Are You There, Geneva? It's Me, Guantanamo

Keith A. Petty, Judge Advocate General's Corps, Office of Military Commissions

Abstract

This essay examines the application of the Geneva Conventions at the Guantánamo Bay Military Commissions. International and domestic commentators have long criticized the military commissions for failing to adhere to the laws of armed conflict enshrined in Geneva, referring to Guantánamo as a “legal black hole.” This criticism, however, is misplaced. Since the attacks of September 11, 2001, the legal framework for prosecuting suspected terrorism detainees has evolved. The underlying reason for this is a considerable gap in the Geneva protective regime for combatants who do not satisfy the legal requirements of prisoners of war (GCIII) or civilians (GCIV). Nonetheless, the Military Commissions Act of 2006 codifies the U.S. application of the laws of war to Guantánamo accused. As the pre-trial litigation in the case United States v. Hamdan demonstrates, the Geneva Conventions have been faithfully applied by the military commissions contributing to a trial process that is full and fair.