미국의 대테러전쟁과 2006년 군사위원회법에 관한 법적 분석

After attacks by the Al Qaeda on September 11, 2001, the United States characterized these terrible attacks as an act of terrorism. However, the United States changed the characterization and called them an act of war in the later stage. On October 7, 2001, the United States began to attack Afghanistan in the name of “war on terror”. While carrying out war on terror, the United States detained for a long time and without charges some members of Al Qaeda and soldiers of Taliban government in Guantanamo bay, Cuba and the United States did not give them the status of the prisoners of war under the international humanitarian law. In 2006, the U.S. Supreme Court held in Hamdan v. Rumsfeld that common article 3 of the Geneva Conventions of 1949 is applicable to the detainee in the Guantanamo bay and the United States government cannot try them in the military commissions established by the President’s executive order since the commissions are not “a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples” under common article 3. In this regard, the U.S. government and the U.S. Congress enacted Military Commission Act of 2006 (MCA) which declares explicitly that the military commission established by the MCA is a “regularly constituted court” under common article 3 of the Geneva Convention and authorize the military commission to try Guantanamo detainees. In this article, the author reviewed the main articles of the MCA and concluded that the MCA may be inconsistent with international human rights law standards and international humanitarian law. Further, the author shares the view by many scholars that the MCA seems to be in violation against the principle of due process and separation of powers under the United States Constitution.