Hamdan and Article 3

There's a lot of digital ink being spilled over today's Hamdan decision, understandably enough, and I think the most interesting element of the case is the Supreme Court's holding that Common Article 3 of the Geneva Conventions applies to Al Qaeda, or at least to Hamdan (who was captured by our Afghan allies in Afghanistan).

We talked a good bit about the Geneva Conventions at the JAG School, and it was considered particularly important that we be able to identify the types of conflicts when the conventions do and do not apply. Suffice it to say that the War on Terror has made this an extremely difficult project, though I was definitely left with the impression that the great majority of instructors were convinced that at least Common Article 3 should apply to the Al Qaeda detainees.

Stuart Benjamin at the Volokh Conspiracy has a good post pointing out that even the dissenters don't argue that this is the wrong interpretation, merely that the court should defer to the President's own plausible interpretation.

Many others are discussing the merits of this issue, but I want to focus on a related tangent. In comments to Benjamin's post, I pointed to an even more vexing question that no one at the JAG School could answer to their own satisfaction.

While it might be hard at first glance to see how the strict language of common Article 3 ("armed conflict not of an international character") applies to Al Qaeda, it is at least as confusing to understand how the administration continues to hold, which it does, that the full Geneva conventions still apply to the conflict in Iraq. Here's the relevant text of Article 2:

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

In Iraq, whom is the conflict between? I think it is hard to argue that there is still an armed conflict between two or more "High Contracting Parties" as the strict language of the convention requires. Furthermore, we have been quite clear that the occupation of Iraq is now over, so the conventions don't sneak in that way either. What basis is left for application of Article 2? It is a question posed by many and satisfactorily answered by none.