Sunday, July 17, 2005
The Importance of Geneva Common Article 3
Jack is of, course, correct that the most immediately important aspect of Friday's Hamdan decision is the court's holding that Congress has authorized (at least certain types of) military commissions. In addition, Julian Ku, over at Opinio Juris, correctly flags, as very significant, the court's holding that the 1949 Geneva Conventions are not judicially enforceable in federal court—even on a habeas petition alleging that the petitioner is being held "in custody in violation of . . . treaties of the United States," as provided in 28 U.S.C. § 2241(c)(3). (For an interesting argument about why such a holding might be wrong, see this casenote by Stephen Vladeck.)
Two Comments --
1) Also of interest...
Christopher S. Kelley, RETHINKING PRESIDENTIAL POWER - THE UNITARY EXECUTIVE AND THE GEORGE W. BUSH PRESIDENCY, paper prepared for the 63rd Annual Meeting of the Midwest Political Science Association (April 2005); available *HERE*.
(Dr. Kelley did his PhD disertation on this topic.)
2) I strongly concur with your observations concerning Geneva Common Article 3, and you've zeroed in on an important point here that I've tried to bring out in my amicus efforts IRT the Guantanamo detainees.
The 2002.02.07 Bush memo on "Humane Treatment of Taliban and al Qaeda Detainees" states:
"I hereby reaffirm the order previously issued by the secretary of defense to the United States Armed Forces requiring that the detainees be treated humanely and, to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Geneva."
That assertion is an obvious fraud. Military necessity has an exact meaning in the law of war - here's the entry from the DOD Dictionary of Military and Associated Terms:
"military necessity (DOD, NATO) The principle whereby a belligerent has the right to apply any measures which are required to bring about the successful conclusion of a military operation and which are not forbidden by the laws of war."
But the laws of war absolutely forbid attacks on persons or places who are out of action / undefended -- no such attack could ever be lawful. Hence, the Bush memo is literally saying that we will obey Geneva except when we violate Geneva.
Further, the word necessity has a meaning, both in ordinary usage and in law, and that meaning is NOT "whatever one thinks is a good idea". There is a distinction between prudence and necessity, and the only real necessity here is to remove these outrageous criminals from the offices they have disgraced forthwith and see to it that every last one of them is prosecuted to the full exent of the law for their CRIMES.
PS: And keep up the great work Marty!
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Why should Geneva Convention apply to a rag-tag group of mercenaries who really don't represent any country, but a cause?Post a Comment
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