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Washington-The U.S. Supreme Court historically has not been very good on international law, despite paying lip service to it, say a number of scholars and others. But what a difference a case makes. The high court has not exactly shone when it faced law-of-war questions, they add. But what a difference a case makes. The case was last week’s decision in Hamdan v. Rumsfeld, No. 05-184, in which a 5-3 majority held that the military commissions established by President Bush to try enemy combatants charged in the war on terror violated federal law and the four Geneva Conventions signed in 1949. And although it is a decision with potentially far-reaching implications for federal court jurisdiction, separation of powers and military justice, the Hamdan ruling also is “amazing” and “breathtaking,” according to international law and human rights law scholars, for its interpretation and application of the Geneva Conventions and customary international law. “It is a powerful embrace of fundamental principles of international law that relate to the law of war and to due process,” said David Scheffer, director of the Center for International Human Rights at Northwestern University School of Law and former U.S. ambassador at large for war crimes issues. “U.S. law has recognized these standards in the Uniform Code of Military Justice [UCMJ],” he added. “The justices were able to smartly link U.S. law with international law in a way that demonstrated the actual wisdom of our domestic law.” But just how far that link may extend beyond military commissions for designated enemy combatants is already provoking intense debate. Binding law In Hamdan, the majority, led by Justice John Paul Stevens, rejected a ruling by the U.S. Circuit Court of Appeals for the District of Columbia that the Geneva Conventions were not judicially enforceable, and that even if they were, Salim Hamdan, the Yemeni chauffeur for Osama bin Laden captured in Afghanistan, was not entitled to their protections. The appellate court panel, which consisted of then-Judge, now-Chief Justice, John G. Roberts Jr., accepted the Bush administration’s contention that the conventions did not apply to the armed conflict during which Hamdan was captured-the U.S. war with al-Queda, a war distinct from the war with the Taliban in Afghanistan. The conventions’ full protections, according to the government, apply only to declared war or armed conflict between two or more of the “High Contracting Parties,” signatories of the conventions, and al-Queda is not a high contracting party. But Stevens, in this key part of the majority decision, said it was not necessary to decide that debate because at least one provision of the Geneva Conventions applied even if the relevant conflict were not between signatories-so-called Common Article 3. All four Geneva Conventions contain an identical Article 3, which extends certain minimal protections to individuals in a conflict in the territory of a signatory. It requires that those who have laid down their arms or who are out of the conflict because of injury or sickness must be treated humanely. It also requires-critical to Hamdan-that those individuals be tried by a “regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” before any sentences are imposed. “The provision is part of a treaty the United States has ratified and thus accepted as binding law,” wrote Justice Anthony M. Kennedy in a concurring opinion. “By Act of Congress, moreover, violations of Common Article 3 are considered ‘war crimes,’ punishable as federal offenses, when committed by or against United States nationals and military personnel. There should be no doubt, then, that Common Article 3 is part of the law of war as that term is used in [the UCMJ].” But Article 3 doesn’t define what a “regularly constituted court affording all judicial guarantees” is, acknowledged the Hamdan majority. Convention commentary and customary international law, according to the majority, define it to include ordinary military courts. In the United States, ordinary military courts are courts-martial governed by the UCMJ, said the court. The Bush administration’s military commissions, in both structure and in key procedures, such as barring a defendant’s presence at trial and admitting unsworn and hearsay evidence, deviated, without justification or necessity, from those governing courts-martial, ruled the court, and that violated the UCMJ. Writing for the dissenters, Justice Clarence Thomas said that the president’s interpretation of Common Article 3, argued in the court by Solicitor General Paul Clement, was “reasonable and should be sustained.” He also said the Geneva Conventions are not judicially enforceable because they contemplated diplomatic measures as the exclusive enforcement mechanism. “Here you had a situation where Congress had spoken about the manner in which enemy prisoners can be tried and, in doing so, had incorporated the laws of war into domestic law,” said Elisa Massimino, Washington office director of Human Rights First. “You also had an administration that rejected that framework completely. The court is saying there is a framework of law in both treaty and domestic statute and you can’t act outside of that. “So all the debates that have raged here since 9/11 on whether the Geneva Conventions apply and which ones-those questions are answered in large part by the court affirming the applicability of Article 3. That’s the floor. There is a baseline rule below which you cannot go in treatment and trial of prisoners.” How much protection? Massimino and others said some critics, particularly in Congress, may claim the court is saying that international law trumps the president. But, they said, it is Congress that has incorporated international law into domestic law in this situation. “There is an ongoing, fairly public debate between [Justice Antonin] Scalia and [Justice Stephen G.] Breyer about reference to international law and standards in Supreme Court decisions,” noted Massimino. “But I think at least when you have, as it is here, law so clearly incorporated in a domestic statute, those standards are going to be embraced by a majority of the court.” A bare majority, conceded Massimino. “We know what Roberts would have said here. Kennedy’s opinion is really important. He underscores that this standard is incorporated in the law and it’s binding.” But the court did not state clearly whether all of Article 3′s protections apply or just the one addressed by the court-no punishment without judgment by a regularly constituted court affording all of the judicial guarantees recognized as indispensable by civilized peoples. “Common Article 3′s language is extremely capacious; it’s like our due process clause,” said international law scholar Paul Stephan of the University of Virginia School of Law. “The court had to pour content into it and the one that did all of the work in Hamdan was uniformity: The commission process can’t be substantially different from courts-martial. Not special rights, but common practices are the baseline.” And, by applying Article 3 to al-Queda, the court may have opened the door to claims by detainees held outside of Guant�namo Bay. Northwestern’s Scheffer said: “The court embraced more firmly than ever before the importance of complying with Common Article 3 of the Geneva Conventions. It is this sort of catchall article that we are fully obligated to conform with. It says even if you’re in a noninternational conflict or conflict that doesn’t fit the parameters of the rest of this convention, you must guarantee certain fundamental rights to detainees and one of them is a fair trial.” Other Article 3 rights that now apply, according to some scholars, include freedom from cruel treatment and torture and from outrages upon personal dignity, in particular humiliating and degrading treatment. “There will now be a case brought under other Geneva Convention provisions trying to assert further rights,” predicted Michael Greenberger, law professor and director of the University of Maryland Center for Health and Homeland Security. “It’s not clear whether Article 3 provides other rights that can be vindicated. It may entitle [detainees] to all sort sorts of procedures including possibly determination whether they are properly held as enemy combatants. Stevens drops a footnote noting Hamdan argues he is entitled to a hearing on whether he is a prisoner of war. That would go more to the quality of the detention than to whether they can be tried before a military tribunal.” Ironically, the Pentagon early last month reportedly had decided-against the wishes of military lawyers and State Department officials-not to reinstate Common Article 3 in its revised Army field manual on interrogation. In 2002, President Bush reversed decades of U.S. military policy by suspending Geneva Convention provisions for captured al-Queda and Taliban fighters. “For one year I was the United Nations’ international expert on terrorism and human rights,” said Robert Goldman of American University Washington College of Law. “What I put in my reports was: However you cut it, you can’t put people beyond protection of Common Article 3. No one can be in a limbo. “We are the ones who pushed for these kinds of protections,” he added, referring to North Vietnam’s treatment and torture of U.S. prisoners during the Vietnam War. “I don’t know what was in the minds of the justices when they decided this case, but I think they understand the Geneva Conventions are treaties to which we are a party and they served us well in the past. To invoke these particular provisions is a proper use of whether you call it customary international law, which is part of our law, or something else.”

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