In the debate concerning the rights of the prisoners held in Guantanamo Bay (Camp Delta), there are two simultaneous ongoing debates. One is the legal debate concerning the obligations of the U.S Government in their detention and treatment of these prisoners; which is entwined with their status. Should they be treated as POWs, Criminals or Terrorists? Secondly, what rights are available under International Law to decide the prisoners’ fate? The problematic debate is how to interpret the rights of these individuals. Criminals have some specific rights, while POWs have others. Terrorists may have different rights, but as humans they are still protected under International Legislation.
To determine whether an individuals rights are being, have been, or are in danger of being violated several steps have to be taken. Firstly, we have to determine what his status is before the law, and then assess what legal framework best encompasses his situation. It is only then we can measure the treatment given, with the rights he holds.
Who are to benefit from the Conventions1? Rosas tries to answer this question by the way of setting up the following dichotomies:
1. Armed Conflict or Peace Relations.
2. International Armed Conflict or Non-International Armed Conflict.
3. Prisoners of War, Unlawful Combatants or Peaceful Civilians.
In relation to the prisoners held at Camp Delta, the first two conditions are straightforward if we say; they were captured during an armed conflict that was of an International character. The third point is most problematic, which is more central to the debate on the status of the prisoners held at Guantanamo Bay. It is a question of whether they are lawful or unlawful combatants.
This can be determined by sub-paragraphs 1, 2 ; 3 of Article 4 in the Third Geneva Convention, which states:
POW, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. Members of the armed forces of a party to the conflict, as well as members of militias or volunteer corps forming part of such forces.
2. Members of other militias and members of other volunteer corps, including these of organised resistance movements, belonging to a party to the conflict and operating in or outside their own territory… have to fulfil the following conditions:
a) Being commanded by a person responsible for his subordinates.
b) Wearing a fixed distinctive sign recognisable at a distance.
c) Carrying Arms openly.
d) Conducting operations in accordance with the laws and customs of war.
The Taliban armed forces do qualify as POWs, within the terms of Article 4 in the Third Geneva Convention, because they are ‘members of the armed forces of a Party to the conflict’. Despite the US acknowledgment that the Taliban were a party to the conflict, POW status was denied to those captured because of their failure to meet so-called ‘combatants requirements’ (4 requirement stated above). These requirements are only for ‘irregular’ fighters, and not for members of the armed forces party to the conflict, who are presumed to meet these conditions.
In relation to point (a), Mullah Omar was the leader of the Taliban armed forces. The black turban worn by the Taliban may be regarded as a distinctive criterion for combatant status. The US Army Manual Para. 64 (b) states, ‘less than the complete uniform will suffice. A helmet or headdress which would make the silhouette of the individual readily distinguishable from that of an ordinary civilian would satisfy this requirement’. Loyal fighters to the Taliban regime found to contravene the laws of war and commit acts of destruction in civilian clothes would not lose POW status, but will be liable to prosecution for crimes of war.
The Secretary of Defence, Donald Rumsfield stated ‘the Taliban did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to Al-Qaeda…they would not rise to the standard of a POW’2. It is problematic when deciding whether the Taliban failed to carry arms openly, lack a chain of command, or violated the law of war.
Article 5 of the Third Geneva Convention states: “should any doubt arise as to whether persons, having committed a belligerent act and fallen in the hands of the enemy, belonging to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present convention, until such a time, their status has been determined by a competent tribunal3. Article 7 establishes an absolute prohibition against renunciation of rights on part of POWs. Only a judicial finding approved by a competent court could deprive the captured Taliban of POW status.
There is a presumption in the Conventions that a captured combatant holds the status of POW unless a competent tribunal reaches a different conclusion. The US Government, who decided to determine the status of the prisoners, without any case being heard in front of an Independent Tribunal, dismissed this presumption. The US Administration have refused to set up special Tribunals to determine on an individual basis the status of each prisoner, therefore have departed from provisions in the Geneva Convention, but also from longstanding practices.
Donald Rumsfeld stated that the prisoners “will be handled not as POW, because they are not, but as unlawful combatants’4. By classifying them as unlawful combatants, only military commissions could prosecute them and the burden of proof to secure a conviction was lower than regular criminal courts.
Every person held in custody during an International Armed conflict, including the prisoner the US labelled ‘Unlawful Combatants’; receive some form of protection under the Geneva Conventions5. Detainees that are not guaranteed POW status will be considered to be under the protection either under the Forth Geneva Convention, regarding the rights and protection of civilians and unlawful combatants, or also under International Human Rights Regulations. Amnesty International believes that those captured in Afghanistan and held by the US must be presumed to be POW, and dispute about their status must be determined by a competent court6. The US claims that it is fully supportive of the Geneva Conventions, but has refused to grant POW status or submit the question to a competent tribunal to resolve doubts about their status. In Beharry v Reno7 a Senior District Judge stated, “The US cannot expect to reap the benefits if internationally recognised Human Rights in the form of greater worldwide stability and respect for people, without being willing to adhere to them itself”.
1 Rosas A. The Legal Status of Prisoners of War; A Study in International Humanitarian Law Applicable in Armed Conflict (1976) Helsinki: Suomalainen Tiedeakatemia p.219
2 News transcript, ‘Secretary Rumsfield Media Availability en Route to Camp X-Ray’. 27th January 2002 www.defenselink.mil/news/Jan2002/t01282002_t0127sd2.html
3 Rosas A. The Legal Status of Prisoners of War; A Study in International Humanitarian Law Applicable in Armed Conflict (1976) Helsinki: Suomalainen Tiedeakatemia p.299
4 Scraton P. Beyond September 11. An Anthology of Dissent (2002) London: Pluto Press
5 Background Paper on Geneva Conventions & Persons Held by US Forces, Human Rights Watch. Press Backgrounder January 29th 2002, http://hrw.org/backgrounder/usa/pow-bck.htm
6 Khan I. (2002). Beyond the Law. Update to Amnesty International’s April Memorandum to the US Government on the Rights of Detainees held in US custody in Guantanamo Bay. Amnesty International, London.
7 US District Court 22 January 2002.