Eagle or Ostrich? The Application of the Geneva Convention (III) in the Jurisprudence of the United States Supreme Court

Abstract

This article will examine the extent to which the Geneva Convention (III) (Convention relative to the Treatment of Prisoners of War) has been applied, if at all, by the United States Supreme Court. While the direct application of the Convention will be considered, emphasis will be given to other, arguably less direct, instances of application. For instance, the use of the well-established canon of statutory interpretation that Acts of Congress be read, as much as possible, in conformity with international law. In this context, the recent judgments of the Court in Hamdi v Rumsfeld and Rasul v Bush will be considered. It will be observed that enforcement of the Convention, which is an example of direct application, is often left to military commissions rather than the Court itself. That is not to say the Court does not perform an oversight function at the fulcrum of the United States judicial hierarchy. However, the level of oversight is dependent on a multitude of factors that include whether the victim/detainee is a United States citizen, whether the detention is on United States' soverein territory, etc. The article will consider these 'threshold' factors. In a nutshell, the contention will be that the Court has shown a surprising deference in its jurisprudence to the Convention. Of course, its deference has been within the constraints of the overarching United States' constitutional structure, which divides power amongst three arms of government, namely, the executive, legislature and judiciary. Within this framework, as we will see, the Court has a limited but important role to play.