I told a friend of mine today that I hadn’t read the Hamdan opinion yet, although I had read parts of it, and skimmed the rest.
What I was looking for, I said to my friend, was this: does the opinion say that we somehow have a treaty with Al Qaeda? And if we do, does it still apply even if they seemingly violate it by hacking off a few heads belonging to people our side of the treaty?
I can’t know the answer to these questions until I’ve read the opinion myself.
But if there’s anything better than skimming an opinion yourself, it’s relying on the analysis of someone else who has skimmed it. And there’s nobody whose skimming I trust more than that of Allah, whose analysis answers exactly the questions I told my friend I wanted answered:
But like I say, this is all pie in the sky. The big news comes on page 75. It’s not opaque with legalese; you can manage it if you ignore the citations. The language Stevens talks about comes from the beginning of Article 3 of the Geneva Conventions, which reads:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
Afghanistan is a High Contracting Party, so the question for the Court was whether Al Qaeda operatives captured there are subject to the Article. Answer: yes. “But,” you say, “it says it applies only to conflicts ‘not of an international character’ and the war on terror is as international as they come.” Indeed — but the Court is reading “international” in its literal sense, i.e., “between nations.” Al Qaeda isn’t a nation. Which means no matter how global the jihad might be, so long as a jihadi is captured within the territory of a signatory to the Conventions, he’s entitled to the protections of Article 3. And what protections are those?
[T]he following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) 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.
You don’t have to worry anymore about Sullivan treating fake menstrual blood or droplets of piss landing on the Koran as torture. Even if it’s not, it’s “degrading” and therefore, per subsection (c), illegal. There’s no condition of reciprocity in the Article, either: unlike a contract, which dissolves for both sides if one party breaches it, we’re bound no matter how many heads AQ hacks off and irrespective of the fact that they’re not a High Contracting Party themselves. Amazing.
This seems consistent with what I have learned from reading various news reports and other commentary.
As I say, I always want to read these things myself before forming a firm opinion. But I admit it: I’m feeling distressed.