LESSONS ENCOUNTERED

9/11 and After: Legal Issues, Lessons, and Irregular Conflict
The Parties to the conflict should further endeavor to bring into force, by means of special
agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the Parties to the
conflict.
This Common Article appears in the three other 1949 Geneva Conventions dealing with
Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea, Prisoners of War, and
Civilians in Time of Armed Conflict. Ibid., 223–224, 245, 302.
65
U.S. Const. art. VI.
66
Medellin v. Texas, 128 U.S. 1346 (2008).
67
Article 134 of the Uniform Code of Military Justice, the “general article,” allows the
military to import noncapital Federal criminal statutes and charge them in a military
court-martial. 10 U.S.C. §934. Art. 134 (1956). Thus, Article 134 incorporates the War
Crimes Act of 1996.
68
See, for example, Roberts and Guelff, 196. See also Dinstein, Conduct, chapter one; W.
Michael Reisman and Chris T. Antoniou, The Laws of War (New York: Vintage, 1994),
xix–xxi; Theodor Meron, “The Geneva Conventions as Customary Law,” American Journal
of International Law 81, no. 2 (April 1987), 348–370.
69
On the U.S. position with respect to parts of Protocols I and II, see Michael J. Matheson,
then Deputy Legal Adviser, U.S. Department of State, “The United States Position on the
Relation of Customary International Law to the 1977 Protocols Additional to the 1949
Geneva Conventions,” American University Journal of International Law and Policy, vol.
2 (1987), 415, 419. See also Kenneth Anderson, “Wall Street Journal Mistaken About the
Obama Administration and Protocol I?” TheVolokhConspiracy.com, available at
(comments by John Bellinger III, formerly Legal Adviser to the
National Security Council, 2001–2005, and Legal Adviser to the Department of State,
2005–2009, on the Obama administration decision to be guided by Article 75 of Protocol
I, pertaining to humane treatment of detainees, even though the United States is not a
party to Protocol I, and Article 75 does not codify customary international law). See also
Nicholas Rostow, “The World Health Organization, the International Court of Justice, and
Nuclear Weapons,” Yale Journal of International Law 20, no. 1 (1995), 151, esp. 163–173,
and citations therein.
70
Adam R. Pearlman, “Meaningful Review and Process Due: How Guantanamo Detention
is Changing the Battlefield,” Harvard National Security Law Journal 6, no. 1 (2015),
255; but see Donald Rumsfeld, Known and Unknown: A Memoir (New York: Sentinel,
2011), 563–569, for a different view of the decisionmaking process.
71
Jack Goldsmith, The Terror Presidency: Law and Judgment inside the Bush Administration
(New York: Norton, 2007), 22.
72
Dinstein, War, 5–8.
389