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Salim Ahmed Hamdan v. Donald H. Rumsfeld

Court Court of Appeal for the District of Columbia, United States
Case number 04-5393
Decision title Appeal from the United States District Court for the District of Columbia (No. 1:04-cv-01254)
Decision date 15 July 2005
  • Salim Ahmed Hamdan
  • Donald H. Rumsfeld et al
Other names
  • Hamdan I
Categories War crimes
Keywords civilian objects, common Article 3, destruction of property, international armed conflict, jurisdiction, violence to life
Other countries involved
  • Afghanistan
  • Cuba
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Salim Ahmed Hamdan, a Yemeni citizen, was Osama bin Laden’s driver. Captured in Afghanistan in 2001 by members of the United States Armed Forces, he was transferred to the United States detention centre at Guantanamo Bay in 2002. By an order of the President of the United States, Hamdan was designated to stand trial before a United States Military Commission for charges of conspiracy to commit multiple offenses, including attacking civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism. Hamdan’s counsel applied for a writ of habeas corpus alleging that the military commissions were unlawful and trial before them would violate Hamdan’s rights of access to a court.

The present decision by the Court of Appeal for the District of Columbia reversed an earlier decision of the District Court for the District of Columbia. The Court of Appeal found that the Geneva Convention was not judicially enforceable so Hamdan cannot rely on it before the federal courts. The Court continued that, even if it were, Hamdan was not entitled to its protection because the Convention did not apply to Al Qaeda members. Hamdan’s trial could proceed before a military commission. 

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Procedural history

In late 2001, Hamdan, the former driver of Osama Bin Laden, was captured in Afghanistan and detained by American military forces. In June 2002, Hamdan was transferred to the detention facility set up by the United States Department of Defense at Guantanamo Bay, Cuba.

On 3 July 2003, the President of the United States designated Hamdan for trial by military commission.

In December 2003, Hamdan was placed in isolation in Camp Echo, a facility within the detention centre at Guantanamo Bay and military counsel was appointed for him. On 12 February 2004, Hamdan’s counsel filed a demand for charges and speedy trial under Article 10 of the Uniform Code of Military Justice (UCMJ). On 23 February 2004, the Appointing Authority designated by the Secretary of Defense to issue orders establishing and regulating the military commissions, ruled that the UCMJ did not apply to Hamdan’s detention.

On 6 April 2004, Hamdan’s counsel filed before the District Court for the Western District of Washington a petition for habeas corpus.

On 9 July 2004, Hamdan was formally charged with conspiracy to commit: attack on civilians and civilian objects, murder by an unprivileged belligerent, destruction of property by an unprivileged belligerent and terrorism.

On 8 November 2004, the District Court for the District of Columbia held that Hamdan could not be tried by a military commission unless a competent tribunal determined that he was not a prisoner of war under the 1949 Geneva Convention.

The Government of the United States appealed.

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Related developments

On 7 November 2005, the Supreme Court issued a writ of certiorari to hear the case.

On 29 June 2006, the Supreme Court reversed the decision of the Court of Appeals considering that the military commissions as established by the Bush Administration violated the Uniform Code of Military Justice as well as the 1949 Geneva Conventions, particularly Common Article 3.

The United States Congress subsequently passed the Military Commissions Act of 2006.

On 6 August 2008, a United States Jury composed of six military officers convicted Hamdan of providing material support for terrorism. He was acquitted on the charge of conspiracy and three of the eight charges of material support. He was sentenced to 66 months’ confinement, but the military judge credited him with 61 months and 8 days for the time he spent in pre-trial detention. On 24 November 2008, Hamdan was transferred to Yemen where he remained in prison until 27 December 2008.

Hamdan appealed his conviction to the US Court of Military Commission Review. By a decision of 24 June 2011, Hamdan’s conviction and sentence was affirmed.

Hamdan appealed to the Court of Appeals for the District of Columbia. By a decision of 16 October 2012, the Court of Appeal overturned Hamdan’s conviction on the grounds that material support for terrorism was not a war crime before 2001 (see J.H. Cushman, 'Appeals Court Overturn Terrorism Conviction of Bin Laden’s Driver', The New York Times, 16 October 2012).

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Legally relevant facts

Hamdan was Osama Bin Laden’s driver. He was captured in Afghanistan in 2001 and transferred to Guantanamo Bay in 2002 (p. 4).

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Core legal questions

  • Can the 1949 Geneva Convention relative to the Treatment of Prisoners of War be enforced in federal court?
  • In the affirmative, are the provisions of the Convention applicable to Hamdan as a member of Al Qaeda?
  • In the negative, does Army Regulation 190-8 provide a basis for relief?

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Specific legal rules and provisions

  • Articles 82 and 86 of the 1929 Geneva Convention Relative to the Treatment of Prisoners of War.
  • Articles 1, 3, 4, 8, 11, 102 and 132 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War.
  • Paragraph 907 of the Restatement (Third) of the Foreign Relations Law of the United States.
  • Paragraph 1 of US Army Regulation 190-8.

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Court's holding and analysis

As a general principle, treaties are traditionally negotiated by the United States on the basis that they do not create judicially enforceable individual rights (p. 10). Following the earlier case law of the United States Supreme Court in Johnson v. Eisentrager in relation to the 1929 Geneva Convention, the Court held that the more recent 1949 Geneva Convention was not judicially enforceable. Although it specifies rights of prisoners of war, the observance and enforcement of those rights falls upon political and military authorities (p. 11). The differences between the 1929 and 1949 Geneva Convention did not suffice to alter the Court’s conclusion considering that nothing in the 1949 version altered the method by which a State would enforce compliance (p. 12).

Even in the event that the 1949 Geneva Convention could be enforced in court, Hamdan could still be tried by military commission because he does not fall within the definition of a prisoner of war set out in Article 4 of that Convention. Furthermore, the Convention is not applicable to Al Qaeda and its members. The Court reached this conclusion on the basis that Al Qaeda is not party to either an international armed conflict (because it is neither a High Contracting Party nor a Power), or a non-international armed conflict (as the conflict in Afghanistan is not occurring solely on Afghan territory) (pp. 13-15).

Army Regulation 190-8 cannot provide basis for relief. Although the Regulation provides that prisoners receive the protections of the Geneva Convention until some other legal status is determined by a competent authority or competent tribunal, a military commission is such a tribunal. Hamdan could therefore assert his claim to prisoner of war status before the military commission at the time of his trial (p. 19).

The judgment of the District Court is reversed (p. 20).

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Further analysis

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Instruments cited

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Related cases

A very important, related case is Rasul v. Bush (2004). This case marked the beginning of litigation by the Center for Constitutional Rights against the US' treatment of Guantanamo detainees and their procedural rights. In this case, the US Supreme Court ruled that US courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals captured abroad in the course of armed conflict and subsequently detained in Guantanamo Bay.

The litigation eventually resulted in the 2008 Boumediene v. Bush-ruling, where the Supreme Court found that Guantanamo detainees have a right to file habeas corpus petitions in order to review the lawfulness of their detention.

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Additional materials