The Proliferation of the Law of International Criminal Tribunals Within Terrorism and "Unlawful
FORDHAMINTERNATIONALLAWJOURNAL
Fordham International Law Journal
-
2006
Article 8
Copyright c 2006 by the authors. Fordham International Law Journal is produced by The
Berkeley Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The Proliferation of the Law of International
Criminal Tribunals Within Terrorism and
“Unlawful” Combatancy Trials After Hamdan
v. Rumsfeld
Geert-Jan Alexander Knoops
This Article examines the arguments that led the Supreme Court to its landmark judgment, in
particular: (i) the jurisdiction of federal courts to ascertain procedural challenges to the lawfulness
of military commission proceedings; (ii) the relation to the Geneva Convention; (iii) the aspect of
conspiracy as a (non-)legal basis for indictments issued before military commissions, especially in
the argument raised by the defense in the Hamdan case; and (iv) the case law of the International
Criminal Tribunal for the former Yugoslavia (“ICTY”) with respect to the concept of conspiracy
and joint criminal enterprise (“JCE”). The case law of the ICTY, as this Article argues, is also
relevant to the interpretation of Common Article 3 of the Geneva Convention. This Article also
addresses the legal, political, and international (criminal) law implications of the Hamdan decision
and examines the proposed New Code of Military Commissions (“CMC”) for its compliance with
international law.
Geert-Jan Alexander Knoops *
I. THE ORIGIN OF THE MILITARY COMMISSION
PROCEEDINGSIN HAMDAN v. RUMSFELD
On June 2
9, 2006
, the U.S. Supreme Court rendered an
historical decision in the terrorism trials against detainees in
Guantanamo Bay before the military commissions initiated by the
President George W. Bush on November 13, 2001. These
commissions were established to try individuals who are not U.S.
residents and who the U.S. President has reason to assume are
members of Al Qaeda or have taken part in terrorist acts against
the United States. 2 In the Hamdan v. Rumsfeld decision, the
Supreme Court distinguished among three categories of military
commissions that historically have been used in three different
situations. Military commissions of the first category were
substitutes for civilian courts in situations where "martial law has been
declared."' Military commissions of the second
category-occupied territory or military government commissions-were
established to try civilians "as part of a temporary military government
over occupied enemy territory or territory regained from an
enemy where civilian government cannot and does not function. " '
The Hamdan case dealt with the third category of commission:
* Professor of international criminal law, Utrecht University; attorney at Knoops &
Partners Advocaten in Amsterdam, the Netherlands. The author is acting defense
counsel before the International Criminal Tribunal for the Former Yugoslavia
("ICTY"), the International Criminal Tribunal for Rwanda ("ICTR"), and the Special
Court for Sierra Leone ("SCSL"). As of October 2005, the author has been assigned as
an expert consultant on international criminal law with the Hamdandefense team.
Special thanks to Ms. Melinda Taylor, formerly a legal assistant in the ICTY defense office
and currently with the defense office of the International Criminal Court ("ICC"), who
worked with the author to draft the legal opinions for the Hamdan defense that are
relied upon in this Article.
1. See Hamdan v. Rumsfeld, 126 S.Ct. 2749, 2760 (2006).
2. See id.
3. Id. at 2775.
4. Id. at 2776.
one that considers acts "incident to the conduct of war," and
assesses whether disciplinary measures should be taken against
enemies who have violated military law in relation to the United
States.
The Hamdan decision qualifies as a landmark ruling: for
the first time, the U.S. Supreme Court was called upon to
ascertain the legality of the terrorism trials before these military
commissions, trials distinct from those before U.S. federal courts
and U.S. court-martial proceedings. The Hamdanjudgment
addresses various subjects, such as compliance of military
commission proceedings (of the third category) with the
constitutionally-derived Rules of Procedure and Evidence that pertain to
court-martial cases, as well as with international law
standardsin particular the Third Geneva Convention of 1949 ("Geneva
Convention") regarding the treatment of prisoners of war.6
The Hamdan decision was issued after one of the
Guantanamo Bay prisoners, Salim Ahmed Hamdan, raised these legal
challenges before the Supreme Court. Of Yemeni origin,
Hamdan was arrested by militia in November 2001, after the
U.S.-backed insurgency in Afghanistan overthrew the
Al-Qaedaassociated Taliban regime, and was subsequently handed over to
the U.S. military.7 In June 2002, he was transferred to
Guantanamo Bay.' Since January 2002, a total of 759 individuals from
forty-nine countries have been detained, most of whom are from
Afghanistan, Saudi-Arabia, Yemen, and Pakistan.
9 In 2006
this
de (...truncated)