Government Merits Brief - Hamdan v. Rumsfeld

39
applicable to “all cases of declared war or of any other armed
conflict which may arise between two or more of the High
Contracting Parties” or of armed conflict between a High
Contracting Party and a “Power[] in conflict” that is not a
High Contracting Party insofar as it “accepts and applies the
provisions” of the Convention. 6 U.S.T. at 3318, 75 U.N.T.S.
at 136. Al Qaeda indisputably is not a “High Contracting
Party” that has ratified the Geneva Convention. Nor can al
Qaeda qualify as a “Power[] in conflict” that could benefit
from the Convention. The term “Power” refers to States that
would be capable of ratifying treaties such as the Convention—something
that a terrorist organization like al Qaeda
cannot do. 14 And even if al Qaeda could be thought of as a
“Power” within the meaning of the Convention, it has not
“accept[ed] and applie[d] the provisions” of the Convention,
but has instead openly flouted them by acting in flagrant defiance
of the law of armed conflict. As a result, al Qaeda and its
members are not entitled to the Convention’s protections. A
contrary interpretation would discourage States from joining
and honoring the Convention. 15
14 See, e.g., G.I.A.D. Draper, The Red Cross Conventions 16 (1958) (arguing
that “in the context of Article 2, para. 3, ‘Powers’ means States capable then
and there of becoming Contracting Parties to these Conventions either by
ratification or by accession”); 2B Final Record of the Diplomatic Conference of
Geneva of 1949, at 108 (explaining that Article 2, para. 3, would impose an
“obligation to recognize that the Convention be applied to the non-Contracting
adverse State, in so far as the latter accepted and applied the provisions
thereof”).
15 The conclusion that the Convention does not apply to conflicts with a
terrorist network like al Qaeda is underscored by the fact that the United
States has refused to ratify protocols that would extend the Geneva Convention
to other types of conflicts and combatants. See Protocol Additional to the
Geneva Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts (Protocol I), June 8, 1977, 1125
U.N.T.S. 3; Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International Armed Conflicts