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June 30, 2006



Dr. Vasquez:

Could you comment on the possible applicability of the Yamashita precedent as it applies to potential war crimes charges against the current administration and its chain of command. The Yamashita case is frequently cited in the Hamden decision, and, as you are no doubt aware, Yamashita was sentenced to death "for failing to prevent troops under his command from committing atrocities in the Philippines" despite the fact that he was unaware that atrocities were taking place.

It seems to me that, with SCOTUS stating that Common Article 3 applies, the US government will have to revisit the question of culpability of those in the chain of command for abuses at Abu Ghraib and Guantanamo -- and if the US fails to do so, Bush and his subordinates could be tried by an international tribunal.

( Would Abu Ghraib be an exception, insofar as the UN agreed to "innoculate" US military personnel from war crimes charges?)


Prof. Vasquez:

As much as I admire your work on treaty law, I must say that I was puzzled by this post. Do you really think that a statute declaring that common Article 3 does not apply to the conflict against al Qeada would not be controlling? The logic of Boerne doesn't apply to this situation. Per Marbury, the Supreme Court may have the final say on the interpetation of the Constitution, but that's only because the Supremacy Clause gives primacy to the Constitution over any statute. But that's not so with treaties. Indeed, at least as a matter of domestic law, it's been settled since the Head Money Cases that Congress can override treaties by statute. So, just as Congress can "correct" a misguided interpretation of a statute by enacting a contrary statute, I fail to see why it couldn't do the same with an interpretation of a treaty. Maybe you call it restoring what Congress sees as the proper interpretation of the treaty; maybe you call it abrogating the domestic law obligation that the treaty imposes by virture of the Court's decision. Either way, the result should be the same.

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