes to the heart of the problem underlying the ‘unlawful combatant’ formulation as discussed in the authorities cited at supra note 24. For example, if Hamdan was a lawful combatant but committed this single act of attempted missile delivery in feigned civilian status, then it is unclear whether this act would even be an offence under any nation's domestic law. Furthermore, under Art. 37(1) of Additional Protocol I, acts of perfidy include feigned civilian status but do not violate the law of war unless they result in death, injury, or capture of the enemy.
55 This was suggested in reference to the 1929 Geneva Conventions in a footnote to the Supreme Court's opinion in the case of Johnson v. Eisentrager, 339 US 763, 789 n. 14 (1950).
56 UCMJ, 10 USC 821 (2000) (emphasis added).
57 Hamdan, 126 S. Ct. at 2794.
58 US Constitition, Art. VI, 2.
59 This doctrine has its origins in Foster v. Neilson, 27 US 253 (1829) and is included in Restatement (Third) of Foreign Relations Law of the United States 111 (1987).
60 See Whitney v. Robertson, 124 US 190, 194 (1898); Head-Money Cases, 112 US 580, 599 (1884) (holding that ‘so far as a treaty made by the United States with any foreign nation can become the subject of judicial cognizance in the courts of this country, it is subject to such acts as Congress may pass for its enforcement, modification, or repeal’); see also Restatement (Third) of Foreign Relations Law of the United States 115(1)(a) (1987) (stating that ‘[a]n act of Congress supersedes an earlier rule of international law or a provision of an international agreement as law of the United States if the purpose of the act to supersede the earlier rule or provision is clear or if the act and the earlier rule or provision cannot be fairly reconciled’).
61 Murray v. The Schooner Charming Betsy, 6 US 64, 81 (1804) (stating that ‘an Act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’). This canon of statutory construction is frequently referred to as the ‘Charming Betsy canon’.
64 Ibid., at 194 (emphasis added).
65 Trans World Airlines v. Franklin Mint Corp., 466 US 243, 252 (1984).
66 Restatement (Third) of Foreign Relations Law of the United States 115(1)(a) (1987) (emphasis added).
67 C.M. Vázquez, ‘The Military Commissions Act, the Geneva Conventions, and the Courts: A Critical Guide’, 101 American Journal of International Law (2007) 73, at 81.
69 Ibid., at 81 (citing United States v. Palestine Liberation Org., 695 F. Supp 1456 (S.D.N.Y. 1988)).
70 See supra note 15 and related discussion. Vázquez appears to treat the MCA only as specific statutory authority for a military tribunal authorized ‘by statute’ under 10 USC 821 prior to its amendment and does not address the effect of the amendment. See Vázquez, supra note 67, at 76. It would be easy to miss this amendment given its location in the MCA.
71 Or perhaps more accurately, it is possible Congress wanted to ensure its interpretation of the Conventions, as implemented in the MCA, would prevail over a Commission's or Court's interpretation of what the Conventions require.
72 Vázquez, supra note 67, at 76.
73 See supra note 16 and related discussion; Head-Money Cases, 112 US at 599, supra note 60; see also Bradley, supra note 16, at 339 (arguing that even assuming the Geneva Conventions were self-executing under US law, the MCA changed that result).
74 See notes 59–61 and related discussion supra.
75 Compare 10 USCA 948a(2) (West Supp. 2007) with GPW, supra note 11, Art. 4(A)(1)–(3). Careful readers will note that the MCA defines these categories more narrowly than parallel GPW provisions and does not include another potential category of lawful combatants, specifically Art. 4(A)(6).
77 Ibid., 948a(1)(i) (emphasis added).
79 Hamdan Art. 5 Ruling, supra note 24, at 3.
82 Hamdan Jurisdiction Ruling, supra note 53, at 5.
83 10 USCA 948d(c) (West Supp. 2007).
84 Hamdan Art. 5 Ruling, supra note 24, at 3.
85 Hamdan's Commission also skilfully avoided 10 USCA 948b(g) which provides that ‘[n]o alien unlawful enemy combatant subject to trial by military Commission under this chapter may invoke the Geneva Conventions as a source of rights’ by noting that it had not yet determined whether Hamdan was ‘subject to trial by military Commission.’ Hamdan Art. 5 Ruling, supra note 24, at 4.
86 Hamdan Jurisdiction Ruling, supra note 53, at 7–8. Hamdan asserted claims under the GPW Art. 4(A)(1)–(6). Ibid.
87 10 USCA 948a(1)(i). Even more interestingly, the inclusion of Taliban and al Qaeda ‘forces’ in the definition of unlawful combatants in the MCA was seemingly misunderstood or ignored by the Commission, which stated ‘[t]here is no legislative finding that any specific group is unlawful.’ Hamdan Jurisdiction Ruling, supra note 53, at 10.
88 The fact that Congress included 10 USCA 948b(f), stating that ‘[a] military Commission established under this chapter is a regularly constituted court, affording all the necessary judicial guarantees which are recognized as indispensable by civilized peoples' for purposes of common Article 3 of the Geneva Conventions,’ is evidence that Congress may not have considered the possibility that the full GPW might apply to detainees potentially subject to MCA Commissions, such as Taliban forces.
CiteULike 
Connotea 
Del.icio.us What's this?
| ||||||||||||||||||||||||||||||||||||||||||||||||