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Hamdan and Common Article 3
Jun-29-06 09:31 pm
There has been some debate in the blogosphere about the significance of the Hamdan decision's discussion of Common Article 3 of the Geneva Conventions. Marty Lederman has consistently argued that the Court's decision means that all the protections established by Common Article 3 would apply to the U.S. conflict with al Qaeda. Of course, he recognizes that :
the Court did not hold that all of the protections of the Geneva Conventions apply to suspected Al Qaeda detainees, or that they are entitled to all of the protections of POWs. It held "merely" that the minimum baseline protections of Common Article 3 are binding -- which is a floor far, far higher than the practices of this Administration.
Peter Spiro, over at Opinio Juris seems to dispute Lederman:
Over at Scotusblog Marty Lederman asserts that the Court’s finding on common article 3 spills over to dispatch with interrogation practices in other detainee contexts. That may be true at some level, but on my read the decision itself doesn’t vindicate that claim in court. The Court seems careful to hang the common article 3 argument on the hook of UCMJ article 21, which incorporates the laws of war for purposes of establishing the commissions (see page 64 of the slip). You don’t have that hook when it comes to detentions outside the context of the commissions. So while the Court is now on record as finding the Geneva Conventions to apply, and that will obviously weigh heavily in various deliberative contexts, it’s not clear to me that Court gets the last word on this, nor that the decision “basically resolves the debate,” as Marty puts it.
My read is this:

First, the Court did conclude that Common Article 3 applies to the U.S. in its war with al Qaeda-- as long as that conflict is taking place in a state that is party to the Geneva Conventions. That would mean that all the protections under Common Article 3 would be binding on the United States, as a matter of international law.

Second, the Court did rule that Common Article 3 applies as a matter of U.S. law in the Hamdan case because the UCMJ incorporates the laws of war for military commissions.

Third, the Court did not say that the Geneva Conventions in general, or Common Article 3 in particular, would be self-executing. It was unnecessary for the Court to reach that question.

So, what this means is this: Lederman is correct in that the Supreme Court "basically revolves the debate" about how U.S. courts will understand the applicability of Common Article 3 to America's war with al Qaeda, when the Geneva Conventions are a proper source of law for the Court to apply. In other words, because the Court has not said that Article 3 is self-executing, it is possible that in a future case-- say one dealing with torture-- the court may never get to the question of whether Common Article 3 applies.  Of course, if a court were to rule that Common Article 3 were self-executing or that the protections of Common Article 3 have become customary international law, Hamdan would indicate that all the obligations contained in Common Article 3 would apply in that case as a matter of U.S. law.

About the editor:

Anthony Clark Arend

Professor

Commentary and analysis at the intersection of international law and politics.

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» Learn more about the M.A. in International Law and Government at Georgetown University.


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