Are You There, Geneva? It's Me, Guantanamo
Petty, Keith A., Case Western Reserve Journal of International Law
This essay examines the application of the Geneva Conventions at the Guantanamo Bay Military Commissions. International and domestic commentators have long criticized the military commissions for failing to adhere to the laws of armed conflict enshrined in Geneva, referring to Guantanamo as a "legal black hole." This criticism, however, is misplaced. Since the attacks of September 11, 2001, the legal framework for prosecuting suspected terrorism detainees has evolved. The underlying reason for this is a considerable gap in the Geneva protective regime for combatants who do not satisfy the legal requirements of prisoners of war (GCIII) or civilians (GCIV). Nonetheless, the Military Commissions Act of 2006 codifies the U.S. application of the laws of war to Guantanamo accused. As the pre-trial litigation in the case United States v. Hamdan demonstrates, the Geneva Conventions have been faithfully applied by the military commissions contributing to a trial process that is full and fair.
On May 21, 2009, President Obama declared that military commissions play an important role in prosecuting law of war offenses. This speech effectively revived the controversial Guantanamo Bay justice system. He stated, "[m]ilitary commissions have a history in the U.S. dating back to George Washington and the Revolutionary War. They are an appropriate venue for trying detainees for violations of the laws of war." (1) Nonetheless, commentators maintain that the military commissions fail to comply with constitutional, international, and military legal obligations. In practice, however, the commissions have been at the cutting edge of these disciplines, particularly the law of armed conflict.
This essay examines the application of the law of armed conflict in military commission jurisprudence. In order to fully understand current practice it is necessary to discuss U.S. policy regarding the applicability of the Geneva Conventions to terrorist detainees at various times: immediately following September 11, 2001, the 2006 Supreme Court decision in Hamdan v. Rumsfeld as it relates to Common Article 3 of the Conventions, and the law of war aspects of the Military Commissions Act of 2006. Once the preliminary legal framework is established, this essay examines two pretrial rulings in the commission case United States. v. Hamdan, each dealing with the applicability of law of war provisions to Guantanamo accused. This essay concludes by questioning whether the laws governing armed conflicts of the past must be updated to provide greater protection to parties to modern conflicts. Only then will there be sufficient legal parameters set for all parties engaged in the struggle against terrorism.
II. A DEVELOPING LEGAL FRAMEWORK
A. The Pre-Hamdan Approach to Geneva
After the terrorist attacks of September 11,2001, the U.S. was faced with the daunting task of determining the legal framework that applied to the perpetrators of these terrible crimes. When the U.S. led coalition invaded Afghanistan in October 2001, there was no longer any question that the laws of armed conflict applied to the "global war on terror." (2) The U.S. government, however, determined that al-Qaeda terrorists and members of the Taliban captured during the course of this conflict did not meet the requirements of prisoners of war and, as such, were not entitled to the protections of the Third Geneva Convention Relative to the Treatment of Prisoners of War (GCIII). (3) Moreover, former President Bush stated in a memorandum,
I also accept the legal conclusion of the Department of Justice and determine that common Article 3 of [the Geneva Conventions] does not apply to either al Qaeda or Taliban detainees, because, among other reasons, the relevant conflicts are international in scope and common Article 3 applies only to "armed conflict not of an international character." (4)
The Bush administration's policy was not without merit. …