The Proliferation of the Law of International Criminal Tribunals Within Terrorism and "Unlawful" Combatancy Trials After Hamdan v. Rumsfeld

This Article examines the arguments that led the Supreme Court to its landmark judgment, in particular: (i) the jurisdiction of federal courts to ascertain procedural challenges to the lawfulness of military commission proceedings; (ii) the relation to the Geneva Convention; (iii) the aspect of conspiracy as a (non-)legal basis for indictments issued before military commissions, especially in the argument raised by the defense in the Hamdan case; and (iv) the case law of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) with respect to the concept of conspiracy and joint criminal enterprise (“JCE”). The case law of the ICTY, as this Article argues, is also relevant to the interpretation of Common Article 3 of the Geneva Convention. This Article also addresses the legal, political, and international (criminal) law implications of the Hamdan decision and examines the proposed New Code of Military Commissions (“CMC”) for its compliance with international law.