Jonathan Berman Takes a Road Trip to Geneva

Judith Butler, in Precarious Life, writes that the US,

"breaks its international contracts, and then asks whether other countries are with America or against it. It expresses its willingness to act consistently with the Geneva Conventions, but it refuses to be bound to that accord, as is stipulated by its signatory status (40).

This part stuck out to me because I had just listened to a guest speaker who had come into my international law class and discussed the legal aspects of the "War on Terrorism."

After reading Hamdan v. Rumsfeld I can tell you that Butler is wrong. First, in Hamdan, the D.C Circuit Court of Appeals dismissed Hamdan's claims saying that given the legal traditions of the US, "[i]nternational agreements, even those directly benefiting private persons, generally do not create private rights or provide for a private cause of action in domestic courts" (10).

However, even if the Geneva Conventions did apply to Hamdan (and others in Guantanamo Bay) they could not help him. Under Article 4 of the Geneva Conventions Hamdan is not a prisoner of war because he does not claim to be a member of a group that displayed "a fixed distinctive sign recognizable at a distance" and "conducted [his]...operations in accordance with the laws of war" (14). Thus, Hamden like many terrorists does not wear a uniform, did not visibilly display his weapon

The circuit court goes onto say that the 1949 Geneva Conventions do not apply to Al Qaeda because Al Qaeda is not a "High Contracting Pary" (14). Of course, powers are bound to follow the convention when fighting an non-contracting party, however, this is only if the opposing party accepts and applies the convention. The court took notice that Al Qaeda has not accepted or applied the convention (14).

Thus, for Butler to say that the US is not following the Geneva Conventions is simply wrong. If she wants to pursue an argument on the way we're treating the detainees or that we're rounding up the wrong people I can accept that but to say the US has broken international law is simply wrong.

However, the case is heading to the Supreme Court later this year so this might change. But I doubt it.