Cornell Law Review Volume 90 Issue 1

Is the President Bound by the Geneva Conventions?

The United States is a party to several treaties that regulate the conduct of war, including the 1949 Geneva Conventions on the Protection of War Victims.  These treaties require belligerent states, as a matter of international law, to accord fair and humane treatment to enemy nationals subject to their authority in times of war.  Moreover, these treaties are, as a matter of domestic law, part of the Supreme Law of the Land.  The scope and content of the Conventions have assumed central importance in debates about U.S. policy towards al Qaeda and Taliban detainees held at Guantanamo Bay, Cuba.  Critics charge that several aspects of U.S. policy toward the detainees violate the Conventions.  In response, the Bush Administration maintains, among other things, that the Conventions are not binding on the President as a matter of domestic law because the President has the constitutional authority to violate the Conventions in the interest of protecting national security.  This Article evaluates the Bush Administration’s claims.

 

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