Eran Shamir-borer, Revisiting Hamdan v. Rumsfeld's Analysis of the Laws of Armed Conflict

• Citation: Vol. 21 No. 2
• Publication year: 2007

REVISITING HAMDAN V. RUMSFELD'S ANALYSIS OF THE LAWS OF ARMED CONFLICT

Eran Shamir-Borer^*

In Hamdan v. Rumsfeld, the Supreme Court carried forward the international legal debate over the nature and regulation of armed conflicts between state and non-state actors that go beyond the territory of the state. According to the prevailing interpretation of the Hamdan decision held by both scholars and the current Administration, the Court identified such conflicts as armed conflicts not of an international character, which are governed by Common Article 3 of the Geneva Conventions. One of the implications of this interpretation is that al Qaeda detainees are entitled only to the minimal protections enshrined in Common Article 3. This Article challenges this interpretation by arguing that the Court deliberately avoided determining both the nature of the conflict in which the petitioner was captured and the nature of the applicable legal regime. While the Court indeed applied Common Article 3 to this conflict, it regarded Common Article 3 as a minimum rather than necessarily as an exhaustive legal regime. The boundaries that the Court marked for future debate are therefore much wider than understood by many thus far. The Article ends with a call to the Administration to revisit its interpretation of the decision and consider whether al Qaeda detainees are legally entitled to further protections beyond those afforded in Common Article 3.

INTRODUCTION

One of the most troubling post-September 11th questions for states and international law scholars has been the classification and regulation of ongoing hostilities between state and non-state actors that amount to armed conflict and extend beyond the territory of the state.¹States and scholars argue that traditional concepts of the laws of armed conflict, distinguishing between inter- state and intra-state armed conflicts²and subjecting them to distinct legal regimes,³no longer capture the entire spectrum of armed conflicts witnessed today. Traditional concepts are inadequate in meeting the challenges posed by new global realities.⁴

In the recent decision of Hamdan v. Rumsfeld,⁵which considered the legality of the military commissions established by the Administration to try non-U.S. citizens captured in the context of United States' "War Against Terrorism,"⁶the Supreme Court made a significant contribution to this debate. Although the thrust of the decision rests on U.S. law, the Court also engaged in a profound analysis of the laws of armed conflict and made several important observations relevant to the nature and regulation of armed conflicts between state and non-state actors that go beyond the territory of the state.⁷On the basis of this analysis, a majority of the Court concluded that the military commissions lack power to proceed, as their structure and procedures violate both U.S. law and the Geneva Conventions.⁸

The prevailing reading of both scholars and, more significantly, the Administration of Hamdan's analysis of the laws of armed conflict has been three-fold: first, the Court concluded that there is an armed conflict between the United States and al Qaeda; second, the armed conflict is not of an international character; and, third, this conflict is governed by Common Article

3 of the Geneva Conventions.⁹For example, in a memorandum issued shortly after the Hamdan decision and addressed to the senior echelon of the Department of Defense and the U.S. Armed Forces, Deputy Secretary of Defense Gordon England noted that "[t]he Supreme Court has determined that Common Article 3 . . . applies as a matter of law to the conflict with Al

Qaeda."¹⁰Subsequently, in a message to the Congress upon transmittal of the draft Military Commissions Act of 2006, the President explained that "[t]he Act also addresses the Supreme Court's holding that Common Article 3 of the Geneva Conventions applies to the conflict with al Qaeda."¹¹This understanding of the Court's ruling may obviously have far-reaching practical implications, as demonstrated in a recent comment by John Bellinger, the Legal Adviser to the Secretary of State:

The U.S. Supreme Court has decided that the U.S. conflict with al Qaida is governed by Common Article 3. Because the Court had found that the conflict with al Qaida is not one between nations, but instead a Common Article 3 conflict, al Qaida detainees are not entitled to POW [prisoner-of-war] protections under the Third

[Geneva] Convention.¹²

This Article questions this common reading of Hamdan. By carefully and critically reading the fewer than four pages of the Majority Opinion in which the Court discussed the applicability of the Geneva Conventions, I seek to ascertain what has been decided by the Court and, perhaps even more importantly, what has been left open for future debate. I argue that, while the Court applied Common Article 3 to the conflict(s) in Afghanistan, it did not determine the nature of the conflict(s), nor did it exhaustively determine the applicable legal regime. Therefore, the boundaries that the Court marked for future debate are much wider than commonly understood thus far. As a result, the Administration's embracing of Common Article 3 as the exhaustive legal regime governing the conflict with al Qaeda and the detention of individuals captured in the course of this conflict may prove to be premature.

I. BACKGROUND

In 2001, militia forces in Afghanistan captured Salim Ahmed Hamdan, the petitioner, during the hostilities that erupted with the U.S. invasion.¹³The militia forces turned him over to the U.S. military, which transported him in

2002 to the detention facility in Guantanamo Bay.¹⁴In 2003, the President determined that "there is reason to believe that [Hamdan] was a member of al

Qaida or was otherwise involved in terrorism directed against the United States."¹⁵Accordingly, he was designated for trial before a military commission (the "military commission").¹⁶Hamdan filed habeas corpus and mandamus petitions, challenging the authority of the military commission to try him on two grounds: first, the military commission, whose substantive authority was limited to violations of the law of war, lacked authority to try the offence of conspiracy with which Hamdan was charged; second, the procedures followed by the military commission violated basic principles of military and international law, including the defendant's right to see and hear the evidence against him.¹⁷

The District Court for the District of Columbia granted in part Hamdan's petition for habeas corpus and stayed the commission's proceedings.¹⁸It concluded that, according to Geneva Convention III, Hamdan was entitled to prisoner-of-war status unless, as required by Article 5 of the Convention, a competent tribunal decided otherwise.¹⁹In addition, the District Court found that the military commission violated the Uniform Code of Military Justice²⁰(UCMJ) as military commission procedures permitted the exclusion of the accused from commission sessions and the withholding of evidence from him.²¹The Court of Appeals for the District of Columbia reversed, concluding that Geneva Convention III was not "judicially enforceable"²²and that, in any event, it did not apply to Hamdan.²³The Court of Appeals further decided that the military commission violated neither the UCMJ nor the U.S. Armed Forces regulations intended to implement the Geneva Conventions.²⁴

II. HAMDAN'S ANALYSIS OF THE LAWS OF ARMED CONFLICT

After rejecting several jurisdictional arguments raised by the government, the Supreme Court moved to examine the legality of the military commission.²⁵The Court left unresolved whether the President maintains inherent constitutional powers to convene military commissions absent congressional authorization. A determination of this question could be avoided as the Court had already decided in Ex parte Quirin²⁶that such congressional authorization could be read in Article 15 (Article 21 today) of the UCMJ under circumstances of "controlling necessity."²⁷In any event, when the President convenes military commissions, he must comply with the limitations set by Congress in the UCMJ, notwithstanding the Authorization for Use of Military Force of 2001²⁸and the Detainee Treatment Act of 2005.29,30

The Court found such limitations in Article 21 of the UCMJ, which provides that the UCMJ is not intended to deprive the jurisdiction of military commissions "with respect to offenders or offenses that by statute or by the law of war may be tried by military commissions."³¹As no statute directly regulates the operation of military commissions, the Court relied on the reference to the "law of war" to examine the legality of the rules specified for Hamdan's trial against the laws of armed conflict.³²In its discussion of the "law of war," the Court made several interesting conclusions regarding how to classify the conflict with al Qaeda and which international legal regime should govern it.³³

The Court first addressed the question of whether the Geneva Conventions apply to the conflict during which Hamdan was captured. The Court of Appeals accepted the Administration's position that the conflict in Afghanistan was composed of two distinct armed conflicts: one between the United States and the Taliban (fighting on behalf of Afghanistan), and one between the

United States and al Qaeda.³⁴The Geneva Conventions applied to the former by virtue of Common Article 2, as Afghanistan was a state party to the Geneva Conventions.³⁵However, they did not apply to the latter, as al Qaeda was a non-state actor (thus excluded from Common Article 2, dealing with "cases of . . . armed conflict which may arise between two or more of the High

Contracting Parties") and the conflict with it was "international in scope" (thus excluded from Common Article 3, which has been interpreted to concern intra- state armed conflicts only, given its reference to "armed conflict not of an international character occurring in the...