A reader question re Hamdan and the Geneva Conventions

A reader, a student at Yale Law School, posts a very good question:

You write as follows:

“Press accounts have breathlessly described how the application of Common Article Three means that the US must now apply the terms of the Geneva Conventions to all detainees in the war on terror. That is correct under Hamdan.”

It seems to my untrained eye, however, that the Court’s ruling concerning Common Article 3 does not apply to all detainees in the War on Terror, but only to those engaged in armed conflict NOT of an international nature. This applies to al Qaeda, in other words, but not to Taliban detainees who, because of their own failure to comply with the laws of war, themselves fall short of POW status.

In other words, Hamdan appears to have the bizarre result of giving al Qaeda more protection than the Taliban, simply because al Qaeda is not a nation state (and hence falls under CA3), whereas the Taliban represents Afghanistan.

Am I wrong here?

Dear R,

Always happy to have a reader - but please bear in mind that when I call stuff on this blog first draft, I really, really mean it. I'm rethinking some of what I said about the Bush administration's Hamdan briefs now. People point out things on a regular basis that show that I either just missed something obvious, or they convince me that my argument was wrong.

In this case, I think we're both right. You are right to say that Hamdan on its own terms applies only to those engaged in armed conflict not of an international nature - roughly, Al Qaeda, not Taliban, although how in fact you distinguish is something of a mystery to me in many cases; just because we draw such distinctions doesn't mean that they do, and as a practical matter, I think it comes down to if you're an Afghan national, you're Taliban, and if you're foreign in Afghanistan, you''re Al Qaeda.

I'm right, too, however, in saying that the Geneva Conventions apply to everyone - NOT in the sense that everyone is entitled to be a POW or even that everyone (as a matter of international legal right rather than DOD policy) is entitled to CA3 protections. Instead I mean that as a threshold matter, everyone is entitled to have the Geneva Conventions apply to them at least long enough to determine whether they are a CA3 combatant, illegal or not, or simply an illegal combatant. When I say the Geneva Conventions apply to everyone, in other words, I mean merely for determination of status. That does not even necessarily mean a hearing under III Geneva - somewhere on my blog I talk about the literal language of III G Article 5, which literally says that a hearing is required only in case of doubt about status not, as nearly everyone has said, as a means to determine whether there is any doubt about status.

Does that give Al Qaeda fighters more rights than Taliban fighters - well, not in international law - they are both illegal combatants, and for all the same reasons, and what they are entitled to under international law of war, in my view although disputed by some, is a Protocol I, Article 75 hearing (which the US has accepted as customary law despite its nonacceptance of Protocol I), in either case.

Hope that helps. Feel free to be in touch and raise any questions you might have. You can tell that I don't always post when I'm busy and I often post on entirely irrelevant stuff. Best wishes,

KA