Status of Detainees in Non-International Armed Conflict, and their Protection in the Course of Criminal Proceedings: The Case of Hamdan v. Rumsfeld

John P. Cerone
July 14, 2006

I. Introduction

This Insight supplements the January 2002 Insight, "Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings."[1] That Insight considered the application of the international law of armed conflict[2] to the 9/11 attacks and the ensuing conflict(s) in Afghanistan. Since that time, US courts have reached different conclusions as to whether, and the extent to which, the law of armed conflict is applicable to that conflict, and whether the law of armed conflict forms part of the law applicable in US courts. In June 2006, the US Supreme Court in the case of Hamdan v. Rumsfeld found the international law of armed conflict to be judicially cognizable in US courts, at least insofar as the Court has construed it to be incorporated by reference in an Act of Congress. The Court applied part of that law to the conflict in Afghanistan and to the treatment of an individual detained in the course of that conflict.[3]

The January 2002 Insight proceeded on the assumption that the October 2001 US invasion of Afghanistan, and the treatment of individuals detained therein, would be governed by the law of international armed conflict. The Supreme Court in Hamdan did not go that far, holding that, at a minimum, the treatment of Hamdan, a Yemeni national and alleged Al-Qaeda member apprehended in Afghanistan, was governed by Common Article 3 of the Geneva Conventions, the core of the law of non-international armed conflict. The Court held, inter alia, that the military commission before which Hamdan was being prosecuted lacked power to proceed because the establishment of the commission and the procedures governing his trial violated the standards of Common Article 3, which - as part of the law of war - was incorporated by reference in the Uniform Code of Military Justice.

II. The Law of Non-International Armed Conflict

Within the corpus of the law of armed conflict, a distinction is drawn between those norms that regulate international armed conflict and those applicable to non-international armed conflict. Embedded in the classical system of international law, a system resting on the sovereign equality of states and the related principle of nonintervention, the law of armed conflict is predominantly concerned with international armed conflict (conflict between states). Since non-international conflict refers to a dispute other than one between states, it was traditionally not the concern of international law. Further, the paradigm case of non-international armed conflict is internal conflict, e.g., a civil war. The principle of non-intervention prevented international regulation of such conflicts.

Thus, the Hague Conventions of 1899 & 1907 are expressly limited to interstate conflicts.[4] Similarly, Common Article 2 of the 1949 Geneva Conventions provides that "the present Convention shall apply to all cases of - armed conflict which may arise between two or more of the High Contracting [state] Parties."However, the adoption of the 1949 Conventions also yielded the first treaty provision expressly regulating non-international armed conflict. Common Article 3 of the Conventions applies to "armed conflict[s] not of an international character occurring in the territory of one of the High Contracting Parties."It is the only substantive provision in the Conventions that applies in non-international armed conflict, and protects only against the most serious abuses.[5]

While neither the Hague Conventions nor the Geneva Conventions define the phrase "armed conflict," definitions for both international and non-international armed conflict have been set forth in international jurisprudence. According to the jurisprudence of one international criminal court, an armed conflict exists "whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State."[6]

A peculiar feature of the law of non-international armed conflict is its application to non-state groups. As noted above, the traditional subject of international law is the state. But by its terms, Common Article 3 of the Geneva Conventions binds both states and non-state parties to non-international conflicts.

Another significant feature of the law of non-international armed conflict is the absence of the combatant's privilege. In international armed conflict, lawful combatants[7] are entitled to engage in acts which would otherwise be regarded as criminal, e.g. murder, so long as those acts do not violate the law of armed conflict. They are thus immune from prosecution for such acts. In addition, upon capture, they are entitled to prisoner-of-war treatment. This privilege exists only in international armed conflict. Thus, non-state combatants in a non-international armed conflict may be prosecuted for all hostile acts, including violations of ordinary domestic law, irrespective of whether they have violated any norms of international law. In addition, they cannot be entitled to prisoner of war status, since such status does not exist in the law of non-international armed conflict.

The only treaty-based[8] law of armed conflict binding on the US in situations of non-international armed conflict is Common Article 3. Hamdan claimed in particular that the military commission proceedings against him violated Common Article 3(d), which 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."

Does the law of armed conflict govern US conduct in the war on terror? Hamdan was captured in Afghanistan in November 2001 in the course of the armed conflict between the US and the then-government of Afghanistan. The law of armed conflict clearly applies to that conflict, and the US government accepts this position.[9] In the Supreme Court, the US had taken the position that there were in fact two simultaneous conflicts occurring in Afghanistan. One conflict was between the US and the Taleban (fighting on behalf of Afghanistan, a state party to the Geneva Conventions), and a separate conflict with Al-Qaeda. It regarded the former as an international armed conflict to which the Geneva Conventions were applicable. However, it asserted that the Conventions, including Common Article 3, could not be applied to the conflict with Al-Qaeda. The US took the position that Common Article 3 applies only to internal armed conflicts. Because the conflict with Al-Qaeda was transnational in nature, it was neither interstate nor internal.[10] Essentially, the US posited a gap in the application of the Conventions - that there were some armed conflicts to which no part of the Conventions could apply. This position was endorsed by the majority in the DC Circuit in its July 2005 judgment in Hamdan.[11]

This position stood in stark contrast to most international authorities, including the International Court of Justice and the International Criminal Tribunal for the former Yugoslavia, which interpret the phrase "conflict not of an international character" as being residual, covering any armed conflict that is not inter-state. These authorities have also held that the standards of Common Article 3 have evolved into a baseline of legal protection applicable in all armed conflicts, whether international or non-international.[12]

The Supreme Court had a range of options before it. If it viewed the situation in Afghanistan as one single international armed conflict, the entire regime of the 1949 Conventions would be applicable. It would then have had to deal separately with the question of Hamdan's individual status in order to determine which protections he would receive under the Conventions. If it viewed it as a single non-international armed conflict, e.g. by reasoning that the US intervened in an ongoing non-international armed conflict with the consent of the de jure government, or if it took the view that there was a separate conflict with Al-Qaeda, it would have to determine whether Common Article 3 applies to such conflicts.

Ultimately, the Court chose not to take a position on whether there were two separate conflicts, and refrained from characterizing the nature of the conflict(s). It adopted the position that "there is at least one provision of the Geneva Conventions that applies here even if the relevant conflict is not one between signatories" - Common Article 3.[13] The Court reasoned that the "term 'conflict not of an international character' is used here in contradistinction to a conflict between nations," essentially adopting the residual view of Common Article 3. It found that this provision "affords some minimal protection, falling short of full protection under the Conventions, to individuals associated with neither a signatory nor even a nonsignatory [state] who are involved in a conflict 'in the territory of' a signatory. The latter kind of conflict is distinguishable from the conflict described in Common Article 2 chiefly because it does not involve a clash between nations (whether signatories or not). In context, then, the phrase 'not of an international character' bears its literal meaning."

The Court thus confirmed that the law of armed conflict applies to the conflict in Afghanistan. The holding of the Court on the applicability of the law of armed conflict is limited to that particular conflict, and does not encompass any other situation arising in the war on terror.

III. Application of the Law of Armed Conflict in US Courts

A separate issue considered by the Court was whether the law of armed conflict, and the Geneva Conventions in particular, formed part of US applicable law.

International law generally does not dictate how international obligations are to be implemented within the domestic sphere. In the absence of a specific obligation in a treaty to alter some facet of a state's internal legal framework, it is usually up to each state to determine how to give effect to its international obligations. That being the case, there is no established international legal standard governing how international law is to be received in the municipal sphere. As a result, there is a great variety among states in the degree of penetration of international law into the domestic legal system.

That variety falls along a spectrum from monism to dualism. A monist state would be one that envisions international law as part of the domestic legal order. In essence, there is but one legal system into which international law flows freely. In contrast, dualist states would regard the international and municipal legal systems as two discrete spheres, such that international law cannot penetrate into the municipal sphere in the absence of some act of the relevant national authorities expressly transforming those norms into domestic law. In monist systems, international law is generally accorded a normative status hierarchically superior to that of statutory domestic law. In a dualist system, once transformed into domestic law, the formerly international norms would have the same status as other domestic laws.

The U.S. legal system appears on its face to be more monist than dualist. The Constitution declares that treaties made under the authority of the United States, together with the Constitution and federal laws, "shall be the supreme Law of the Land." The US legal system appears amenable to customary international law as well as to treaties. As the Supreme Court in The Paquete Habana case famously proclaimed, "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination."[14] The practice of courts, however, has diverged significantly from this seemingly monist conception.

Notwithstanding the status of treaty law as "supreme Law of the Land," it is rarely directly applied in US courts. One reason for this is that the courts have developed a doctrine of self-execution, whereby a treaty is to be regarded as "equivalent to an act of the legislature" only when "it operates of itself without the aid of any legislative provision."[15] Such a self-executing treaty would not require any additional legislative act to render it applicable as part of U.S. law. However, "when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court."[16]

The Court of Appeals, in dismissing Hamdan's claims, rejected the District Court's conclusion that the Third Geneva Convention conferred individual rights enforceable in federal court. Instead of expressly invoking the doctrine of self-execution, the Court used the term "judicial enforceability" and merged the issue of self-execution with the question of whether the Convention "confer[red] upon Hamdan a right to enforce its provisions in Court."

Again, the Supreme Court had several options. Arguments against a finding of self-execution included the embedding of the law of armed conflict within the traditional interstate structure of the international legal system, the fact that the Conventions establish an interstate mechanism for the vindication of Convention rights, as well as the finding by at least two US Courts of Appeals that the Conventions were not self-executing and a 1950 Supreme Court dictum emphasizing the interstate nature of the rights created by the 1929 Geneva Convention, an earlier treaty regulating the treatment of prisoners of war.[17]

In favor of a finding of self-execution were the dramatic changes that occurred in the international legal system following the Second World War, including the innovative provisions included in the 1949 Conventions to overcome deficiencies in earlier treaties and growing recognition of the individual human being as a subject of international law. In particular, the 1949 Conventions contain provisions on the non-renunciation of rights conferred by the treaties, increasing their use of the term "rights" (accompanied by loosening the link between individual and state that was traditionally understood as a necessary corollary to those rights), the advent of a regime for prosecution of war criminals, and the abandonment of compensation as the exclusive remedy for breaches.

However, the Court in Hamdan avoided answering the controversial self-execution question. Instead, the Court found that the "law of war," including the 1949 Geneva Conventions, had been incorporated by reference into Article 21 of the Uniform Code of Military Justice, and that this provision conditioned the Presidential power to create military commissions on compliance with that body of law as well as other relevant US laws.[18] It then found that because the military commission trying Hamdan could not be regarded as a "regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples," the commission lacked power to proceed.

The Court did not opine on the legality of the detentions at Guantanamo Bay. It simply held that the military commission established by the President is unlawful, foreclosing this particular avenue, as currently constituted, for prosecution of alleged offenders.[19] In relying on a provision of the UCMJ, the Court left open the possibility that the President could go to Congress to seek authorization to re-establish the commission or that Congress could do so on its own initiative.

The Court's decision is likely to resonate beyond the specific contours of Hamdan's case. For example, the finding that Common Article 3 is applicable to the treatment of detainees opens the possibility of prosecution under the War Crimes Act for their mistreatment. The War Crimes Act defines a war crime as any conduct that, inter alia, "constitutes a violation of Common Article 3 of the international conventions signed at Geneva, 12 August 1949."[20]

The decision's impact is already being demonstrated. In light of the Hamdan judgment, the Office of the Secretary of Defense, in a memorandum dated July 7, 2006, has requested Defense Department leadership to ensure that all Department personnel adhere to the standards of Common Article 3, and to "promptly review all relevant directives, regulations, policies, practices, and procedures" to ensure that they comply with these standards. The memorandum noted that "[t]he Supreme Court has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda." This interpretation seems to give the Court's decision a broad scope, not limited to the conflict with Afghanistan.



About the author

John P. Cerone, an ASIL member and co-chair of the ASIL Human Rights Interest Group, is Associate Professor of Law and Director of the Center for International Law and Policy at the New England School of Law. He is presently in residence at the International Criminal Court as a Visiting Professional in Chambers, and may be reached at The views expressed in this Insight are solely those of the author.


[1] See also the March 2004 Insight, "United States Charges and Proceedings Against Two Guantanamo Detainees for Conspiracy to Commit Crimes Associated with Armed Conflict."

[2] The law of armed conflict is the corpus of international norms that regulates the conduct of hostilities and that provides protection for persons not taking part, or no longer taking part, in hostilities. It also known as international humanitarian law, the jus in bello, or the law of war. The phrase "law of war" is the favored term of the US military and US courts, who by use of this phrase generally intend to encompass both the international law of armed conflict and relevant US law. The term law of war is also at times used to refer to the jus ad bellum, those norms of international law that regulate the recourse to the use of armed force by states. In order to avoid confusion with these uses of the phrase "law of war," the term law of armed conflict will be used herein.

[3] The majority consisted of Justices Stevens, Kennedy, Souter, Ginsburg and Breyer. Justices Scalia, Thomas and Alito dissented. Chief Justice Roberts took no part because he had been on the Court of Appeals panel that had heard this case. There were several individual opinions by the Justices.

[4] Note, however, that the International Criminal Tribunal for the former

Yugoslavia has greatly expanded the scope of norms applicable in noninternational

armed conflict. In the Tadic case, the Appeals Chamber found that certain norms

of international armed conflict, including provisions of the Hague Conventions, have evolved through customary law and now apply during non-international armed conflict as well. Prosecutor v. Tadic, Appeal Decision (ICTY, Appeals Chamber, 1995) ("Tadic Appeal Decision").

[5] In 1977, two Protocols were adopted to supplement the 1949 Geneva Conventions. Protocol I deals with international armed conflicts; Protocol II deals with non-international armed conflicts and provides significantly less protection than does Protocol I. While the United States is a party to the 1949 Geneva Conventions, it is not a party to either of the Protocols.

[6] Tadic Appeal Decision, para. 70.

[7] The term "enemy" combatant simply means that the person is a combatant who is fighting on behalf of the enemy. It does not denote privileged status or lack thereof. The legally meaningful distinction is between lawful and unlawful combatants, the test for which is set forth in Article 4 of the Third Geneva Convention.

[8] The US is also bound by the customary law of non-international armed conflict, which includes Common Article 3, select provisions of the Protocols, and certain norms of the Hague law that have evolved into customary law and are now regarded as applicable to non-international armed conflicts.

[9] The US position seems to be somewhat broader. In a letter dated 31 January 2006, addressed to the Office of the High Commissioner for Human Rights, the Permanent Representative of the United States of America to the United Nations and Other International Organizations in Geneva wrote, "The United States has made clear its position that it is engaged in a continuing armed conflict against Al Qaida, that the law of war applies to the conduct of that war and related detention operations. . ." Indeed, the US justifies its continued detention of the Guantanamo detainees by reference to the law of armed conflict. In replying to inquiries by UN and related human rights bodies about the legal basis for detaining the individuals at Guantanamo, the US has consistently asserted that "[t]he law of war allows the United States - and any other countries engaged in combat - to hold enemy combatants without charges or access to counsel for the duration of hostilities." Response of the United States of America dated October 21, 2005 to Inquiry of the UNCHR Special Rapporteurs dated August 8, 2005 Pertaining to Detainees at Guantanamo Bay; see also Annex to Second Periodic Report of the United States to the Committee Against Torture, filed on May 6, 2005.

[10] The US also took the position that the Geneva Conventions, as legally binding agreements between states, could not apply to the conflict with Al-Qaeda because the latter was not a party to the Conventions, reflecting its view of the inapplicability of the Conventions to transnational armed conflicts with non-state groups.

[11] Hamdan v. Rumsfeld, 415 F.3d 33 (D.C. Cir. 2005).

[12] See, e.g., Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA), 1986 I.C.J. 14, 25 International Legal Materials 1023, para. 218 (1986); Tadic Appeal Decision, para. 67. This position rests on the logic of the Convention regime in the context of the international legal system. If Common Article 3 would apply even in the context of a purely internal conflict, then a fortiori it would apply to a conflict with a transnational dimension, in which the principle of non-intervention would have less force.

[13] It reserved judgment on whether other provisions of the Conventions were applicable. By taking this position, the Court essentially also adopted the position taken by the International Court of Justice that Common Article 3 is a "minimum yardstick" for all armed conflicts, international or non-international. Nicaragua v. USA, note 12 supra, at para. 218.

[14] 175 U.S. 677, 700 (1900).

[15] Foster v. Neilson, 27 U.S. 253, 254 (1829).

[16] Id.

[17] See Hamdi v. Rumsfeld, 316 F.3d 450, 468; Hamdan v. Rumsfeld, 415 F.3d 33, 40 (D.C. Cir. 2005)(the Court of Appeals decision in the present case); Johnson v. Eisentrager, 339 U.S. 763, 789, n. 14 (1950).

[18] Justice Stevens, speaking for himself and Justices Souter, Ginsburg, and Breyer, also opined that at least some portions of Article 75 of Protocol I - including the right to be tried in one's presence - had evolved into customary law and applied these norms to its interpretation of Common Article 3.

[19] Justices Scalia, Thomas and Alito dissented on the ground that Congress had effectively deprived the courts of jurisdiction over this case, and even if that were not so, as a matter of discretion the courts should not intervene. They also dissented on the merits, arguing in part that Common Article 3 is not judicially enforceable and that, even if it were, Hamdan's military commission complies with it.

[20] 18 U.S. Code § 2441(c)(3).