Evolving Geneva Convention paradigms in the "war on terrorism": Applying the core rules to the release of persons deemed "unprivileged combatants"

George Washington Law Review

Volumn 75, Issue 5-6, 2007, Pages 1105-1164

  Murphy, Sean D ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 36048992063     PISSN: 00168076     EISSN: None     Source Type: Journal    
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References (314)

1. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
2. Geneva Convention Relative to the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31 [hereinafter Geneva Convention I]; Geneva Convention Relative to the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 75 U.N.T.S. 85 [hereinafter Geneva Convention [II]; Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A)(2), Aug. 12,1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter Geneva Convention III]; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Geneva Convention IV]. As of 2007, 194 states have adhered to the 1949 Geneva Conventions. See INT'L COMM. OF THE RED CROSS, STATE PARTIES TO THE FOLLOWING INTERNATIONAL HUMANITARIAN LAW AND OTHER TREATIES, http://www.icrc.org/IHL.nsf/(SPF)/ party_main_treaties/$File/IHL_and_other_related_Treaties.pdf (last visited June 27, 2007) [hereinafter ICRC, STATE PARTIES].
3. See EDWARD KOSSOY, LIVING WITH GUERRILLA 47-58 (1976) (tracing the history of guerrilla warfare to antiquity).
4. The instructions were part of the U.S. War Department's General Orders No. 100, which is reprinted in RICHARD SHELLY HARTIGAN, LIEBER'S CODE AND THE LAW OF WAR 45 (1983).
5. See Theodor Meron, Francis Lieber's Code and Principles of Humanity, 36 COLUM. J. TRANSNAT'L L. 269, 278-79 (1997) ("Both the Code's high quality and its timing, written when no other significant compilations of laws and customs of war were available, can explain its tremendous impact on the codification of international humanitarian law.").
6. Even less known is that Lieber had sons who fought on both sides of the American Civil War (one of whom died), see HARTIGAN, supra note 4, at 6-7, which no doubt animated his interest in promoting humanity in warfare.
7. See H.W. HALLECK, INTERNATIONAL LAW; OR, RULES REGARDING THE INTERCOURSE OF STATES IN PEACE OR WAR (1861).
8. See HARTIGAN, supra note 4, at 2.
9. FRANCIS LIEBER, GUERRILLA PARTIES CONSIDERED WITH REFERENCE TO THE LAWS AND USAGES OF WAR (1861),
10. reprinted in HARTIGAN, supra note 4, at 31.
11. See id. at 33-34.
12. Id. at 31.
13. Id. at 33.
14. See id.
15. See id.
16. See id.
17. Id.
18. Id.
19. Id. at 33-34.
20. Id. at 34.
21. Id. at 35.
22. See id. at 35-36.
23. See id. at 38-39.
24. Id. at 41.
25. Id. at 42.
26. Id.
27. Id. at 44.
28. See generally Meron, supra note 5 (discussing how "Lieber left an indelible imprint on humanitarian law").
29. HARTIGAN, supra note 4, at 11.
30. See JAMES M. MCPHERSON, BATTLE CRY OF FREEDOM: THE CIVIL WAR ERA 737-38 (1988).
31. Id. at 784-86.
32. Id. at 784.
33. Cf. HARTIGAN, supra note 4, at 11.
34. See Regulations Respecting the Laws and Customs of War on Land arts. 1-2 [hereinafter Hague Regulations], annexed to Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, 187 Consol. T.S. 227 [hereinafter Hague Convention];
35. see also KOSSOY, supra note 3, at 73-105 (examining the text, historical origins, interpretation, and application of articles 1 and 2 of the Hague Regulations).
36. See Hague Regulations, supra note 33, art. 2.
37. See Geneva Convention III, supra note 2, art. 4(A)(2);
38. KOSSOY, supra note 3, at 106-12 (tracing the development of Geneva Convention III).
39. See generally Theodore Draper, The Status of Combatants and the Question of Guerrilla Warfare, 45 BRIT. Y.B. INT'L L. 173 (1971) (tracing the development of guerrilla warfare and examining the legal status of combatants under the Hague Regulations and Geneva Convention III).
40. Jus Ad Bellum (Eth. v. Eri.), Ethiopia's Claims Nos. 1-8, Partial Award, paras. 6 & 8 (Eritrea Ethiopia Claims Comm'n Dec. 19, 2005), 45 I.L.M. 430 (2006). The author served as counsel to Ethiopia for the Eritrea-Ethiopia claims referenced in this Article.
41. Prisoners of War (Eth. v. Eri.), Ethiopia's Claim No. 4, Partial Award paras. 45, 55 (Eritrea Ethiopia Claims Comm'n July 1, 2003), 42 I.L.M. 1056, 1064 (2003).
42. See Geneva Convention IV, supra note 2, at pt. III, § II (provisions on aliens in the territory of a party to the conflict) and pt. III, § III (provisions on persons in occupied territory).
43. Here, too, the recent Ethiopia-Eritrea War demonstrates the paradigm. The Eritrea Ethiopia Claims Commission determined that, under Geneva Convention IV, Eritrea was bound to various obligations as an occupying power in Ethiopia over the course of two years, and further had obligations with respect to Ethiopians that found themselves in Eritrea at the outbreak of the war. Ethiopia had the same obligations with respect to its brief occupation of Eritrean territory in 2000 and with respect to Eritreans who were in Ethiopia at the outbreak of the war. See Civilians' Claims (Eth. v. Eri.), Eritrea's Claims Nos. 15, 16, 23, & 27-32 (Eritrea Ethiopia Claims Comm'n Dec. 17, 2004), 44 I.L.M. 601 (2005); Civilians' Claims (Eth. v. Eri.), Ethiopia's Claim No. 5 (Eritrea Ethiopia Claims Comm'n Dec. 17, 2004), 44 I.L.M. 630 (2005).
44. In the context of a discussion about "asymmetric warfare," it is interesting to note that Eritrea only acceded to the 1949 Geneva Conventions in August 2000 and thus was not - as a matter of treaty law-bound to them for most of the armed conflict. Nevertheless, Ethiopia determined that it would act in accordance with the Conventions in its treatment of victims of the conflict, and called upon Eritrea to do the same. After the conflict was over, the Claims Commission found that contemporary customary international humanitarian law was "exemplified by the relevant parts of the four Geneva Conventions of 1949." The Commission noted: (1) the widespread acceptance by states of the conventions over the course of their fifty-year existence; (2) that law of war treaties "build upon the foundation laid by earlier treaties and by customary international law"; and (3) that "rules that commend themselves to the international community in general . . . can more quickly become part of customary international law than
45. other types of rules found in treaties." Partial Award on Prisoners of War, supra note 37, paras. 30-31. Consequently, the Commission found that Ethiopia and Eritrea were bound throughout their conflict to rules of customary international law as reflected in the 1949 Geneva Conventions.
46. Geneva Conventions I-IV, supra note 2, art. 3.
47. Id. art. 3(1).
48. Id.
49. See, e.g., GEOFFREY BEST, WAR AND LAW SINCE 1945, at 169 (1994) ("The Red Cross movement..., as after the war it focused on the question of revising and improving the Geneva Conventions, had their extension to civil wars in the centre of its sights.");
50. Richard R. Baxter, lus in Bello Interno: The Present and Future Law, in LAW AND CIVIL WAR IN THE MODERN WORLD 518, 519 (John Norton Moore ed., 1974) ("The [1949 Diplomatic Conference held in Geneva] ultimately came around to the view that the most that states could be expected to accept would be a short statement of the basic humanitarian principles that should be given effect in civil conflicts. The result was Article 3 . . . .");
51. Derek Jinks, September 11 and the Laws of War, 28 YALE J. INT'L L. 1, 39-40 (2003);
52. see also U.S. DEP'T OF THE ARMY, FIELD MANUAL NO. 27-10: THE LAW OF LAND WARFARE 9 (1956) (quoting Common Article 3 in discussing the law applicable to "civil war");
53. U.K. MINISTRY OF DEF., THE MANUAL OF THE LAW OF ARMED CONFLICT 384-86 (2004) (discussing Common Article 3 as applying to "internal armed conflict"). The same thinking carried over to the initial negotiations of the additional protocols. See MICHAEL
54. BOTHE, KARL JOSEF PARTSCH & WALDEMAR A. SOLF, NEW RULES FOR VICTIMS OF ARMED CONFLICTS: COMMENTARY ON THE TWO 1977 PROTOCOLS ADDITIONAL TO THE GENEVA CONVENTIONS OF 1949, at 39 (1982) [hereinafter NEW RULES] ("The pre-conference work . . . was based on the following concept: The distinction between international and national conflicts, which is made on the factual and objective basis of whether a conflict takes place in the territory of different States or inside one particular State . . . , should be maintained.").
55. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 3 [hereinafter Protocol I].
56. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts, June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II]. In December 2005, a third additional protocol was adopted to create an additional emblem alongside the Red Cross and Red Crescent, see Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem, Dec. 8, 2005, 45 I.L.M. 558 (Protocol III), available at http://www.icrc.org/ihl.nsf/ FULL/615, known as the red crystal,
57. see Int'l Comm. of the Red Cross, Additional Emblem: Questions and Answers (Dec. 6, 2005), http://www.icrc.org/web/Eng/siteeng0.nsf/html/emblem- questions-answers-281005.
58. See Protocol I, supra note 44, arts. 10, 11, 35.
59. For the authoritative ICRC commentary on the meaning of Protocols I and II and their relationship to earlier treaties, see INT'L COMM. OF THE RED CROSS, COMMENTARY ON THE ADDITIONAL PROTOCOLS OF 8 JUNE 1977 TO THE GENEVA CONVENTIONS OF 12 AUGUST 1949 (Yves Sandoz et al. eds., 1987) [hereinafter SANDOZ COMMENTARY].
60. Protocol I, supra note 44, art. 75.
61. See ICRC, STATE PARTIES, supra note 2. 50 Protocol II, supra note 45, art. 1.
62. Id.
63. Id. arts. 2, 4.
64. See ICRC, STATE PARTIES, supra note 2.
65. Protocol I, supra note 44, art. 1(4).
66. See supra notes 9-26 and accompanying text.
67. Protocol I, supra note 44, art. 44(3). They may dress in civilian clothing and carry their arms secretly, but they must carry their arms openly just before and during their attack. See id.
68. Id. art. 44(4).
69. See NEW RULES, supra note 43, at 255.
70. See LESLIE C. GREEN, THE CONTEMPORARY LAW OF ARMED CONFLICT 321 (2d ed. 2000). By contrast, Protocol II requires that the nonstate actor control part of the national territory, making its application to guerrillas problematic. According to Green:
71. If the dissident forces are constantly on the move and lack any fixed location from which to exercise control the Protocol [II] will not operate. Guerrilla or partisan activities against the administration, however effective, would therefore not be protected by the Protocol, though they would be covered by Common Article 3. Id.
72. For a discussion of the U.S. rejection of Protocol I, see generally Hans-Peter Gasser, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims, 81 AM. J. INT'L L. 910 (1987);
73. Abraham D. Sofaer, Agora: The U.S. Decision Not to Ratify Protocol I to the Geneva Conventions on the Protection of War Victims (Cont'd), 82 AM. J. INT'L L. 784 (1988);
74. see also Theodor Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AM. J. INT'L L. 678 (1994).
75. Protocol I, supra note 44, art. 96(3).
76. See generally PETER MARSDEN, THE TALIBAN: WAR. RELIGION AND THE NEW ORDER IN AFGHANISTAN (1998).
77. See ICRC, STATE PARTIES, supra note 2.
78. S.C. Res. 1076, pmbl. & ¶¶ 3-5, U.N. Doc. S/RES/1076 (Oct. 22, 1996).
79. S.C. Res. 1193, pmbl., U.N. Doc. S/RES/1193 (Aug. 28, 1998).
80. Id.
81. Id. para. 12.
82. See Adam Roberts, The Laws of War in the War on Terror, in INTERNATIONAL LAW AND THE WAR ON TERROR 175, 193 (Fred L. Borch & Paul S. Wilson eds., 2003).
83. See Geneva Convention IV, supra note 2. arts. 146-47.
84. Id.
85. Hans-Peter Gasser, Internationalized Non-International Armed Conflicts: Case Studies of Afghanistan, Kampuchea and Lebanon, 33 AM. U. L. REV. 145, 145, 150-51 (1983).
86. See Baxter, supra note 43, at 523-24 (discussing Vietnam); Gasser, supra note 71, at 152-57 (discussing Cambodia and Lebanon); see also HILAIRE MCCOUBREY & NIGEL D. WHITE, INTERNATIONAL ORGANIZATIONS AND CIVIL WARS 63-65 (1995) (discussing implications of an " internationalized" civil war).
87. See generally THE INTERNATIONAL LAW OF CIVIL WAR (Richard A. Falk ed., 1971).
88. See A.P.V. ROGERS, LAW ON THE BATTLEFIELD 220 (2d ed. 2004).
89. Id. at 219.
90. Roberts, supra note 68, at 193.
91. Cf. George H. Aldrich, The Taliban, al Qaeda, and the Determination of Illegal Combatants, 96 AM. J. INT'L L. 891, 893 (2002).
92. See Roberts, supra note 68, at 196.
93. See Ann Scott Tyson, Taliban's Gains Forestall U.S. Troop Reductions in Afghanistan, WASH. POST, Sept. 22, 2006, at A13.
94. See OFFICE OF THE PRESS SEC'Y, THE WHITE HOUSE, FACT SHEET: STATUS OF DETAIN-EES AT GUANTANAMO (Feb. 7, 2002), http://www. whitehouse.gov/news/releases/2002/02/200202 07-13.html [hereinafter GUANTÁNAMO FACT SHEET].
95. Geneva Convention III, supra note 2, art. 4(A)(3). Commentary on this issue tends to focus on Geneva Convention III article 4(A)(1), which says that members of the "armed forces" of a party, as well as members of militias or volunteer corps forming a part of such armed forces, are to be treated as POWs, without any reference to these four criteria. This provision is then contrasted with article 4(A)(2), which says that members of other militias or volunteers corps (i.e., those not forming part of the regular armed forces) must meet the criteria to qualify as POWs. The relevant provision for the Taliban armed forces, however, is article 4(A)(3), because the United States did not recognize the Taliban government at the outbreak of the conflict.
96. Memorandum from Jay S. Bybee, Assistant Att'y Gen., Office of Legal Counsel, to Alberto Gonzales, Counsel to the President, Status of Taliban Forces under Article 4 of the Third Geneva Convention of 1949 (Feb. 7, 2002) [hereinafter OLC Memo], in THE TORTURE PAPERS: THE ROAD TO ABU GHRAIB 136, 137-39 (Karen J. Greenberg & Joshua L. Dratel eds., 2005) [hereinafter THE TORTURE PAPERS].
97. See id.; GUANTÁNAMO FACT SHEET, supra note 79;
98. see also John Mintz & Mike Allen, Bush Shifts Position on Detainees, WASH. POST, Feb. 8, 2002, at A1;
99. Katherine Q. Seelye, In Shift, Bush Says Geneva Rules Fit Taliban Captives, N.Y. TIMES, Feb. 8, 2002, at A1.
100. Secretary of Defense Rumsfeld stated:
101. [T]he Taliban . . . did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to al Qaeda. They behaved like them, they worked like them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition, and there isn't any question in my mind . . . that they are not, they would not rise to the standard of a prisoner of war.
102. U.S. Dep't of Def. News Transcript, Secretary Rumsfeld Media Availability En Route to Camp X-Ray (Jan. 27, 2002), http://www.defenselink.mil/Transcripts/ Transcript.aspx?transcriptID=2338;
103. see also Pierre-Richard Prosper, Ambassador-at-Large for War Crimes Issues, Status and Treatment of Taliban and al-Qaida Detainees, Remarks at Chatham House, London, United Kingdom (Feb. 20, 2002), http://www.state.gov/ s/wci/us_releases/rm/2002/8491.htm.
104. See, e.g., Hamdan v. Rumsfeld, 415 F.3d 33, 40 (D.C. Cir. 2005), rev'd on other grounds, 126 S. Ct. 1749 (2006) (holding that Hamdan did not fall within article 4's definition of "prisoner of war" because he "did not purport to be a member of a group who displayed a fixed distinctive sign recognizable at a distance and who conducted their operations in accordance with the laws and customs of war"); United States v. Lindh, 212 F. Supp. 2d 541, 558 (E.D. Va. 2002) (concluding that Taliban was not entitled to article 4(A)(2)'s protections because it lacked a command structure, wore no uniforms or insignia, did not observe the laws and customs of war, but finding Lindh did carry their arms openly).
105. Compare Aldrich, supra note 76, at 894-98 (arguing that whether the four criteria apply to members of the "armed forces" of a party is "debatable"), with Yoram Dinstein, Unlawful Combatancy, in INTERNATIONAL LAW AND THE WAR ON TERROR, supra note 68, at 151 (finding that the criteria express a general standard for lawful combatancy and, although there may be a presumption that regular armed forces meet the criteria, the presumption may be rebutted).
106. Geneva Convention III, supra note 2, art. 4(A)(3).
107. As Bothe, Partsch, and Solf observed:
108. It is generally assumed that these conditions were deemed, by the 1874 Brussels Conference and the 1899 and 1907 Hague Peace Conferences, to be inherent in the regular armed forces of States. Accordingly, it was considered to be unnecessary and redundant to spell them out in the Conventions. It seems to be clear that regular armed forces are inherently organized, that they are commanded by a person responsible for his subordinates, and that they are obliged under international law to conduct their operations in accordance with the laws and customs of war. NEW RULES, supra note 43, at 234-35. Because the Geneva Conventions obligate a party to train its military authorities regarding their obligations under the Conventions, see, e.g., Geneva Convention III, supra note 2, art. 127, it is reasonable to expect the armed forces to conduct their operations in accordance with the laws and customs of war.
109. 3 INT'L COMM. OF THE RED CROSS, THE GENEVA CONVENTIONS OF 12 AUGUST 1949: COMMENTARY 63 (Jean S. Pictet ed., 1952) [hereinafter PICTET COMMENTARY].
110. QLC Memo, supra note 81.
111. See generally MARSDEN, supra note 62; AHMED RASHID, TALIBAN: MILITANT ISLAM, OIL AND FUNDAMENTALISM IN CENTRAL ASIA (2001).
112. RASHID, supra note 89, at 33.
113. See id. at 99.
114. Id.
115. Id. at 98.
116. Id. at 100.
117. Id. at 99. Globalsecurity.org maintains:
118. The Taliban-led "Islamic Emirate of Afghanistan" lacked the administrative efficiency of a state. The military did not exist on a national basis. Some elements of the former Army, Air and Air Defense Forces, National Guard, Border Guard Forces, National Police Force (Sarandoi), and tribal militias existed, but were factionalized among various groups. The Taliban's "army" was a coalition of militia formations composed of assorted armed groups with varying degrees of loyalty, commitment, skill, and organizational coherence. Many had a history of switching sides and shifting loyalties prior to coming under the nominal command of the Taliban.
119. GlobalSecurity.org, Taliban Militia, http://www.globalsecurity.org/ military/world/afghanistan/militia-taliban.htm (last visited June 27, 2007).
120. Dinstein, supra note 84, at 171.
121. Leslie Green, Commentary: Jus in Bello, in INTERNATIONAL LAW AND THE WAR ON TERROR, supra note 71, 235-40.
122. See W. Hays Parks, Special Forces' Wear of Non-Standard Uniforms, 4 CHI. J. INT'L L. 493, 498 (2003).
123. See NEW RULES, supra note 43, at 250.
124. See, e.g., BUREAU OF DEMOCRACY, HUMAN RIGHTS, AND LABOR, U.S. DEP'T OF STATE, 1999 COUNTRY REPORTS ON HUMAN RIGHTS PRACTICES: AFGHANISTAN (Feb. 25, 2000), http://www.state.gov/ www/global/human_rights/1999_hrp_report/afghanis.html.
125. RASHID, supra note 89, at 49-50.
126. Geneva Convention III, supra note 2, art. 5.
127. In early 2002, the State Department argued forcefully that the 1949 Geneva Conventions should be regarded as applying to the conflict in Afghanistan, but it accepted that members of al Qaeda and the Taliban may not be entitled to POW status under Geneva Convention III. See Memorandum from William H. Taft IV, Legal Adviser, U.S. Dep't of State, to Alberto R. Gonzales, Counsel to the President, Comments on Your Paper on the Geneva Convention (Feb. 2, 2002), in THE TORTURE PAPERS, supra note 81, at 129.
128. See Press Release, Int'l Comm. of the Red Cross, Geneva Convention on Prisoners of War (Feb. 9, 2002), http://www.icrc.org/web/eng/siteeng0.nsf/ htmlall/57jrm3?opendocument ("There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status.").
129. See, e.g., Aldrich, supra note 76, at 897-98.
130. Geneva Convention III, supra note 2, art. 5.
131. See, e.g., Josh White, Suspect Is Freed from Guantanamo; Release Is First Under Tribunals, WASH. POST, Sept. 9, 2004, at A3 (recounting the release of a detainee picked up on the battlefield in Afghanistan whom the United States determined, after three years at Guantanamo, not to be an enemy combatant).
132. See infra notes 218-19 and accompanying text.
133. Geneva Convention IV, supra note 2, art. 4.
134. no The Pictet commentary is also a bit conflicted on the issue, asserting on the one hand that "[e]very person in enemy hands must have some status" under the four conventions, 4 PICTET COMMENTARY, supra note 87, at 51, but on the other hand stating that Geneva Convention IV basically concerns civilians living in the enemy belligerent's territory or in territory occupied by the enemy belligerent (which seems to exclude a civilian combatant who is taken into custody on the battlefield), id. at 45.
135. m Geneva Convention IV, supra note 2, art. 4. Nationals of a state that has not ratified the Conventions are also not protected, see id., but because all states admitted to the United Nations have ratified or acceded to the 1949 Geneva Conventions,
136. see ICRC, STATE PARTIES, supra note 2, this carve-out would not apply.
137. "Co-belligerents" are generally regarded as states "engaged in a conflict with a common enemy, whether in alliance with each other or not." PARRY & GRANT ENCYCLOPAEDIC DICTIONARY OF INTERNATIONAL LAW 84 (John P. Grant & J. Craig Barker eds., 2d ed. 2004). With respect to the U.S. intervention in Afghanistan, "co-belligerent" might be defined as the wide range of states that provided support for "Operation Enduring Freedom," in the form of military
138. assistance, financial assistance, intelligence, overflight and landing rights, or political support. See, e.g., U.S. DEP'T OF STATE, FACT SHEET: OPERATION ENDURING FREEDOM OVERVIEW (Oct. 1, 2001), http://www.state.gov/s/ct/rls/fs/2001/5194.htm (listing examples of countries providing to the United States in Operation Enduring Freedom).
139. Ironically, this is apparently one area where detaining persons outside U.S. territory may give them greater rights than detaining them within.
140. See Geneva Convention IV, supra note 2, art. 5. 115
141. See Geneva Conventions I-IV, supra note 2, art. 3.
142. See Protocol I, supra note 44, art. 45(3) ("Any person who has taken part in hostilities, who is not entitled to prisoner-of-war status and who does not benefit from more favorable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol.");
143. see also id. art. 75(7)(b) (referring to persons who do not benefit from the general protections of the 1949 Geneva Conventions or Protocol I). The official ICRC commentary on the protocol states that article 45 "covers persons who not only cannot claim prisoner-of-war status, but are also not protected persons under the Fourth Convention."
144. SANDOZ COMMENTARY, supra note 47, at 870. The ICRC originally proposed article 75 so as to protect "any person who was, for one reason or another, unable to claim a particular status, such as that of prisoner of war or civilian internee." Id. at 864.
145. See Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 257 (July 8).
146. Geneva Conventions I-IV, supra note 2, art. 3.
147. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14 (June 27).
148. Id. at 114 (quoting Corfu Channel (U.K. v. Alb.), 1949 I.C.J. 4, 22 (Apr. 9)).
149. See, e.g., LAWRENCE WRIGHT, THE LOOMING TOWER: AL-QAEDA AND THE ROAD TO 9/11, at 245 (2006).
150. See id. at 247.
151. See, e.g., The Global Reach of Al-Qaeda: Hearing Before the Subcomm. on Int'l Operations and Terrorism of the S. Comm. on Foreign Relations, 107th Cong. 7 (2001) (statement of Thomas Wilshere, Deputy Section Chief, International Terrorism Operational Section, Federal Bureau of Investigation); id. at 21 (statement of Michele Flournoy, Senior Advisor, International Security Program, Center for Strategic and International Studies) (describing al Qaeda as a "multiheaded hydra").
152. See generally JANE CORBIN, AL- QAEDA: IN SEARCH OF THE TERROR NETWORK THAT THREATENS THE WORLD (2003);
153. AL QAEDA NOW: UNDERSTANDING TODAY'S TERRORISTS (Karen J. Greenberg ed., 2005);
154. WRIGHT, supra note 121.
155. See supra note 123.
156. See, e.g., Mary Ellen O'Connell, When Is a War Not a War? The Myth of the Global War on Terror, 12 ILSA J. INT'L & COMP. L. 535, 538 (2005) ("Outside the real wars of Afghanistan and Iraq, al Qaeda's actions and our responses have been too sporadic and low-intensity to qualify as armed conflict.");
157. Jordan J. Paust, Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantanamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions, 79 NOTRE DAME L. REV. 1335, 1342 (2004) ("[A]ny conflict between the United States and al Qaeda as such cannot amount to war or trigger application of the laws of war.").
158. See, e.g., Kenneth Roth, The Law of War in the War on Terror, FOREIGN AFF., Jan.-Feb. 2004, at 2, 7 (argument by the director of Human Rights Watch that the laws of war are not applicable to the non-battlefield campaign against al Qaeda);
159. INT'L COMM. OF THE RED CROSS, THE RELEVANCE OF IHL IN THE CONTEXT OF TERRORISM (Jul. 21, 2005), http://www.icrc.org/Web/eng/siteengO.nsf/html/terrorism-ihl- 210705.
160. See, e.g., Roth, supra note 127, at 2.
161. See id. at 2-3.
162. See, e.g. Jinks, supra note 43, at 38 ("[T]he September 11 attacks constituted the initiation of an 'armed conflict' within the meaning of . . . the Geneva Conventions.");
163. John C. Yoo & James C. Ho, The Status of Terrorists, 44 VA. J. INT'L L. 207, 211 (2003).
164. See Protocol II, supra note 45, art. 1 ("This Protocol, which develops and supplements Article 3 common to the Geneva Conventions of 12 August 1949 without modifying its existing conditions of application, shall apply to all armed conflicts which are not covered by Article 1 of [Protocol I] and which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." (emphasis added)).
165. See Geneva Conventions I-IV, supra note 2, art. 3.
166. See supra notes 46-49, 54-59 and accompanying text.
167. Bothe, Partsch, and Solf write:
168. A question under the Hague Regulations and the Third Convention involves the status of an independent force which has no factual link to a party to an international armed conflict. In general, it may be said that such a force would probably be viewed as waging a private war. In any event, it would have no status better than that of insurgents in a non-international armed conflict, unless the movement they represent has such de facto objective characteristics of a belligerency that the movement itself could be recognized as a Party to an international armed conflict. NEW RULES, supra note 43, at 235. They later note that "gangs of terrorists acting on their own behalf and not linked to an entity subject to international law are excluded" from the armed forces "of a party to the Conflict" under article 43 of Protocol I. Id. at 237.
169. Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006).
170. Id. at 2795.
171. See id. at 2795-96.
172. Id. at 2796 (quoting PICTET COMMENTARY, supra note 87, at 36-37) (other citation and footnote omitted). In its footnote,
173. see id. at 2796 n.63, the Court cited to the ICJ's decision in Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 114 (June 27).
174. The D.C. Circuit Court of Appeals found, in the alternative, that the Geneva Conventions did not apply to Hamdan because he was captured as part of a global U.S. war with al Qaeda-one that was separate from the war with the Taliban occurring in Afghanistan. See Hamdan v. Rumsfeld, 415 F.3d 33, 41-42 (D.C. Cir. 2005), rev'd on other grounds, 126 S. Ct. 2749 (2006) ("Hamdan was captured in Afghanistan in November 2001, but the conflict with al Qaeda arose before then, in other regions, including this country on September 11, 2001."). In so holding, the D.C. Circuit disagreed with the district court, which had found that the conflict with al Qaeda was not distinct from the conflict with the Taliban.
175. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 161 (D.D.C. 2004). The Supreme Court, per Justice Stevens, did not expressly accept that there was a global conflict with al Qaeda distinct from the conflict in Afghanistan with the Taliban. Instead, the Court found that even if a separate conflict existed with al Qaeda, and even if Hamdan was detained as part of that conflict, he would still be protected by Common Article 3.
176. See Hamdan, 126 S. Ct. 2749, 2795-96 (2006). The Court left open the possibility that Hamdan might be protected by the full range of the Geneva Conventions, but it also appeared to leave open the possibility that the Geneva Conventions may not apply at all to persons detained outside Afghanistan.
177. For example, Bosnian Federation police in January 2002 transferred six Bosnian residents of Algerian origin from a Sarajevo prison to U.S. custody. The men were transported to Guantanamo Bay for detention. The detainees were said to be suspects in an alleged plot to attack the U.S. and U.K. embassies in Sarajevo. See Press Release, European Parliament, MEPs Examine the Case of Six Prisoners Taken from Bosnia to Guantanamo (Apr. 26, 2006), http://www.europarl.europa.eu/news/expert/infopress_page/017-7559-115-04-17-902- 20060424IPR07546-25-04-2006-2006-false/default_en.htm.
178. U.S. DEP'T OF DEF., DIRECTIVE NO. 2310.01E, paras. 2.2, 4.2 (Sept. 5, 2006), available at http://www.defenselink.mil/pubs/pdfs/Detainee_Prgm_Dir_2310_9-5-06.pdf.
179. See generally id.
180. See generally CHRISTOF HEYNS & FRANS VILJOEN, THE IMPACT OF THE UNITED NATIONS HUMAN RIGHTS TREATIES ON THE DOMESTIC LEVEL (2002). Some empirical findings call into doubt the connection between ratification of human rights treaties and improvements in
181. domestic practice. See, e.g., Oona A. Hathaway, Do Human Rights Treaties Make a Difference?, 111 YALE L.J. 1935, 1940 (2002) (finding no significant correlation between treaty ratification and better human rights practices);
182. Oona A. Hathaway, Testing Conventional Wisdom, 14 EUR. J. INT'L L. 185, 185-86 (2003) (same, and responding to methodological critiques).
183. But see Ryan Goodman & Derek Jinks, Measuring the Effects of Human Rights Treaties, 14 EUR. J. INT'L L. 171, 173, 178, 183 (2003) (criticizing Hathaway's research design and empirical conclusions).
184. Universal Declaration of Human Rights, G.A. Res. 217A (III), at 71, U.N. Doc. A/810 (Dec. 10, 1948).
185. Id. at 72, art. 1.
186. Id. at 72-73. art. 3.
187. Id. at 73, arts. 4-5.
188. Id. arts. 6-7.
189. Id. art. 9.
190. Id. arts. 10-11.
191. Id. art. 8.
192. International Covenant on Civil and Political Rights, Dec. 19, 1966, S. TREATY DOC. No. 95-2 (1978), 999 U.N.T.S. 171 [hereinafter ICCPR].
193. Id. art. 4(2).
194. Id. art. 6(1).
195. Id. art. 7.
196. Id. art. 8(1).
197. Id. art. 15(1).
198. Id. art. 16.
199. See ICRC, STATE PARTIES, supra note 2.
200. See Michael J. Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 AM. J. INT'L L. 119, 122-27 (2005) (recounting the U.S. position when the ICCPR was negotiated and finding that extraterritorial application "is at odds with the plain meaning of [the ICCPR], the practice of states that have ratified the Covenant, and the original intent of the negotiators").
201. But see Theodor Meron, Extraterritoriality of Human Rights Treaties, 89 AM. J. INT'L L. 78, 79 (1995) (stating that the extraterritorial application of the ICCPR has "almost never been questioned and has long ceased to be the preserve of scholars; it has obtained the imprimatur of the Human Rights Committee and UN rapporteurs").
202. Cf. Military and Paramilitary Activities (Nicar. v. U.S.), 1986 I.C.J. 14, 22 (June 27).
203. Hague Convention, supra note 33, pmbl.
204. The "denunciation clause" common to all four Geneva Conventions provides that a denunciation "shall in no way impair the obligations which the Parties to the conflict shall remain bound to fulfil by virtue of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity and the dictates of public conscience." Geneva Convention I, supra note 2, art. 63;
205. Geneva Convention II, supra note 2, art. 62;
206. Geneva Convention III, supra note 2, art. 142;
207. Geneva Convention IV, supra note 2, art. 158.
208. Protocol I, supra note 44, art. 1(2) ("In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.");
209. see NEW RULES, supra note 43, at 37-38.
210. Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 266 (July 8).
211. See id. at 257.
212. See id. at 266.
213. See Geneva Conventions I-IV, supra note 2, art. 3(1)(c).
214. Protocol I, supra note 44, art. 75(2)(b).
215. Geneva Conventions I-IV, supra note 2, art. 3(1)(d).
216. See Protocol I, supra note 44, art. 75(4).
217. See id. art. 75.
218. NEW RULES, supra note 43, at 457.
219. See Protocol I, supra note 44, art. 45(3);
220. NEW RULES, supra note 43, at 457.
221. Protocol I, supra note 44, art. 75(8).
222. See ICRC, STATE PARTIES, supra note 2.
223. See id.
224. See generally 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW 299-383 (Jean Marie-Henckaerts & Louise Doswald-Beck eds., 2005).
225. See, e.g., Hans-Peter Gasser, Protection of the Civilian Population, in THE HANDBOOK OF HUMANITARIAN LAW IN ARMED CONFLICTS 209, 233 (Dieter Fleck ed., 2005) [hereinafter THE HANDBOOK OF HUMANITARIAN LAW].
226. See Civilians' Claims (Eth. v. Eri.), Eritrea's Claims Nos. 15, 16, 23, 27-32 (Eritrea Ethiopia Claims Comm'n Dec. 17, 2004), 44 I.L.M. 601 (2005) (quoting Gasser, supra note 179, at 233).
227. See Michael J. Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT'L L. & POL'Y 419, 419 (1987) (statement by the U.S. Department of State Deputy Legal Adviser). Matheson recently reiterated that the Reagan Administration accepted as customary law . . . Article 75 of Additional Protocol I, which set forth a series of fundamental guarantees that would apply to all persons in the hands of a party to a conflict, even if they did not qualify for POW treatment. This provision was of course designed to fill the gaps in the 1949 Conventions to some degree.
228. Michael J. Matheson, Continuity and Change in the Law of War: 1975 to 2005: Detainees and POWs, 38 GEO. WASH. INT'L L. REV. 543, 546-47 (2006).
229. Matheson, The United States Position, supra note 181, at 420.
230. See Memorandum of the Dep't of Def. Law of War Working Group (May 9, 1986) ("We view the following provisions as already part of customary international law: . . . Fundamental guarantees: Article 75 . . . .") (cited in Matheson, Continuity and Change, supra note 181, at 547 n.9).
231. Matheson, The United States Position, supra note 181, at 427 (footnote omitted).
232. William H. Taft IV, The Law of Armed Conflict After 9/11: Some Salient Features, 29 YALE J. INT'L L. 319, 322 (2003).
233. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2798 (2006).
234. See id. at 2797-98.
235. These numbers have gradually changed over time as more detainees are released or transferred. The Department of Defense website that tracks this issue is http://www.defenselink.mil/news/nrdgb.html.
236. See, e.g., Press Release, U.S. Dep't of State, Remarks upon Her Departure for Europe: Secretary Condoleezza Rice (Dec. 5, 2005), http://www.state.gov/secretary/rm/2005/57602.htm (statement by Secretary of State Condoleezza Rice, asserting that "[international law allows a state to detain enemy combatants for the duration of hostilities").
237. Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
238. Authorization to Use Military Force, Pub. L. No. 107-40, 115 Stat. 224 (2001).
239. Hamdi, 542 U.S. at 520-21.
240. Id. at 520.
241. See Editorial, Somalia Simmers, WASH. POST, Oct. 18, 2006, at A20 (recounting the Islamic fundamentalist movement in Somalia and its willingness to shelter al Qaeda members); Craig Whitlock, Al-Qaeda's Far Reaching Partner, WASH. POST, Oct. 5, 2006, at A1 (recounting an Algerian underground network's decision to partner with al Qaeda).
242. Lawrence Wright, The Master Plan, NEW YORKER, Sept. 11, 2006, at 48, 50.
243. Hamdi, 542 U.S. at 521.
244. See id. at 510, 521.
245. Cf. Geneva Convention III, supra note 2, art. 118 ("Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.").
246. Cf. Geneva Convention IV, supra note 2, art. 133 (providing that any internment of civilians "shall cease as soon as possible after the close of hostilities").
247. Article 20 of the 1907 Hague Regulations provides that "[a]fter the conclusion of peace, the repatriation of prisoners of war shall be carried out as quickly as possible." Hague Regulations, supra note 33, art. 20.
248. Convention Relative to the Treatment of Prisoners of War art. 75, July 27,1929, 47 Stat. 2021, 118 U.N.T.S. 343 ("When belligerents conclude a convention of armistice, they must, in principle have appear therein stipulations regarding the repatriation of prisoners of war.").
249. See 3 PICTET COMMENTARY, supra note 87, at 541.
250. Geneva Convention III, supra note 2, art. 21.
251. Id. art. 109.
252. Geneva Convention IV, supra note 2, art. 132.
253. Protocol I, supra note 44, art. 75(3) (emphasis added).
254. ICCPR, supra note 152, art. 9(2).
255. Hamdan v. Rumsfeld, 126 S. Ct. 2749, 2797 (2006).
256. See supra note 198 and accompanying text.
257. See supra notes 199, 205 and accompanying text.
258. SANDOZ COMMENTARY, supra note 47, at 876-77 ("Legal practice in most countries recognizes preventive custody, i.e., a period during which the police or public prosecutor can detain a person in custody without having to charge him with a specific accusation; in peacetime this period is no more than two or three days, but sometimes it is longer for particular offences (acts of terrorism) and in time of armed conflict it is often prolonged. Useful indications can be found in national legislation. In any case, even in time of armed conflict, detaining a person for longer than, say, ten days without informing the detainee of the reasons for his detention would be contrary to this paragraph.").
259. Id. at 877.
260. Id.
261. See Geneva Convention IV, supra note 2, art. 43.
262. See id.
263. See id.
264. Id.
265. See Memorandum from Paul Wolfowitz, Deputy Sec'y of Def., to the Sec'y of the Navy, Order Establishing Combatant Status Review Tribunal 1 (July 7, 2004), available at http://www.defenselink.mil/news/Jul2004/ d20040707review.pdf.
266. See generally John Mintz, Pentagon Sets Hearings for 595 Detainees, WASH. POST, July 8, 2004, at A1;
267. Memorandum from the Sec'y of the Navy, Implementation of Combatant Status Review Tribunal Procedures for Enemy Combatants Detained at Guantanamo Bay Naval Base, Cuba (July 29, 2004), available at http://www.defenselink. mil/news/Jul2004/d20040730comb.pdf.
268. For the dates and results of the CSRT proceedings, see U.S. DEP'T OF DEF., COMBATANT STATUS REVIEW TRIBUNAL SUMMARY, http://www.defenselink.mil/news/Mar2005/ d20050329csrt.pdf (last visited June 27, 2007).
269. See Memorandum from U.S. Dep't of Def. on Administrative Review Procedures for Enemy Combatants in the Custody of the Department of Defense at Guantanamo Bay Naval Base, Cuba (Draft Memorandum) 1 (Mar. 2, 2004), available at http://www.dod.mil/news/mar2004/d20040303ar.pdf.
270. See Paul Wolfowitz, Deputy Sec'y of Def., Order, Administrative Review Procedures for Enemy Combatants in the Control of the Department of Defense at Guantanamo Bay Naval Base, Cuba 1 (May 11, 2004) [hereinafter Order on Administrative Review Procedures], available at http://www. defenselink.mil/news/May2004/d20040518gtmoreview.pdf.
271. See Memorandum from U.S. Dep't of Def. on Implementation of Administrative Review Procedures for Enemy Combatants Detained at U.S. Naval Base Guantánamo Bay, Cuba (Sept. 14, 2004), available at http://www.defenselink.mil/news/Sep2004/d20040914adminreview.pdf.
272. See Order on Administrative Review Procedures, supra note 221, at 3, 7-8.
273. See id. at 3, 8. The Secretary of the Navy was so designated for this task. See News Release, U.S. Dep't of Def., Defense Department Conducts First Administrative Review Board, No. 1292-04 (Dec. 14, 2004), available at http://www.defenselink.mil/releases/release.aspx?releaseid= 8068.
274. See Order on Administrative Review Procedures, supra note 221, at 4.
275. See id. at 5.
276. See id. at 4-6.
277. See id. at 6.
278. See News Release, U.S. Dep't of Def., supra note 224.
279. For the dates and results of the CSRT proceedings, see U.S. DEP'T OF DEF., ADMINISTRATIVE REVIEW BOARD SUMMARY, http://www.defenselink.mil/news/Jan2006/d20060130arb.pdf (last visited May 4, 2007).
280. See U.S. DEP'T OF DEF., ADMINISTRATIVE REVIEW BOARD SUMMARY: ARB-2, http://www.defenselink. mil/news/arb2.pdf (last visited May 4, 2007).
281. Detainee Treatment Act of 2005, Pub. L. No. 109-148, § 1005, 119 Stat. 2739 (2005).
282. Rasul v. Bush, 542 U.S. 466 (2004).
283. Detainee Treatment Act, § 1005(a)(1).
284. Id. § 1005(a)(3), (b)-(d).
285. The D.C. Circuit Court of Appeals is limited to considering: (i) whether the status determination of the [CSRT] with regard to such alien was consistent with the standards and procedures specified by the Secretary of Defense for [CSRTs] (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence); and (ii) to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with [them]. Id. § 1005(e)(2)(C).
286. See, e.g., U.S. DEP'T OF DEF., COMBATANT STATUS REVIEW TRIBUNAL (CSRT) AND ADMINISTRATIVE REVIEW BOARD (ARB) DOCUMENTS RELEASED MARCH 3, APRIL 3, AND APRIL 19, 2006: TESTIMONY OF DETAINEES BEFORE THE COMBATANT STATUS REVIEW TRIBUNAL, http://www.dod.mil/pubs/foi/detainees/csrt/index.html (last visited June 27, 2007).
287. See Press Release, U.S. Dep't of Def., Detainee Release Announced (Nov. 17, 2006). available at http://www.defenselink.mil/Releases/ Release.aspx?ReleaseID=10204 (reporting that detainees had been transferred to Albania, Afghanistan, Australia, Bahrain, Belgium, Denmark, Egypt, France, Germany, Iran, Iraq, Jordan, Kuwait, Maldives, Morocco, Pakistan, Russia, Saudi Arabia, Spain, Sweden, Sudan, Tajikistan, Turkey, Uganda, United Kingdom, and Yemen).
288. See id.
289. See Geneva Convention III, supra note 2, art. 12.
290. See U.S. DEP'T OF DEF., COMBATANT STATUS REVIEW TRIBUNAL SUMMARY, supra note 219;
291. see also News Release, U.S. Dep't of Def., Defense Department Special Briefing on Combatant Status Review Tribunals (Mar. 29, 2005), http://www.defenselink.mil/transcripts/2005/tr20050329-2382.html (statement by Secretary of the Navy that of the "558 CSRT hearings conducted, the enemy combatant status of 520 detainees was confirmed. The tribunals also concluded that 38 detainees were found to no longer meet the criteria to be designated as enemy combatants. So 520 enemy combatants, 38 non-enemy-combatants.").
292. These persons have been referred to at times as "No Longer Enemy Combatants" or "NLEC." See Guantánamo Bay Detainees Classified as "No Longer Enemy Combatants," WASH. POST, http://projects.washingtonpost.com/guantanamo/nlec (last visited June 27, 2007).
293. See U.S. DEP'T OF DEF., ADMINISTRATIVE REVIEW BOARD SUMMARY, supra note 230.
294. See Craig Whitlock, 82 Inmates Cleared But Still Held at Guantanamo, WASH. POST, Apr. 29, 2007, at Al (reporting information obtained from U.S. government officials and lawyers for the detainees).
295. These persons were nationals of various countries: Afghanistan; Algeria; China; Egypt; France; Jordan; Maldives; Russia; Saudi Arabia; Sudan; Turkey; and Yemen. See Guantanamo Bay Detainees Classified as "No Longer Enemy Combatants, " supra note 241 (listing the detainees, their nationality, and providing links to transcripts of their CRST proceeding).
296. See Craig Whitlock, U.S. Faces Obstacles to Freeing Detainees, WASH. POST, Oct. 17, 2006, at A1.
297. See News Release, U.S. Dep't of Def., Defense Department Special Briefing on Combatant Status Review Tribunals, supra note 241.
298. See Press Release, U.S. Dep't of State, Release of Three No Longer Enemy Combatant (NLEC) Detainees from Guantánamo (Nov. 17, 2006), available at http://www.state.gov/r/pa/prs/ps/2006/76275.htm.
299. See 3 PICTET COMMENTARY, supra note 87, at 543.
300. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 3, Dec. 10, 1984, S. TREATY DOC. NO. 100-20 (1988), 1465 U.N.T.S. 85. The Convention entered into force for the United States in 1994.
301. 8 U.S.C. § 1231 note (2000). For the Immigration and Naturalization Service implementing regulations, see 8 C.F.R. §§ 208.16(c), 208.18 (2005). For the Department of State implementing regulations, see 22 C.F.R. § 95.2-4 (2005). Taking account of such concerns is consistent with the practical implementation of the laws of war. As far back as the aftermath of the Korean War, it has been accepted that in exceptional cases prisoners need not be forced to return to their homeland against their will, and that the obligation to treat them humanely includes taking into account the conditions that they might face upon repatriation.
302. See G.A. Res. 610, ¶ 2, UN GAOR, 7th Sess., Supp. No. 20, UN Doc. A/2361 (Dec. 3, 1952) (affirming that force shall not be used against POWs either to prevent or to effect their repatriation and that they shall at all times be treated humanely);
303. see also 3 PICTET COMMENTARY, supra note 87, at 547-48;
304. R.R. Baxter, Asylum to Prisoners of War, 30 BRIT. Y.B. INT'L L. 489, 489 (1953);
305. Jaro Mayda, The Korean Repatriation Problem and International Law, 47 AM. J. INT'L L. 414, 414 (1953). Having said that, the soundest course of action in the event that detainees are not to be repatriated is to have their consent verified by an entity other than the detaining power, such as the ICRC.
306. See John R. Crook, Contemporary Practice of the United States Relating to International Law, 100 AM. J. INT'L L. 690, 710-11 (2006).
307. See Robin Wright, Chinese Detainees Are Men Without a Country, WASH. POST, Aug. 24, 2005, at A1. Two of the men filed suit in U.S. court seeking habeas relief but were unsuccessful before the district court.
308. See Qassim v. Bush, 407 F. Supp. 2d 198, 203 (D.D.C. 2005), appeal dismissed, 466 F.3d 1073 (D.C. Cir. 2006).
309. See Associated Press, 3 Detainees at Guantánamo Are Released to Albania, WASH. POST, Nov. 18, 2006, at A13;
310. Whitlock, supra note 245.
311. Military Commissions Act of 2006, Pub. L. No. 109-366, 120 Stat 2600 (2006).
312. See Hamdi v. Rumsfeld, 542 U.S. 507, 517 (2004) ("There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for [the 9/11] attacks, are individuals Congress sought to target in passing the AUMF. We conclude that detention of individuals falling into the limited category we are considering, for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the 'necessary and appropriate force' Congress has authorized the President to use." (emphasis added)).
313. Detainee Wants to Be Relocated for Surgery, WASH. POST, Nov. 19, 2006, at A10.
314. Geneva Convention III, supra note 2, art. 110.