Review of Common Article 3 and Customary International Humanitarian Law from “Due Process and International Terrorism” by Roza Pati

Common Article 3 and Its Significance

Common Article 3 of the Geneva Conventions sets forth the minimum standards of treatment to be afforded to individuals who are not taking part in hostilities during armed conflicts. It applies to conflicts not of an international character and prohibits violence to life and person, cruel treatment, and torture. Common Article 3 serves as a fundamental safeguard for individuals caught in the midst of armed conflicts, ensuring they are treated with humanity and dignity.

Application to Terrorist Attacks and Criminal Actions

When individuals are charged with committing acts of terrorism or other criminal actions against nation-states, Common Article 3 still applies. Despite the nature of their alleged crimes, defendants are entitled to basic human rights protections under Common Article 3, including fair treatment, protection from torture, and access to due process. This ensures that even in cases involving terrorism, defendants are afforded fundamental rights in line with international humanitarian law.

Relationship to Due Process Rights and Human Rights

Common Article 3 intersects with due process rights and human rights by emphasizing the importance of fair treatment and humane conditions for all individuals, regardless of their actions. Upholding the principles outlined in Common Article 3 not only protects the rights of defendants but also upholds the broader values of justice, dignity, and respect for human life. By ensuring that individuals accused of terrorist acts are treated in accordance with humanitarian law, due process rights and human rights are upheld even in challenging circumstances.

Indefinite Detention to Prevent Future Acts of Terrorism or Investigate Past Acts

On page 438 of the textbook, the author discusses the concept of indefinite detention as a means to prevent future acts of terrorism or to investigate past terrorist acts. This practice involves holding individuals in custody without trial or formal charges based on suspicions of involvement in terrorism. The rationale behind indefinite detention is to preemptively address security threats and gather intelligence to prevent future attacks.

Opinion on Indefinite Detention

While indefinite detention may be seen as a necessary measure to combat terrorism and protect national security, it raises significant concerns regarding due process rights and human rights. The practice of holding individuals without formal charges or a fair trial undermines the principles of justice and can lead to abuses of power. Balancing security needs with respect for individual rights is crucial in addressing terrorism effectively while upholding the rule of law and fundamental freedoms.

In conclusion, Common Article 3 and Customary International Humanitarian Law provide essential protections for individuals involved in armed conflicts, including those accused of terrorist acts. Upholding these standards ensures that even in cases involving terrorism, due process rights and human rights are safeguarded. The use of indefinite detention to prevent terrorism raises complex ethical and legal considerations that necessitate a careful balance between security imperatives and respect for human dignity and justice.