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D. C. Circuit Finds Geneva Conventions Not Judicially Enforceable, Allows Resumption of Military Commission Proceedings

Published online by Cambridge University Press:  10 March 2017

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Type
Contemporary Practice of the United States Relating to International Law
Information
American Journal of International Law , Volume 99 , Issue 4 , October 2005 , pp. 895 - 898
Copyright
Copyright © American Society of International Law 2005

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References

1 Hamdan v. Rumsfeld, No. 04-5393 (D.C. Cir. July 15, 2005); see Neil, A. Lewis, Ruling Lets U.S. Restart Trials at Guantanamo, N.Y. Times, July 16, 2005, at A1 Google Scholar; R. Jeffrey, Smith, Detainees Trials Are Upheld, Wash. Post, July 16, 2005, at A1.Google Scholar Recent opinions of U.S. circuit courts and the Supreme Court can be accessed through <http://www.uscourts.gov/courtlinks/>.

2 See John, R. Crook, Contemporary Practice of the United States, 99 AJIL 262 (2005).Google Scholar

3 Babington, Charles & Baker, Peter, Roberts Confirmed as 17th Chief Justice, Wash. Post, Sept. 30, 2005.Google Scholar Some questioned Judge Roberts’s participation in the case while senior administration officers were interviewing him for possible appointment to the Supreme Court. Vandehei, Jim, Judge Heard Terrorism Case as He Interviewed for Seat, Wash. Post, Aug. 17, 2005, at A4.Google Scholar

4 Geneva Convention [No. 3] Relative to the Treatment of Prisoners of War, Aug. 12,1949,6 UST 3316, 75 UNTS 135.

5 Under Article 5 of the Third Geneva Convention, in case of doubt as to whether a person is entitled to prisoner of war status, “such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent Tribunal.”

6 Slip op. at 8.

7 Id. at 9.

8 Geneva Convention [No. 3] Relative to the Treatment of Prisoners of War, Aug. 12,1949, 6 UST 3316, 75 UNTS 135.

9 [Editor’s Note: Geneva Convention Relative to the Treatment of Prisoners of War, July 27,1929, 118 LNTS 343.]

10 Slip op. 10-11.

11 Id. at 11.

12 Id. at 13.

13 Id. at 14.

14 Judge Williams disagreed with this element of the majority’s analysis. In a short separate opinion, he concluded that “a conflict between a signatory and a non-state actor is a conflict ‘not of an international character.’ In such a conflict, the signatory is bound to Common Article 3’s modest requirements of ‘humane []’ treatment and ‘the judicial guarantees which are recognized as indispensable by civilized peoples.’“ Id. at [22] (Williams, J., concurring).

15 Slip. op. at 15-16.

16 Supreme Court Is Asked to Block Terror Tribunals, N.Y. Times, Aug. 9, 2005, at A6 Google Scholar; Guantanamo Trial Should Proceed, U.S. Tells Justices, Wash. Post, Sept. 8, 2005, at A10.Google Scholar