The Military Commissions Act's Inconsistency with the Geneva Conventions: An Overview

The Military Commissions Act codifies a wide range of provisionsthat are inconsistent with binding international humanitarianlaw standards. In spite of the Act's title, these inconsistenciesgo well beyond the rules and procedures governing the trailof terrorist suspects before military commissions. In additionto violating fundamental fair trial guarantees defined in internationalhumanitarian law, the Act misapplies the Geneva Conventionsby adopting a ‘one size fits all’ approach to thecharacterization of all counter-terrorist operations, providesfor an overly broad definition of unlawful combatant statusthat effectively deprives terror suspects of applicable lawof war protections, repudiates longstanding ‘elementaryconsiderations of humanity’ contained in common Article3 and entrenches a detention regime that does not comport withthe terms of the Geneva Conventions. These departures from internationalhumanitarian law are reinforced by provisions of the Act thatpurport to insulate US government personnel and their agentsfrom contrary interpretation and judicial scrutiny. The Actis thus best described as a series of breaches rather than developmentsof international humanitarian law, and as such, signals a starkdeparture from the US's historical commitment to the laws ofwar.