Scholarship Repository University of Minnesota Law School Articles Faculty Scholarship 2007 Hamdan and Common Article 3: Did the Supreme Court Get It Right? Fionnuala Ní Aoláin University of Minnesota Law School, [email protected] Follow this and additional works at: https://scholarship.law.umn.edu/faculty_articles Part of the Law Commons Recommended Citation Fionnuala Ní Aoláin, Hamdan and Common Article 3: Did the Supreme Court Get It Right?, 91 MINN. L. REV. 1523 (2007), available at https://scholarship.law.umn.edu/faculty_articles/73. This Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in the Faculty Scholarship collection by an authorized administrator of the Scholarship Repository. For more information, please contact [email protected]. Article Hamdan and Common Article 3: Did the Supreme Court Get It Right? Fionnuala Ni Aolfiint Following the atrocities of September 11, 2001, the United States has activated a highly focused and high-profile set of le- gal, political, and military responses directed at perceived threats to its security at home and abroad. The legal responses to the "war on terror" have been extensive and central to this undertaking. In asserting the primacy of the executive's rights to unilaterally shape and define the contours of domestic and international law, the United States has invoked the ire of other states, international organizations, and critics at home. Common concerns include executive overreaching, the aban- donment of basic principles of due process, transparency, and executive accountability. Courts, both national and interna- tional, tend to give considerable deference to states when politi- cal or military crises are at hand. They usually avoid direct le- gal confrontation with executive and legislative assertions of authority and, if required to adjudicate on the validity of legal responses to a perceived threat, demonstrate timidity and cau- tion.1 The Hamdan v. Rumsfeld2 decision departs significantly from that general pattern, as do (to lesser degrees) the Su- t Professor of Law Transitional Justice Institute, University of Ulster, Dorsey & Whitney Chair in Law, University of Minnesota Law School. Thanks to Oren Gross for prompting my completion of the ideas contained in this Arti- cle. The thoughtful and incisive comments provided by Professor David Kretzmer were particularly helpful, as were those provided by Dr. Shane Darcy. My thanks to Adam Hansen for research assistance in the completion of this work. Copyright © 2007 by Fionnuala Ni Aoliin. 1. OREN GROSS & FIONNUALA Ni AOLAIN, LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE 17-109 (2006). 2. 126 S. Ct. 2749 (2006). In Hamdan, "the Court concludes that peti- tioner may seek judicial enforcement of the provisions of the Geneva Conven- tions because 'they are . part of the law of war."' Id. at 2845 (Thomas, J., dissenting) (quoting id. at 2794 (majority opinion)). 1523 1524 MINNESOTA LAWREVIEW [91:1523 preme Court's earlier decisions in Rasul v. Bush3 and Hamdi v. 4 Rumsfeld. What is also significant about Hamdan is that interna- tional legal norms are central to its analytical core and to the conclusions the Court draws regarding the application of inter- national norms to state actions. Many scholars have examined the Court's conclusions in Hamdan and, in particular, its em- phasis on the role of the legislative branch in the decision- making process.5 This Article focuses its attention on the Court's assessment and subsequent application of international humanitarian law to the issues raised in Hamdan. In doing so, I start from the position that the majority was generally right in its instincts about the relevance of humanitarian law and the appropriateness of using humanitarian law norms to an- swer the questions posed in Hamdan. Nonetheless, I suggest that the Court's reasoning, in all the opinions offered, illus- trates a certain clumsiness of application and a dearth of ana- lytical rigor, leaving some very important legal matters unre- solved. Humanitarian law pervades the reasoning of the Hamdan opinions. Particularly striking are the Court's views on the en- forceability of the Geneva Conventions and specifically that of Common Article 3.6 Here the Court determined that the Ge- neva Conventions are incorporated by Article 21 of the Uniform 3. 542 U.S. 466 (2004). 4. 542 U.S. 507 (2004); see also Tim Otty & Ben Olbourne, The US Su- preme Court and the 'War on Terror Rasul and Hamdi, 5 EUR. HUM. RTS. L. REV. 558 (2004) (discussing the Court's opinions in Rasul and Hamdi). 5. See, e.g., Julian Ku & John Yoo, Hamdan v. Rumsfeld: The Functional Case for Foreign Affairs Deference to the Judicial Branch, 23 CONST. COM- MENT. 179 (2006); Cass R. Sunstein, Clear Statement Principles and National Security: Hamdan and Beyond, 2006 SUP. CT. REV. (forthcoming 2007), avail- able at http://ssrn.com/abstract=922406. 6. Common Article 3 refers to language in a specific provision-Article 3--common to all four Geneva Conventions. See Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field art. 3, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Conven- tion I]; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea art. 3, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Convention II]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 3, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Convention III]; Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Convention IV]. 2007] HAMDAN AND COMMON ARTICLE 3 1525 Code of Military Justice into U.S. law. 7 Humanitarian law is also a source of considerable disagreement between the Jus- tices: on the enforceability of the Geneva Conventions, a five-to- two split; on the applicability of Common Article 3 to the war with al Qaeda, a five-to-two split; on the meaning of Common Article 3, a five-to-three split.8 This Article will explore what Hamdan tells us about Common Article 3, particularly where applied in the context of a contested war in which the legal status of the conflict has po- litical consequences. Specifically, the status of conflict is fun- damental to assessing both the legitimacy of the conflict and the methods and means used to fight the war. This exploration has two aspects. First, this Article will address whether the Court correctly identified and applied the Common Article 3 standard. Second, this Article will assess the Court's articula- tion of the boundaries of a treaty provision that states have his- torically applied inconsistently. I suggest that one important meta-narrative to this exploration is the idea that the Supreme Court's decision to apply Common Article 3 advances an anti- thesis to the rhetoric and policy of the current administration: that there is a "gap" in the law regulating state interface with other states and with non-state entities in the context of the war on terror.9 I. THE SCOPE OF COMMON ARTICLE 3 Common Article 3 of the 1949 Geneva Conventions was the first provision of an international agreement attempting to regulate the conduct of parties during a civil or internal con- 7. See Hamdan, 126 S. Ct. at 2794 (plurality opinion) ("[C]ompliance with the law of war is the condition upon which the authority set forth in Arti- cle 21 is granted."); id. at 2780-81 (holding that the phrase "law of war" incor- porates at least two sources of international law, the Hague Conventions and the 1949 Geneva Conventions). 8. See Hamdan, 126 S. Ct. 2749. As David Glazier notes, the Court "based its critical holding that [Common Article 3] applied on a simplistic dis- cussion occupying little more than a single page in a majority opinion that ran some forty pages overall." David Glazier, Full and Fair by What Measure?: In- ternational Law Standards Regulating Military Commission Procedure, 25 B.U. INT'L L.J. (forthcoming 2007) (manuscript at 3), available at http://ssrn .comabstract=896643. 9. I explore this idea further in a forthcoming article, Fionnuala Ni Aoliin, The No-Gaps Approach to Parallel Application in the Context of the War on Terror, 40 ISR. L. REV. (forthcoming June 2007). 1526 MINNESOTA LAW REVIEW [91:1523 flict.10 During all of the negotiations preceding the conclusion of the Geneva Conventions of 1949, the substance of what might be contained in Common Article 3 was the most controversial." The committee charged with its formulation met twenty-five times before reaching an agreement on its content.12 As a lead- ing authority of the time, Col. Gerald Draper, correctly identi- fies: The Geneva Conventions, in their general approach to the method of protecting and securing good treatment for war victims, adopted the solution of eschewing any direct attempt to legislate for the conduct of actual hostilities. This solution has been brought into Article 3. The scheme of this article is to secure the minimum protection and hu- manitarian treatment for the victim of internal conflicts. At the same time the legal position of the Parties engaged in the internal conflict is left unaffected. The transactions of the Diplomatic Conference at Geneva in 1949 indicate that, without that express saving, Article 3 would not have been agreed.13 This compromise was intended therefore to ensure as much protection as possible to victims of non-international armed conflict, but sought entirely to avoid giving the parties involved in such conflicts legitimacy or status.