Government Merits Brief - Hamdan v. Rumsfeld

49
armed conflicts, * * * which are in many respects similar to
an international war, but take place within the confines of a
single country.” Id. at 37 (emphasis added). 24
Petitioner relies on Kadic v. Karadzic, 70 F.3d 232 (2d Cir.
1995), which held that Article 3 “binds parties to internal conflicts”
even if they are not States. Id. at 243. That case, however,
did not consider the applicability of Article 3 to a conflict
that is not internal to a single State, such as that between the
United States and al Qaeda. As the court of appeals explained
in this case, such a conflict may reasonably be described as
being “of an international character” and therefore outside
the scope of Article 3. Pet. App. 12a. 25
In any event, petitioner’s military commission complies
with Article 3. In relevant part, Article 3 prohibits “[t]he
passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted
court affording all the judicial guarantees which are recognized
as indispensable by civilized peoples.” 6 U.S.T. at 3320,
75 U.N.T.S. at 138. Petitioner’s military commission, governed
by the extensive procedural protections set out in 32
24 Judge Williams’s contrary view (Pet. App. 16-18) not only conflicts with the
text of Article 3 and the ICRC Commentary, but also with the provision’s
drafting history. The ICRC’s draft version provided that Article 3 would apply
to armed conflicts “not of an international character, * * * which may occur in
the territory of one or more of the High Contracting Parties.” ICRC
Commentary 31 (emphasis added). The fact that the final text excluded the
phrase “or more” confirms that Article 3 does not extend beyond civil wars and
domestic insurgency movements wholly internal to a single State.
25 Petitioner also claims (Br. 49) that certain international tribunals have
held that the standards set out in Article 3 apply in all conflicts as customary
international law. That disregards the text of Article 3. And, in any event, such
customary international law cannot override a controlling executive act, such
as the President’s Military Order in this case. See The Paquete Habana, 175
U.S. 677, 700 (1900) (holding that customary international law applies where
there is “no controlling executive or legislative act or judicial decision”).