Moreover, as required by Article 5 of the Third Geneva Convention, the captured combatants should have been treated as POWs unless a competent tribunal determined otherwise. In other words, unless detainees are accorded prisoner of war status, international law requires that they are brought before ordinary civilian courts providing all guarantees of a fair trial. It should be borne in mind that willfully depriving a POW of a fair and regular trial is also a grave breach of the Third Geneva Convention and constitutes a war crime as well.

In the July 29 judgment, the U.S. Supreme Court held that certain guarantees under IHL would nevertheless apply to combatants whose status is not clear. It would include al-Qaeda combatants. The Supreme Court held that as a minimum, Article 3 of Geneva Conventions would apply which provides that all detainees, whether prisoners of war, civilians or so-called unlawful combatants, be treated humanely "in all circumstances". Article 3 of the Geneva Conventions also requires that detainees may not be subject to "cruel treatment and torture" or "outrages upon personal dignity, in particular, humiliating and degrading treatment."

The Supreme Court ruled that by setting up the military commissions, carefully guarded doctrine of separation of powers, under which the executive branch may not usurp the authority of either the judiciary was also violated. In unequivocal terms the US Supreme Court held that "the procedures adopted" in the tribunals "violate the Geneva Conventions". The ruling of the Supreme Court only addressed the legality of the military tribunals. It left out the important question of whether detainees can be held indefinitely or whether Guantanamo Bay should be closed.

Responses to September 11 in the form of military commissions have had shattering consequences for IHL. Military commissions threaten the established principles of international law that have been accepted for years. Impact through military commissions on vital principles of IHL is more worrisome than the September 11 tragedy itself.

Response to events such as international terrorism which take into account the existing law would lead to a far greater legitimacy and credibility for the US in the world. The disastrous changes introduced by the September 11 attacks necessitate the following: pursuing peace and refraining as much from armed violence; respecting IHL and human rights; sparing innocent civilians from hostile action; resolving crisis within a multilateral framework; and repressing crimes by allowing terrorists access to ordinary courts of the land.

Military commissions were always outside the legal ambit of international law and IHL. In its June 29 judgment, the US Supreme Court as the guardian of the legality of the country has reiterated just that.