One of the issues brought up in the Hamdan case is the question of whether or not the detainees are covered by Article 3 of the Geneva Convention. It is thought to be important because Common Article 3 prohibits inhuman treatment of prisoners and requires certain due process rights. But as we will later see, it is possible that Article 3 does not apply to these prisoners. But that should not mean that they can be treated inhumanely or provided with no due process? No.
The Supreme Court’s attitude toward the Hamdan case shows one of the dangers of a positivist view of human law. If something has to be enacted by a treaty or statute or other document in order to have the force of law, then people who are not specifically covered by express positive law have no legal protections. Within the traditional Christian Natural Law view of human law, all human beings are created in the image of God and therefore are entitled to certain basic rights. These rights may not always be as broad as what the Supreme Court has interpreted the Constitution to mean. But in some cases they are probably broader than what the Supreme Court has interpreted our Constitution to mean—such as in the right of the unborn to protection from intentional homicide.
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