The Influence of International Law on the Military Commissions Act 2006: The Glass Half Full or Half Empty?

摘要

It is tempting to posit the thesis that, but for international law, the MCA would not exist. However tempting, two facts prevent this conclusion from being drawn with certainty. First, the majority in Hamdan v. Rumsfeldprovided various reasons for striking down the military commissions process provided for in MCO No. 1. Not all relate to international law. Secondly, it could be argued that United States obligations under the Geneva Conventions are not strictly a matter of international law, but rather are a matter of domestic law given the status of the conventions under the U.S. Constitution. Yet it is possible to conclude that international law has exerted a profound influence over the MCA. International law has been subject to unprecedented discourse by legislators in the passage of the MCA. The personal jurisdiction of the military commissions has changed from terrorists as designated by the executive, to unlawful combatants in accordance with criteria and processes thematically derived from international law. The subject matter jurisdiction of the Act includes both war crimes and domestic crimes, but draws heavily upon international law.