JURIST Guest Columnist David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001), now at Northwestern University School of Law, says that in Hamdan v. Rumsfeld the justices of the US Supreme Court have demonstrated how fundamental tenets of international law amplify American values and are deeply embedded in American law…

In a 5-3 decision on June 29th reversing the Court of Appeals (D.C. Circuit) in Hamdan v. Rumsfeld, the Supreme Court upheld the Geneva Conventions of 1949 as enforceable U.S. law. A plurality of the justices also relied on international law to strengthen another key finding in the case. They restored the critical partnership that international law has with federal law. The Supreme Court justices demonstrated how fundamental tenets of international law amplify American values and are deeply embedded in U.S. law. No other decision of the Supreme Court in recent years has so forthrightly reaffirmed American obligations under international law.

A plurality consisting of Justices Stevens, Souter, Breyer and Ginsburg found that “conspiracy” cannot be charged as a violation of the law of war [David Scheffer, Why Hamdan is Right About Conspiracy Liability, JURIST Forum, March 30, 2006] and that such a charge is not triable by a military commission. The four justices confirmed what the court had recognized in Ex parte Quirin, 317 U.S., at 29 (1942), namely that “commissions convened during time of war but under neither martial law nor military government may try only offenses against the law of war.” The justices did not find “conspiracy” identified anywhere in U.S. law as a war crime or “in either the Geneva Conventions or the Hague Conventions—the major treaties on the law of war.” Yet conspiracy to commit war crimes (rather than the overt acts themselves) is what Salim Ahmed Hamdan was belatedly and solely charged with by military lawyers in July 2004. The justices cautioned that “the incremental development of common-law crimes by the judiciary is . . . all the more critical when reviewing developments that stem from military action.” The mere intention to commit a war crime that would constitute a conspiracy charge falls short of the overt acts that a military commission would have the authority under U.S. law to prosecute.

In a significant confirmation of the scope of the law of war that international and military lawyers have long used since the post-World War II Nuremberg trials, the plurality wrote that, “international sources confirm that the crime charged here is not a recognized violation of the law of war.” They observed that “none of the major treaties governing the law of war identifies conspiracy as a violation thereof,” and that the only conspiracy charges recognized by international war crimes tribunals are conspiracy to commit genocide and conspiracy in a common plan to wage aggressive war. They cited supporting Nuremberg precedents and two Appeals Chamber decisions of the International Criminal Tribunal for the Former Yugoslavia, which has adopted a “joint criminal enterprise” theory of liability as a species of liability for the substantive offense and not as a stand-alone crime. In a footnote criticizing Justice Thomas’ dissent, the four justices remarked, “That conspiracy is not a violation of the law of war triable by military commission does not mean the Government may not, for example, prosecute by court-martial or in federal court those caught ‘plotting terrorist activities like the bombing of the Khobar Towers.'”

The second international law tenet, which is found in the majority’s decision, is that the procedures governing Mr. Hamdan’s trial by commission violate the Geneva Conventions of 1949, of which the United States has been a state party since 1955. The five justices, including Justice Kennedy, corrected an erroneous reading by the Court of Appeals (of the District of Columbia) of a footnote in Johnson v. Eisentrager, 339 U.S., at 789, n. 14 (1950) which the lower court believed meant that “the 1949 Geneva Convention does not confer on Hamdan a right to enforce its provisions in court.” 415 F. 3d, at 40. The Supreme Court found that the rights conferred on Hamdan by the Geneva Conventions are indisputedly “part of the law of war” and that Article 21 of the Uniform Code of Military Justice requires that a military commission’s authority lies in compliance with the law of war.

That conclusion permitted the majority to reach the mega-issue looming throughout the many years of the Hamdan litigation. Does Common Article 3 of the Geneva Conventions apply to Hamdan’s case? The District Court had concluded yes, but the Court of Appeals, with the vote of Judge John Roberts (who now, as Chief Justice of the Supreme Court, had to recuse himself from the case), had concluded that Common Article 3 does not apply because al Qaeda, a terrorist organization which Mr. Hamdan is alleged to have been a member of prior to and until his capture shortly after 9/11, is not a “High Contracting Party” of the Geneva Conventions. That is a critical view because Common Article 3 requires that in a “conflict not of an international character occurring in the territory of one of the High Contracting Parties,” there are still minimum protective provisions that must be provided to “persons…placed hors de combat by…detention.” Hamdan would qualify for that designation provided Common Article 3 applies overall. One key protective measure prohibits “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.” That means the military commissions must meet that standard.

The Supreme Court found that the reading of Common Article 3 by the Court of Appeals and the Government was flawed, based on a view that it must only apply to internal conflicts, a reading long ago abandoned in international law. The Common Article 3 conflict is one that is not between nations per se (hence, literally not inter-national), but it is a conflict that may be either internal or transnational. The key is that the legal status of the entities opposing each other may be very divergent, namely a state vs. a rebel group. This common article in all of the four Geneva Conventions provides blanket protection regardless of the character of the conflict. The majority thus found that Common Article 3 applies to the Afghanistan theater of conflict and that Hamdan, captured in that country in late 2001, must be tried by a court with the judicial guarantees “recognized as indispensable by civilized peoples.” The justices also turned to the commentary on the Fourth Geneva Convention to find that a “regularly constituted court” includes “ordinary military courts,” which in American practice are courts-martial.

Finally, in a remarkable foray into customary international law, the plurality of four linked the Common Article 3 judicial guarantees to the protections described in Article 75 of the 1977 Protocol I to the Geneva Conventions. That article was intended to amplify in greater detail the Common Article 3 guarantees and provide “fundamental guarantees” for detainees who may not earn prisoner of war status under the Third Geneva Convention. Prior to the Bush Administration, the United States (which was deeply engaged in its drafting) viewed Article 75 as embodying cus
tomary international law, and Washington had never identified that provision as a reason for not ratifying Protocol I. The plurality found that the various provisions of the order establishing the procedures of the military commissions “dispense with the principles, articulated in Article 75 and indisputably part of the customary international law, that an accused must, absent disruptive conduct or consent, be present for his trial and must be privy to the evidence against him.”

The majority emphasized that despite “a great degree of flexibility” afforded by Common Article 3, it still has “requirements” that must be honored. And the military commission “convened to try Hamdan does not meet those requirements.”

Justice Kennedy declined to join the plurality on the conspiracy and Article 75 opinions because he found enough illegality in the military commissions under U.S. law. He also had some “observations” regarding Justice Stevens’ opinion regarding Common Article 3, but he still joined it.

It was a good day for international law, and a good day for American jurisprudence. When the majority found that “the Executive is bound to comply with the Rule of Law that prevails in this jurisdiction,” they did so with the Rule of International Law foremost in their deliberations.

David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001), is a law professor and director of the Center for International Human Rights at Northwestern University School of Law. He co-authored an amicus brief filed by Northwestern Law’s Center for International Human Rights before the Supreme Court in Hamdan v. Rumsfeld.
——–