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Sunday, September 03, 2006

Hamdan Once More

My earlier post discussing the possible implications of the Hamdan decision for the ability of GTMO detainees to present claims to POW status generated a number of interesting comments, the general thrust of which was to emphasize that the Court went out of its way in Hamdan not to expressly exclude the possibility of finding that an international armed conflict may have existed vis-a-vis at least some al Qaeda detainees.   The most recent of the comments - that by Gabor Rona of HRF (and formerly of the ICRC) - raises a couple of interesting issues.

Among other things, Gabor asserts that the conflicts in Afghanistan and Iraq have transitioned from international armed conflict ("IAC") status to non-international armed conflict ("NIAC") status.  I'm far from certain about this, but I seem to recall that the U.S. government's position is to the contrary as to both conflicts.  If any readers (including Gabor, of course) can confirm this, I'd be quite interested in hearing more about the merits of this dispute. 

Gabor also notes that detainees in the IAC context normally receive "protected person" status under the 4th Geneva Convention if determined to be ineligible for POW status.   It is not clear to me, though, whether he (or HRF, or the ICRC) agrees with the position that both Dave Glazier and I took (in the comments section to the earlier post) to the effect that the diplomatic-relations exception to protected-person status likely would preclude most GTMO detainees from asserting such status.  Is there an argument that the diplomatic-relations exception does not preclude a claim to protected-person status by, say, David Hicks of Australia?

Posted by Bobby Chesney on September 3, 2006 at 03:50 PM | Permalink

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