This is an idea that deserves a bit more scrutiny before it becomes Liberal Blogostan conventional wisdom. Constitutional lawyer Green Greenwald writes, in his very informative blog post on the Supreme Court decision on extra-legal military trials for combat detainees (The significance of Hamdan v. Rumsfeld 06/29/06):
Congress can reverse almost every aspect of the decision as it specifically pertains to these military commissions. It could abrogate any treaties it wants.
This was picked up by Faiz in a blog post at Think Progess with a twist:
Glenn Greenwald notes that Congress could decide to abrogate the Geneva Convention or exempt its application with respect to the military commissions. It would be an extraordinary step, but with this Congress, anything is possible.
Faiz reads the meaning of Greenwald's comments as I do. But Greenwald's statement didn't specifically say "Geneva Convention". Actually, "Geneva Conventions" is the term used to apply to the body of laws and precedents that constitute the laws and customs of war. There actually was a compilation of laws known as the Geneva Conventions that the US signed in 1949. But the term is also used as a generic term for the laws of war.
Domestic law can be complicated enough. International law even more so, in addition to being less familiar to most of us. I'm not an attorney or any sort of professional specialist in international law.
But my understanding of it is that for Congress to try to opt out of some aspects of the international laws of war is a very different thing than, for instance giving notice of withdrawal from a mutual defense treaty. Because in general, the laws and customs of warfare are legally binding in international law on everyone, regardless of whether a particular country has specifically ratified particular treaties incorporating them. From an international law perspective, the requirement to have the status of prisoners captured in combat reviewed by an impartial tribunal would still be binding on the US even if Congress passed a law saying not to observe it.
How new innovations become accepted as part of the binding laws and customs of war is a murkier process,at least to me. There is a specific set of standards called the Additional Protocol to the Geneva Conventions that deals with the treatment of insurgents and guerrilla fighters. The US has never ratified the Additional Protocol, and I don't believe that it's considered binding on the US.
The same is true of the International Criminal Court, a particular bogeyman for the Bush administration. As Bush said in one of his televised debates with John Kerry on 09/30/04:
I wouldn't join the International Criminal Court (ICC). It's a body based in The Hague where unaccountable judges and prosecutors can pull our troops or diplomats up for trial.
And I wouldn't join it. And I understand that in certain capitals around the world that that wasn't a popular move. But it's the right move not to join a foreign court that could - where our people could be prosecuted.
But whether Americans are so immune from the reach of the ICC is not so clear to me. Some of the victims of torture in the Bush Gulag, for instance, have been citizens from countries like Germany and Britain that are members of the ICC. So where the ICC may not have standing to deal with American violations of the rights of American citizens, my understanding is that citizens of countries that have ratified the ICC have standing to ask for relief for American misconduct against themselves.
The bottom line is that I don't believe that Congress can simply vote away some provision of the internationally accepted laws and customs of war. I can imagine that this Republican Congress would vote cheerfully to declare the US a rogue nation when it comes to international law on the treatment of prisoners. But it may not be quite so easy as they might like it to be.
I had an initial reaction to the Supreme Court's ruling on Hamdan v. Rumsfeld at The Blue Voice.
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