A Treaty We Can Live With: The Overlooked Strategic Value of Protocol Ii

Summary

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The four attacks resulted in the death of over 3000 people of seventy-eight different nationalities.14 On 7 October 2001, President George W. Bush announced that the United States military has begun strikes against al Qaeda terrorist training camps and military installations of the Taliban regime in Afghanistan.

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A Treaty We Can Live With: The Overlooked Strategic Value of Protocol Ii

Introduction

The Global War on Terror (GWOT) has dominated the consciousness of the United States and the world since the horrific attacks on September 11, 2001. Many aspects of this war have been the subject of vigorous debate, but the status and treatment of detainees has been a lightning rod for controversy since the arrival of the first detainees in Guantanamo Bay, Cuba (GTMO) in early 2002. Legal scholars, pundits, and human rights groups have all struggled with the following questions: What rights, if any, should detainees receive? Are they prisoners of war? How long can the United States hold them? Can the detainees challenge their detention in federal court? These questions have been transformed into numerous legal challenges in U.S. courts, including the recent U.S. Supreme Court decision in Hamdan v. Rumsfeld.2

Not surprisingly, the Hamdan ruling did not resolve the debate, but merely advanced it to the next step. The Supreme Court determined, in part, that Common Article 3 to the Geneva Conventions3 is applicable to the armed conflict with al Qaeda and the GWOT.4 However, the Court left unclear the standard of treatment required to satisfy this "humane treatment" obligation. A plurality of the Court did, however, look to Article 75 of Protocol I to the Geneva Conventions to illuminate the meaning of "fundamental guarantees" required by the law of armed conflict.5 The meaningful guidance with respect to military commission trial procedures did little to clarify treatment standards outside the courtroom and neither has the subsequent response by the Bush Administration and Congress.6

In spite of this apparent vacuum of guidance on detainee treatment standards, there is one law of armed conflict treaty that, thus far, all parties appear to have overlooked: Protocol II to the Geneva Conventions.7 This treaty provides expanded guidance on the implementation of the "humane treatment" mandate found in Com...

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