Dehn on Whether Article 5 Hearings Are Required for GTMO Detainees

John C. Dehn has posted "Why Article 5 Status Determinations are Not Required at Guantánamo" (Journal of International Criminal Justice, Vol. 6, Issue 2, pp. 371-383, 2008) on SSRN. From the abstract:

On 17 December 2007 the Military Commission convened to try Salim Ahmed Hamdan ruled that, as part of Hamdan's challenge to its jurisdiction, Article 5 of the Geneva Convention Relative to the Treatment of Prisoners of War (GPW) required the Commission to entertain Hamdan's claims of entitlement to prisoner of war status. The Commission rejected those claims and found Hamdan to be an unlawful combatant subject to its jurisdiction two days later. The author concludes that the Commission's decision to grant an Article 5 status determination was consistent with international humanitarian law. He further argues, however, that the Commission's decisions to conduct the status determination and to consider all-claimed prisoner of war categories under the GPW were inconsistent with the Military Commission Act, specifically its definition of lawful and unlawful combatants and, hence, inconsistent with the US national law governing the Commission.