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The White House
Position
In November of 2001, President Bush issued an
executive order authorizing the military detention and trial of
terrorist suspects who were not US nationals. The order specified
anyone deemed (by the President) to be a terrorist suspect or aiding
terrorists could be detained, tried by a military tribunal,
convicted and even executed without a public trial, without
presumption of innocence, without access to adequate counsel and
without the right to appeal. The Secretary of Defense appoints the
members of the Tribunal, and appellate review by an independent and
impartial non-military court is impossible. On February 7th,
2002 the White House released a statement outlining the United
States Policy and the Status of the Detainees at Guantanamo:
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The
United States is treating and will continue to treat all of the
individuals detained at Guantanamo humanely and, to the extent
appropriate and consistent with military necessity, in a manner
consistent with the principles of the Third Geneva Convention of
1949.
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The
President has determined that the Geneva Convention applies to the
Taliban detainees, but not to the al-Qaida detainees.
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Al-Qaida
is not a state party to the Geneva Convention; it is a foreign
terrorist group. As such, its members are not entitled to POW
status.
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Although we never recognized the Taliban as the legitimate Afghan
government, Afghanistan is a party to the Convention, and the
President has determined that the Taliban are covered by the
Convention. Under the terms of the Geneva Convention, however,
the Taliban detainees do not qualify as POWs.
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Therefore, neither the Taliban nor al-Qaida detainees are entitled
to POW status.
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Even
though the detainees are not entitled to POW privileges, they will
be provided many POW privileges as a matter of policy.
The key fact that the US is a party to the
Conventions is of greater importance here than whether the
detainees� countries of origin are. The Bush administration is
denying them official POW status, yet classifying them as �unlawful
enemy combatants� and interpreting Article 118 of The Third Geneva
Convention (GCIII) to allow them to keep the combatants detained
until the �cessation of active hostilities,� understood as the end
of their �war on terrorism.� As a result, the detainees have been
held for almost two years without charge, hearing or trial, without
access to lawyers, relatives or the courts.
The "General" Rules
The international Laws of War or international
humanitarian laws, and the international laws of peace or
international human rights laws, are complementary. Together they
constitute an intricate framework designed to safeguard fundamental
rights to life, dignity and health and protect individuals from
arbitrary detention, prosecution and harm.
The Laws of War
International Humanitarian Laws govern two main
areas: the protection of those involved in armed conflict and the
restrictions on the means and methods of warfare. Even before
the oft-cited Geneva Conventions, The Hague Convention IV of 1907
defines broadly who constitutes a �belligerent� and stipulates that
combatants and non-combatants have a right to be treated as
prisoners of war. The four Geneva Conventions of 1949, and the
1st and 2nd Additional Protocols of 1977, are
the cornerstone of international humanitarian law and the ICRC is
regarded as their keeper. One hundred and eighty-nine states are
party to Geneva 1949, which cover the �Wounded and sick� (I),
�Maritime� (II), �Prisoners of war� (POW) (III) and �Civilians� (IV)
respectively. Although the US has not ratified the Additional
Protocols, it has signed on to them, indicating the intention to be
bound by them (article 16 of the 1969 Vienna Convention on the Law
of Treaties). Geneva 1949 applies to �all cases of declared war
or of any other armed conflict� even if the state of war is not
recognized by one of them� (Common Article 2). Undeniably, the
US-led invasion of Afghanistan constituted the beginning of an
�armed conflict� and as such persons, i.e. members of the Taliban,
captured during that conflict should qualify as prisoners of war;
especially since art. 4(1) of GCIII specifically makes provisions
for �militias or volunteer corps.� The administration, however,
is treating them as guerrillas who do not meet the four criteria of
GC III, art. 4(2), qualifying them as POWs. Regardless of such
a dispute, however, art. 5 of GCIII mandates that if there is �any
doubt� as to whether an individual is entitled to the prisoner of
war status, that individual must be treated as such �until such time
as their status has been determined by a competent tribunal.�
GCIV covers civilians and �protected persons�
which it defines as �those who at a given moment and in any manner
whatsoever, find themselves, in case of a conflict or occupation, in
the hands of a Party to the conflict or Occupying Power of which
they are not nationals.� If a person is ineligible for POW or
protected persons status under GCIII and GCIV, AP I casts even a
wider net in determining who should classify for protection: �the
armed forces of a party consist of all armed groups and units under
its command even if that party is represented by an authority not
recognized by an adverse party� (Art 43(1), also reaffirms the need
for a competent tribunal in cases of doubt (Art 45(1).
Common Article 3 defines the obligations, which
must be adhered to in all armed conflict and are generally felt to
be non-derogable: �The following acts are and shall remain
prohibited at any time and in any place whatsoever: violence to life
and person, in particular murder of all kinds, mutilation, cruel
treatment and torture; outrages upon personal dignity, in particular
humiliating and degrading treatment.� A picture showing the
detainees kneeling, blindfolded and shackled, in small chain-link
cages made headlines in the international press and further
underscored the concerns human rights groups have about convention
and treaty violations.
Even if one were to say (and the administration
seems to be alone in this assumption) that the detainees are not
covered under any provisions of humanitarian law, the ethicist
Jerome Amir Singh makes an excellent case for the protection of
enemy combatants under the �Body Principles for the Protection of
All Persons under Any Form of Detention or Imprisonment�, the
�UN Standard Minimum Rules for the Treatment of Prisoners� , as
well as points out that the US is in direct violation of the UN
resolution pertaining to the protection of human rights and
fundamental freedoms while countering terrorism. In this resolution,
adopted December of 2002, all states affirm that �any measure taken
to combat terrorism complies with obligations under international
law, in particular international human rights, refugee and
humanitarian law.�
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