A Treaty We Can Live with

Résumé du livre

The recent Supreme Court decision in Hamdan v. Rumsfeld determined, in part, that Common Article 3 to the Geneva Conventions applies to the armed conflict with al Qaeda and the Global War on Terror. In deciding Hamdan, the Court looked at Article 75 of Additional Protocol I to the Geneva Conventions to amplify the fundamental guarantees with respect to military commissions. However, Article 75 is inapposite as a matter of treaty law because it deals with international armed conflicts. Interestingly, the Court and the Bush Administration have overlooked Additional Protocol II, which specifically applies to non-international armed conflicts. This paper examines the development of the current U.S. detainee policy and the existing policy toward treatment of detainees since the Hamdan decision and analyzes the relevance of Additional Protocol II, ultimately concluding with three recommendations. The United States, by implementing these recommendations, would advance both its national strategic objectives and provide an international law foundation for detainee treatment that will be supported and understood by its allies. Advocating an expanded application of Additional Protocol II will also go a long way in restoring the U.S. role as a leader with respect to international law in the international community.