University of Minnesota Human Rights Library

B. CAPTURE OF DETAINEES AFTER SEPTEMBER 11, 2001:

PETITION TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AND PRECUATIONARY REMEDIES

C. INTERNATIONAL HUMAN RIGHTS LAW RELEVANT TO POST- SEPTEMBER 11th DETAINEES

D. MILITARY ORDER OF NOVEMBER 13, 2001, AND SUBSEQUENT ENFORCEMENT OF THIS ORDER

E. UNITED STATES COURT DECISIONS ON THE STATUS OF GUANT�?NAMO DETAINEES

F. NON-GOVERNMENTAL ORGANIZATION REPORTS ON THE HUMAN RIGHTS SITUATION IN GUANT�?NAMO BAY, CUBA

G. BIBLIOGRAPHY ON DETAINEES

In preparation for the class, please consider the following questions in light of the materials provided below and be prepared to refer to specific textual references in support of your responses.

A. QUESTIONS

What do provisions of international human rights and humanitarian law say about the status of the detainees in Guantánamo?

What provisions of the American Declaration on the Rights and Duties of Man are relevant?

What provisions of the American Declaration on Human Rights relevant?

How does Article 14 effect the situation of the Guantánamo detainees?

What provisions of the Geneva Conventions are relevant?

How would the Geneva Conventions be used in the Inter-American Commission?

How does one qualify as a prisoner of war under the Geneva Conventions?

Was the war in Afghanistan an international armed conflict?

What does Article 2 of the Geneva Convention relative to the Treatment of Prisoners of War (Third Geneva Convention) say about that armed conflict?

What does Article 2 say about the war on terrorism more generally?

Could the war in Afghanistan or the war on terrorism qualify as a non-international armed conflict under Common Article 3 to the Geneva Conventions?

Do the Guantánamo detainees qualify as prisoners of war?

What does Article 4 of the Third Geneva Convention require?

Do the Taliban fighters qualify as regular forces?

How would you know?

Did the U.S. have any difficulty identifying what they wanted to lawfully target in Afghanistan?

What is the status of the Al Qaeda forces?

Are they irregular forces?

If they qualify as prisoners of war, what rights do they have?

Does POW status make a difference in regards to:

The crimes a POW can be tried for?

The right of a POW to refuse to answer questions?

Being a member of an army v. a militia?

What are the four requirements to qualify as a militia under the Geneva Convention?

Civilian v. Military who engage in crimes against humanity?

The exchange of prisoners under the Geneva Convention?

The accommodations a POW is required to receive from his or her captor?

Can the United States subject them to trial if they are prisoners of war? Under what circumstances?

If they are not prisoners of war, what is their status?

Do they qualify as civilians?

Can the United States subject them to trial if they are civilians?

Are civilians guaranteed a fair trial in any international armed conflict?

Will the military commissions provide a fair trial under the Geneva Convention, the Civil and Political Covenant, or the American Declaration of Human Rights?

What procedures of the military commission raise fair trial concerns?

Are civilians subject to transfer from Afghanistan to Guantánamo, from Bosnia to Guantánamo, or from elsewhere?

If they are not civilians or POW’s, are they considered an “unprivileged�? or “enemy combatant�??

Does the Geneva Conventions provide for “unprivileged�? or “enemy combatant�? which are deprived of all rights?

Is it consistent with the purposes of the Geneva Conventions

to leave such a wide gap in protection for “unprivileged�? or “enemy combatant�?

Is the Quirin (1942) case determinative of the status of the Taliban and al-Qaeda detainees?

Have there been significant legal developments since 1942 which might undermine the U.S. Supreme Court decision in Quirin?

If there is doubt about their status, what procedure do the Geneva Conventions prescribe for resolving that doubt?

What did the Inter-American Commission decide – at least provisionally – about the application of human rights and humanitarian law?

How effective has the Commission been in achieving its objectives?

How can the Commission make itself more effective? What can the Center for Constitutional Rights do?

The US has a bad record of not complying with decisions of the Inter-American Commission. Why?

What is the legal authority of the American Declaration of the Rights and Duties of Man?

What is the legal authority of the Charter of the Organization of American States?

Do either of these instruments pertain to the detainees that are being held in Guantánamo Bay, Cuba?

Regardless of whether humanitarian law or Inter-American human rights law applies to the detainees in Guantánamo, what provisions of international human rights law might apply?

What provisions of the International Covenant on Civil and Political

Rights determine that treaty’s application to the Guantánamo detainees?

Is Guantánamo within the jurisdiction and territory of Article 2 of the International Covenant on Civil and Political Rights?

What rights of the Guantánamo detainees may have been violated?

What is the legal authority of Articles 9(2) and 14 of the International Covenant on Civil and Political Rights as it pertains to the detainees in Guantánamo.

What procedures might be available to the Guantánamo detainees for vindicating their rights under the Covenant?

Can you think of any other U.N. procedures that might be useful to the Guantánamo detainees for vindicating their rights under the Covenant?

What could the International Criminal Court (ICC) do for the detainees in Guantánamo if the US were a party to this treaty?

Could the ICC be invoked on an ad hoc basis?

Could the ICC handle the situation of enemy combatants better than national courts?

* * * * * * * * * * * *

B. CAPTURE OF DETAINEES AFTER SEPTEMBER 11, 2001: PETITION TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS AND PRECUATIONARY REMEDIES

CENTER FOR CONSTITUTIONAL RIGHTS, REQUEST FOR PRECAUTIONARY MEASURES, INTER-AMERICAN COMMISSION ON HUMAN RIGHTS (February 25, 2001) (some footnotes omitted):

I. INTRODUCTION

Petitioners seek the urgent intervention of this Commission in order to prevent continued unlawful acts that threaten the rights of individuals detained by the United States government at its military base at Guantánamo Bay, Cuba. Although, the United States has an obligation and right to arrest and try the perpetrators of the horrendous crimes of September 11, it must do so in compliance with fundamental principles of national, human rights and humanitarian law. It has not done so. The United States’ failure to abide by these fundamental principles is setting a precedent for the actions of other states, states that will see U.S. actions as supporting their own violations of international law and human dignity.

Petitioners, therefore, are requesting Precautionary Measures to protect the detainees’ rights to be treated as prisoners-of-war (pows), to be free from arbitrary, incommunicado, and prolonged detention, unlawful interrogations, and trials by military commission in which they could be sentenced to death. These rights are protected pursuant to Articles I, XVII, XVIII, XXV, XXVI of the American Declaration on the Rights and Duties of Man (ADRDM), which imposes binding international obligations on the United States.

II. STATEMENT OF FACTS

In the wake of the terrorist attacks of September 11, 2001, the United States of America planned and carried out a massive military campaign against the Taliban regime then in power in Afghanistan and an organization called al Qaida. The U.S. Congress authorized this military action by granting the President authority to “use all necessary and appropriate force against those nations, organization, or persons he determined�? were either involved in the September 11 attacks, aided in their commission, or harbored others who were involved in the attacks.

During the course of the campaign, President Bush, Secretary of Defense Rumsfeld, and other members of the United States military acting at their direction repeatedly described the campaign as a “war.�? On September 12, 2001, President Bush described the attacks on the World Trade Center as acts of war. On September 20, 2001, President Bush announced the start of the “war on terror�? and on September 25, 2001, he stated that “[w]e’re in a war we’re going to win.�?

On October 7, 2001, the President announced that the U.S. military had begun air strikes against al Qaida camps and Taliban installations. U.S ground troops first arrived in Afghanistan on October 20, 2001 and immediately engaged Taliban forces in battle. Following the capture of Kabul and other major cities in November, military operations focused on eliminating bastions of resistance in Kandahar and the Tora Bora caves in early December.

On November 13, 2001, President Bush issued a Military Order authorizing the Secretary of Defense to detain anyone whom the President determined in writing:

i. is or was a member of the organization known as al Qaida, or

ii. has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation therefore, that have caused, threaten to cause, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

iii. has knowingly harbored any such person.^{[
[1] ]}

The Military Order also provides that “if the individual is to be tried,�? such trials will be held before military commissions operating in accordance with the basic rules set forth in the Order, which allows the non-unanimous imposition of death sentences. There is no requirement that a detained individual be brought to trial. The Military Order also states that persons detained or tried under its provisions “shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.�?

On November 16, the Special Rapporteur on the Independence of Judges and Lawyers of the United Nations Commission on Human Rights sent an urgent appeal to the United States government regarding the Military Order signed by President George W. Bush. In his appeal, the Special Rapporteur expressed concern about, among other things, the setting up of military tribunals to try those subject to the Order; the absence of a guarantee of the right to legal representation and advice while in detention; the establishment of an executive review process to replace the right to appeal the conviction and sentence to a higher tribunal; and the exclusion of jurisdiction of any other courts and international tribunals.

Subsequent to the issuance of the Military Order, thousands of prisoners were captured by U.S. and Northern Alliance forces in Afghanistan. On or about January 11, 2002, the United States military began transporting prisoners captured in Afghanistan to Camp X-Ray at the U.S. Naval Station in Guantánamo Bay, Cuba. It was reported that the transferred prisoners could face trials by military commission under the Military Order and possibly the death penalty. There have been allegations of ill‑treatment of the prisoners in transit and at Guantánamo, including reports that they were shackled, hooded and sedated during the 25-hour flight from Afghanistan, their beards and heads forcibly shaved, and that upon arrival at Guantánamo they are housed in small cells that fail to protect against the elements.^[ [2] ^]

As more shipments of prisoners began arriving at Guantánamo, international bodies such as the European Union, the International Committee of the Red Cross and a number of foreign governments expressed grave concerns over the treatment of the detainees, their confinement conditions and the refusal of the United States to afford them status under the Geneva Conventions.

On January 16, 2002, the United Nations High Commissioner for Human Rights issued a statement regarding the Guantánamo detentions, noting that:

“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.

The legal status of the detainees, and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention.

All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.

Any possible trials should be guided by the principles of fair trial, including the presumption of innocence, provided for in the ICCPR and the Third Geneva Convention.�?^[ [3] ^]

It is the official position of the United States government that none of the detainees are pows. Instead, officials have repeatedly described the prisoners as “unlawful combatants�? who are not subject to the Geneva Conventions.^[ [4] ^] In its most recent statement on the status of those detained at Guantánamo, the government announced that although it would apply the Geneva Conventions to the Taliban prisoners, it would not extend them to members of al Qaida. In addition, the Government stated that the Taliban prisoners did not meet the criteria for pows set forth in the Conventions and that they were therefore not entitled to the protections of the Conventions. This determination was made without the convening of a competent tribunal required by Article 5 of the Third Geneva Convention.

Although the International Committee of the Red Cross (ICRC) rarely acknowledges publicly differences with governments, it did so with regard to the United States refusal to treat the Taliban and al Quida detainees as pows. On February 8, the day after announcement of the United States’ position, Darcy Christen, a spokesperson for the ICRC, said of the detainees: “They were captured in combat [and] we consider them prisoners of war.�? The ICRC emphasized that it was up to a court to decide if a detainee was not a pow:

You cannot simply…decide what applies to one person and what applies to another. This has to go to a court because it is a legal decision not a political one.

In its Press Release of February 9, the ICRC again stated that captured “members of armed forces and militias associated to them�? are protected by Geneva III and that there “are divergent views between the United States and the ICRC�? as to the procedures “on how to determine that the persons detained are not entitled to prisoner of war status.�?

United States’ authorities are now detaining 254 male prisoners representing 25 nationalities at the Guantánamo compound. Although the authorities have refused to divulge the identities or nationalities of the detainees, media reports indicate that they include nationals of the United Kingdom, Australia, France, Belgium, Sweden, Algeria, Yemen, Afghanistan, Saudi Arabia, Kuwait and Pakistan. The only reported consular visits to Guantánamo have been carried out by British governmental officials.

Interrogation of the Guantánamo prisoners began on January 23; none of the detainees were allowed to have lawyers present during questioning by officers from several United States’ civilian and military agencies. The U.S. military has reportedly built several windowless plywood structures on the outskirts of the detention center for the purpose of obtaining information from the 254 detainees held there.

The ranks of the prisoners already held incommunicado at Guantánamo are expected to increase in the near future now that more open-air cells have been constructed. There are no indications that the detainees have been informed of their rights under the Geneva Conventions, the ICCPR, the ADRDM, the Vienna Convention on Consular Relations, or any other international instrument which safeguards the fundamental human rights of detainees.^{[ [5] ]} As a result, prisoners at Camp X-Ray are completely unable either to protect or to vindicate violations of their fundamental rights under domestic and international law.

In published statements, both the Secretary of Defense and other officials recently indicated the United States may hold the detainees under these conditions indefinitely.

III. REQUEST FOR PRECAUTIONARY MEASURES

Petitioners seek the urgent intervention of this Commission, in order to prevent continued unlawful acts by the United States that threaten the Guantánamo detainees’ rights under the ADRDM. Under Article 25 of its regulations, the Commission may intercede in “serious and urgent cases, and whenever necessary according to the information available . . . to prevent irreparable harm to persons.�? This is such an urgent case.

A. The Geneva Convention Violations

The United States has repeatedly refused the entreaties of the international community to treat the detainees under the procedures established under the Geneva Conventions. Geneva III applies to the treatment and legal status of pows. The convention requires that persons captured during an international armed conflict are presumed to be pows until a competent tribunal determines otherwise.^[ [6] ^] Instead of following these procedures, which require individual determinations as to whether or not a combatant is a pow, the United States has simply decided en masse that none of the Taliban or al Qaeda detainees is a pow. This non-individualized determination made by United States officials is contrary to the procedures established by the clear commands of Geneva III.

As a result none of the detainees are receiving the protections afforded prisoners of war – protections to which they are entitled-- until the United States convenes a competent tribunal to determine their status.^{[ [7] ]} These include a prisoner’s right under Articles 70 and 71 of Geneva III to write directly to his family “informing his relatives of his capture, address and state of health�? and to send and receive correspondence. Pows are also entitled to treatment and housing similar to that of U.S. soldiers, issuance of identity cards, protection from interrogation camps (which is what Guantánamo appears to be) and the use of coercion during interrogation. A pow also has the right to engage in hostilities without criminal penalty and valuable procedural protections in any prosecution for war crimes-- protections equivalent to those given to a U.S. soldier during a court-martial. As military commisions cannot try U.S. soldiers, neither can they try the detainees at Guantánamo.

B. Human Rights Violations Relating To the Arbitrary, Incommunicado, and Prolonged Detention of the Guantánamo Prisoners

As described above, the United States’ treatment of the Guantánamo detainees violates norms of international humanitarian law relating to the treatment of individuals detained during times of international armed conflict. United States’ actions violate international human rights norms as well. As this Commission has observed, the application of international humanitarian law does not “exclude or displace�? the application of international human rights law, since both share a “common nucleus of non-derogable rights and a common purpose of protecting human life and dignity.�?^[ [8] ^]

The United States’ detention of the Guantánamo prisoners is arbitrary. The prohibition against arbitrary detention is a norm of customary international law, and has the status of jus cogens. In determining what constitutes an “arbitrary�? detention, this Commission should consider several factors, beginning with the text of Article XXV, which provides:

1. No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law;

2. Each individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court; and

3. All detainees have the right to be tried without undue delay or released.

The provisions of Article XXV indicate the minimal procedural guarantees that must be followed. They are not, however, the exclusive source of international norms relating to this inquiry. In evaluating whether the incommunicado and prolonged detention of the Guantánamo prisoners violates international law, this Commission should also consider whether the United States has observed other norms of international law relating to pre-trial detention. For example, international law requires that a detained person be permitted to communicate with family, consult counsel, and meet with consular representatives. The provisions of article 9 of the ICCPR, which require that all detainees be brought promptly before a judge or other officer authorized by law, and that they be allowed access to a court that will decide without delay on the lawfulness of their detentions, must also be considered. An individual’s detention is arbitrary if she or he is denied these procedural guarantees.

The United States’ treatment of the Guantánamo detainees violates virtually every human rights norm relating to preventive detention. As described in the statement of facts above the United States has denied the detainees access to counsel, consular representatives, and family members, has failed to notify them of the charges they are facing, has refused to allow for judicial review of the detentions, and has expressed its intent to hold the detainees indefinitely.

Meanwhile, the United States has continued to interrogate the prisoners.

C. Violations Relating to Trial Before Military Commissions

The United States intends to subject certain detainees to trial before military commissions, in which they could face the death penalty. The commissions could begin processing cases at any time. Meanwhile, the detainees have been given no facilities to begin preparing their defense, and no court has reviewed the validity of their prolonged detention.

As noted above, the United States has cited the Military Order as justification for the detentions of the Guantánamo prisoners. This same Order authorizes the trial by military commission for certain detainees. The military commissions authorized by the Order violate several established principles of international law, including Articles I, XVII, XVIII, XXV, and XXVI of the ADRDM.

First, the military commissions fail to provide minimal guarantees of due process. Instead, the commissions are designed to ensure swift convictions and possible death sentences based on secret evidence. Only the executive branch of the United States’ government would review the convictions and death sentences, with no right to judicial review, and no right to appeal. In short, trials before the military commissions would be skewed in favor of the government, would fail to provide adequate due process protections, and would violate established canons of due process.

Second, the military commissions do not constitute “courts previously established in accordance with pre-existing laws�? as required pursuant to Article XXVI of the ADRDM.

Finally, as this Commission is well aware, the United States has reserved the right to execute those convicted by the military commissions. There can be no question that capital proceedings by military commission would violate the most fundamental human rights of the detainees, including the right to life. Because of these myriad defects, petitioners are requesting that the Commission issue Precautionary Measures, directing the United States to refrain from subjecting any detainee to trial by military commission.

Based on these facts, petitioners have amply demonstrated the detainees will suffer irreparable harm, if this Commission fails to issue Precautionary Measures.

IV. PRECAUTIONARY MEASURES ARE NECESSARY TO AVERT “IRREPARABLE HARM�?

Although Precautionary Measures are warranted when an individual’s liberty or her or his life is at risk, this Commission has also found Precautionary Measures justified where the rights at stake involve the protection of an individual’s property.^[ [9] ^]

In determining the meaning of “irreparable harm,�? this Commission should take into consideration not only its previous decisions on Precautionary Measures but also the jurisprudence of the Inter-American Court on Human Rights on the grant of Provisional Measures.^[ [10] ^] This is especially so given that the Court’s authority to issue the latter derives from Article 63(2) of the American Convention on Human Rights, which contains language virtually identical to that of Article 25 of this Commission’s Rules of Procedure.^[ [11] ^]

Precautionary Measures are warranted whenever a petitioner faces a serious threat to his or her physical, psychological or moral integrity.^{[ [12] ]} In the Loayza Tamayo case, the Court issued Provisional Measures to end solitary confinement and incommunicado detention imposed on a person who had been committed for the crime of terrorism against Peru.

Although “irreparable harm�? may be shown by demonstrating the existence of a serious risk to life or personal integrity,^{[ [13] ]} neither the wording nor the spirit of Article 25 of the Commission’s Rules of Procedure require such a showing.^{[ [14] ]} To the contrary, the Court has held that an imminent risk to freedom of expression and democratic values can constitute “irreparable harm.�?[ [15] ]

Restrictions on access to counsel and other impingements on due process rights can also constitute “irreparable harm.�? Thus, in Manriquez v. Mexico,^[ [16] ^] when the Mexican authorities denied a prisoner’s attorney access to her client because she refused to subject herself to a strip search, the Commission asked Mexico to adopt Precautionary Measures to allow the full exercise of the prisoner’s due process rights and judicial guarantees, including allowing his attorney to visit him to prepare his defense, to ensure confidentiality in attorney-client conversations and to afford his attorney dignified and non-discriminatory treatment.

In addition to their essentially preventive nature, the purpose of Provisional Measures is to provide effective protection for fundamental rights, inasmuch as they seek to avoid irreparable damage to persons. Thus, in the Ivcher Bronstein case,^[ [17] ^] the Court ordered Provisional Measures to protect the petitioners’ physical, psychological and moral integrity, and preserve their right to due process. In that case, the Peruvian government stripped one of the petitioners of his naturalized Peruvian citizenship and divested him of his ownership of a television station ostensibly because that station had broadcast programs critical of influential government officials. The Court concluded that the damage one of the petitioners had sustained, in part due to the failure to accord due process, was of enormous magnitude, would be very difficult to redress in full and was being aggravated on a daily basis.^[ [18] ^]

When seeking Precautionary Measures, there is usually a need to identify individually the people who are in danger of suffering irreparable harm.^[ [19] ^] This does not always have to be the case, however. In the Peace Community of San José de Apartadó case, the Court did not require that each individual be identified since they formed part of an organized community, located in a determined geographic place, whose members could be identified and individualized and who, due to their membership in the community, faced a similar risk of suffering acts of aggression against their personal integrity and lives. Thus, the community could be dealt with collectively. In the present case, the Guantánamo detainees are located in a determined geographic place and, by virtue of their detention their identities are known to the United States. In addition, they are all in a situation of similar risk of continuing injury to their fundamental rights. Precautionary Measures may therefore be issued for them as a group. This is especially important given the continuing refusal of the United States to release the names and nationalities of the detainees.

The Guantánamo detainees will suffer irreparable harm if the Precautionary Measures requested are not ordered. The requested Measures are directed and narrowly tailored toward the avoidance of that harm. Among other things, the United States is failing to provide access to any judicial procedures to determine the legality of their continued detention and is taking advantage of the detainees’ isolation from legal counsel, family, and consular representatives to subject them to prolonged interrogations.

The facts set forth in this Request for Precautionary Measures establish prima facie violations of Articles I, XVII, XVIII, XXV and XXVI of the ADRDM and the risk of irreparable harm.

V. THE COMMISION SHOULD TAKE PRECAUTIONARY MEASURES TO ASSIST THE GUANT�?NAMO DETAINEES

The petitioners respectfully seek the Commission’s intervention and the issuance of the following Precautionary Measures, requesting that the United States government:

1. Adopt those measures necessary to protect the right to personal integrity and fair trial of the detainees at Guantánamo.

2. Treat each detainee as a pow until any doubt regarding such status is determined by a competent tribunal pursuant to Article 5 of Geneva III, as mandated by pre-existing law, including international humanitarian law.

3. Afford each detainee the right and liberties guaranteed by the ADRDM as mandated by pre-existing law, including international humanitarian law. These guarantees should include the following:

a. Notification in writing of the charges faced by each detainee;

b. Access to legal counsel, and confidentiality of attorney-client communications;

c. Access to judicial review of those determinations affecting their rights and status.

4. Identify the detainees by name, nationality, and address, where known.

5. Notify all detainees of their rights under Article 36 of the Vienna Convention on Consular Relations, and grant them access to consular representatives.

6. Suspend the interrogation of the detainees until the rights of the detainees are fully guaranteed.

7. Stay any proceeding before military commissions, pending resolution of the prisoners’ status and until such commissions comply with pre-existing law and due process.

8. Permit the Commission to conduct an on-site investigation, through a Special Commission named under Articles 40 and 51-55 of its Regulations.

9. Petitioners further urge this Commission to find that any order of Precautionary Measures is binding on the United States. See: LaGrand Case (Germany v. United States), 2001 ICJ 104, (Judgment) paras. 109, 128(5). . . .

* * * * * * * * *

INTER-AMERICAN COMMISSION ON HUMAN RIGHTS

COMISIÓN INTERAMERICANA DE DERECHOS HUMANOS

COMISSÃO INTERAMERICANA DE DIREITOS HUMANOS

COMMISSION INTERAMÉRICAINE DES DROITS DE L'HOMME

March 13, 2002

Ref. Detainees in Guantánamo Bay, Cuba

Request for Precautionary Measures

Dear Sirs and Madams:

On behalf of the Inter-American Commission on Human Rights, I wish to acknowledge receipt of your request for precautionary measures dated February 25, 2002 regarding the matter cited above, together with your supplementary observations of March 5, 2002 concerning same.

I also wish to inform you that after carefully deliberating upon your request, the Commission, in a note dated March 12, 2002, addressed the Government of the United States in the following terms:

After careful deliberation on this request, the Commission decided during its 114^th regular period of sessions^{[ [20] ]}to adopt precautionary measures, according to which we ask Your Excellency’s government to take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal. Given the significance and implications of this request to and for the United States and the detainees concerned, the Commission wishes to articulate the basis upon which it reached this decision. . . .

The Commission notes preliminarily that its authority to receive and grant requests for precautionary measures under Article 25(1) of its Rules of Procedure^{[ [21] ]} is, as with the practice of other international decisional bodies,^{[ [22] ]} a well-established and necessary component of the Commission’s processes.^{[ [23] ]} Indeed, where such measures are considered essential to preserving the Commission’s very mandate under the OAS Charter, the Commission has ruled that OAS member states are subject to an international legal obligation to comply with a request for such measures.^{[ [24] ]}

The mandate given to the Commission by OAS member states, including the United States, under Article 106 of the Charter of the Organization of American States and Articles 18, 19 and 20 of the Commission’s Statute is in turn central to the Commission’s consideration of the matter presently before it. Through the foregoing provisions, OAS member states have charged the Commission with supervising member states’ observance of human rights in the Hemisphere. These rights include those prescribed under the American Declaration of the Rights and Duties of Man, which constitutes a source of legal obligation for all OAS member states^{[ [25] ]}in respect of persons subject to their authority and control.^{[ [26] ]} The Commission has been directed to pay particular attention to the observance of Articles I (right to life), II (right to equality before law), III (right to religious freedom and worship), IV (right to freedom of investigation, opinion, expression and dissemination), XVIII (right to a fair trial), XXV (right to protection from arbitrary arrest), and XXVI (right to due process of law) of the American Declaration.

In addition, while its specific mandate is to secure the observance of international human rights protections in the Hemisphere, this Commission has in the past looked to and applied definitional standards and relevant rules of international humanitarian law in interpreting the American Declaration and other Inter-American human rights instruments in situations of armed conflict.^{[ [27] ]}

In taking this approach, the Commission has drawn upon certain basic principles that inform the interrelationship between international human rights and humanitarian law. It is well-recognized that international human rights law applies at all times, in peacetime and in situations of armed conflict.^{[ [28] ]} In contrast, international humanitarian law generally does not apply in peacetime and its principal purpose is to place restraints on the conduct of warfare in order to limit or contain the damaging effects of hostilities and to protect the victims of armed conflict, including civilians and combatants who have laid down their arms or have been placed hors de combat.^{[ [29] ]}Further, in situations of armed conflict, the protections under international human rights and humanitarian law may complement and reinforce one another, sharing as they do a common nucleus of non-derogable rights and a common purpose of promoting human life and dignity.^{[ [30] ]} In certain circumstances, however, the test for evaluating the observance of a particular right, such as the right to liberty, in a situation of armed conflict may be distinct from that applicable in time of peace. In such situations, international law, including the jurisprudence of this Commission, dictates that it may be necessary to deduce the applicable standard by reference to international humanitarian law as the applicable lex specialis.^{[ [31] ]}

Accordingly, where persons find themselves within the authority and control of a state and where a circumstance of armed conflict may be involved, their fundamental rights may be determined in part by reference to international humanitarian law as well as international human rights law. Where it may be considered that the protections of international humanitarian law do not apply, however, such persons remain the beneficiaries at least of the non-derogable protections under international human rights law. In short, no person under the authority and control of a state, regardless of his or her circumstances, is devoid of legal protection for his or her fundamental and non-derogable human rights.

This basic precept is reflected in the Martens clause common to numerous long-standing humanitarian law treaties, including the Hague Conventions of 1899 and 1907 respecting the laws and customs of war on land, according to which human persons who do not fall within the protection of those treaties or other international agreements remain under the protection of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience. And according to international norms applicable in peacetime and wartime, such as those reflected in Article 5 of the Third Geneva Convention and Article XVIII of the American Declaration of the Rights and Duties of Man, a competent court or tribunal, as opposed to a political authority, must be charged with ensuring respect for the legal status and rights of persons falling under the authority and control of a state.

Specifically with regard to the request for precautionary measures presently before it, the Commission observes that certain pertinent facts concerning the detainees at Guantánamo Bay are well-known and do not appear to be the subject of controversy. These include the fact that the government of the United States considers itself to be at war with an international network of terrorists,^{[ [32] ]}that the United States undertook a military operation in Afghanistan beginning in October 2001 in defending this war,^{[ [33] ]}and that most of the detainees in Guantánamo Bay were apprehended in connection with this military operation and remain wholly within the authority and control of the United States government.^{[ [34] ]}

It is also well-known that doubts exists as to the legal status of the detainees. This includes the question of whether and to what extent the Third Geneva Convention and/or other provisions of international humanitarian law apply to some or all of the detainees and what implications this may have for their international human rights protections. According to official statements from the United States government, its Executive Branch has most recently declined to extend prisoner of war status under the Third Geneva Convention to the detainees, without submitting the issue for determination by a competent tribunal or otherwise ascertaining the rights and protections to which the detainees are entitled under US domestic or international law.^{[ [35] ]}To the contrary, the information available suggests that the detainees remain entirely at the unfettered discretion of the United States government. Absent clarification of the legal status of the detainees, the Commission considers that the rights and protections to which they may be entitled under international or domestic law cannot be said to be the subject of effective legal protection by the State.

In light of the foregoing considerations, and without prejudging the possible application of international humanitarian law to the detainees at Guantánamo Bay, the Commission considers that precautionary measures are both appropriate and necessary in the present circumstances, in order to ensure that the legal status of each of the detainees is clarified and that they are afforded the legal protections commensurate with the status that they are found to possess, which may in no case fall below the minimum standards of non-derogable rights. On this basis, the Commission hereby requests that the United States take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal.

In its communication to the United States, the Commission also requested that the State provide the Commission with information concerning compliance with these measures within 30 days of receipt of the communication, and thereafter on a periodic basis. In view of the observations of the parties on compliance, the Commission will decide whether to extend or lift the measures.

The Commission wishes to note in accordance with Article 25(4) of the Commission’s Rules of Procedure that the granting of these measures and their adoption by the State shall not constitute a prejudgment on the merits of a case.

Sincerely yours,

Juan E. Méndez

President . . .

* * * * * * * * * *

Rupert Ticehurst, The Martens Clause and the Laws of Armed Conflict, 317 Int’l Rev. Red Cross 125-34 (1997) (footnotes omitted):

The Martens Clause has formed a part of the laws of armed conflict since its first appearance in the preamble to the 1899 Hague Convention (II) with respect to the laws and customs of war on land:

"Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience."

The Clause was based upon and took its name from a declaration read by Professor von Martens, the Russian delegate at the Hague Peace Conferences 1899. Martens introduced the declaration after delegates at the Peace Conference failed to agree on the issue of the status of civilians who took up arms against an occupying force. Large military powers argued that they should be treated as francs-tireurs and subject to execution, while smaller states contended that they should be treated as lawful combatants. Although the clause was originally formulated to resolve this particular dispute, it has subsequently reappeared in various but similar versions in later treaties regulating armed conflicts.

The problem faced by humanitarian lawyers is that there is no accepted interpretation of the Martens Clause. It is therefore subject to a variety of interpretations, both narrow and expansive. At its most restricted, the Clause serves as a reminder that customary international law continues to apply after the adoption of a treaty norm. A wider interpretation is that, as few international treaties relating to the laws of armed conflict are ever complete, the Clause provides that something which is not explicitly prohibited by a treaty is not ipso facto permitted. The widest interpretation is that conduct in armed conflicts is not only judged according to treaties and custom but also to the principles of international law referred to by the Clause. . . .

* * * * * * * * * *

C. INTERNATIONAL HUMAN RIGHTS LAW RELEVANT TO POST-SEPTEMBER 11^th DETAINEES

AMERICAN DECLARATION OF THE RIGHTS AND DUTIES OF MAN , O.A.S. res. XXX, adopted by the Ninth International Conference of American States, Bogota (1948): Novena Conferencia Internacional Americana, 6 Actas y Documentos 297-302 (1953):

ARTICLE I. Every human being has the right to life, liberty and the security of his person.

ARTICLE II. All persons are equal before the law and have the rights and duties established in this declaration, without distinction as to race, sex, language, creed or any other factor.

ARTICLE III. Every person has the right freely to profess a religious faith, and to manifest and practice it both in public and in private. . . .

ARTICLE XVIII. Every person may resort to the courts to ensure respect for his legal rights. There should likewise be available to him a simple, brief procedure whereby the courts will protect him from acts of authority that, to his prejudice, violate any fundamental constitutional rights. . . .

ARTICLE XXV. No person may be deprived of his liberty except in the cases and according to the procedures established by preexisting law. No person may be deprived of liberty for nonfulfillment of obligations of a purely civil character. Every individual who has been deprived of his liberty has the right to have the legality of his detention ascertained without delay by a court, and the right to be tried without undue delay, or, otherwise, to be released. He also has the right to humane treatment during the time he is in custody. . . .

ARTICLE XXVI. Every accused person is presumed to be innocent until proved guilty.

Every person accused of an offense has the right to be given an impartial and public hearing, and to be tried by courts previously established in accordance with preexisting laws, and not to receive cruel, infamous or unusual punishment. . . .

ARTICLE XXVIII. The rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy. . . .

* * * * * * * * *

American Convention on Human Rights, O.A.S.Treaty Series No. 36, 1144 U.N.T.S. 123 entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992)

CHAPTER II - CIVIL AND POLITICAL RIGHTS

Article 3. Right to Juridical Personality

Every person has the right to recognition as a person before the law.

Article 4. Right to Life

1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life.

2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. . . .

4. In no case shall capital punishment be inflicted for political offenses or related common crimes. . . .

6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority. . . .

Article 5. Right to Humane Treatment

1. Every person has the right to have his physical, mental, and moral integrity respected.

2. No one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment. All persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person.

3. Punishment shall not be extended to any person other than the criminal. . . .

5. Minors while subject to criminal proceedings shall be separated from adults and brought before specialized tribunals, as speedily as possible, so that they may be treated in accordance with their status as minors.

6. Punishments consisting of deprivation of liberty shall have as an essential aim the reform and social readaptation of the prisoners. . . .

Article 7. Right to Personal Liberty

1. Every person has the right to personal liberty and security.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies. . . .

Article 8. Right to a Fair Trial

1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.

2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees:

a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court;

b. prior notification in detail to the accused of the charges against him;

c. adequate time and means for the preparation of his defense;

d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel;

e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law;

f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

g. the right not to be compelled to be a witness against himself or to plead guilty; and

h. the right to appeal the judgment to a higher court.

3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind.

4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause.

5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice. . . .

Article 13. Freedom of Thought and Expression

1. Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.

2. The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:

a. respect for the rights or reputations of others; or

b. the protection of national security, public order, or public health or morals. . . .

5. Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law. . . .

Article 25. Right to Judicial Protection

1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

2. The States Parties undertake:

a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;

b. to develop the possibilities of judicial remedy; and

c. to ensure that the competent authorities shall enforce such remedies when granted. . . .

CHAPTER IV - SUSPENSION OF GUARANTEES, INTERPRETATION, AND APPLICATION

Article 27. Suspension of Guarantees

1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.

2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to Juridical Personality), Article 4 (Right to Life), Article 5 (Right to Humane Treatment), Article 6 (Freedom from Slavery), Article 9 (Freedom from Ex Post Facto Laws), Article 12 (Freedom of Conscience and Religion), Article 17 (Rights of the Family), Article 18 (Right to a Name), Article 19 (Rights of the Child), Article 20 (Right to Nationality), and Article 23 (Right to Participate in Government), or of the judicial guarantees essential for the protection of such rights.

3. Any State Party availing itself of the right of suspension shall immediately inform the other States Parties, through the Secretary General of the Organization of American States, of the provisions the application of which it has suspended, the reasons that gave rise to the suspension, and the date set for the termination of such suspension. . . .

PART II - MEANS OF PROTECTION

CHAPTER VI - COMPETENT ORGANS

Article 33

The following organs shall have competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to this Convention:

a. the Inter-American Commission on Human Rights, referred to as "The Commission;" and

b. the Inter-American Court of Human Rights, referred to as "The Court." . . .

* * * * * * * * * * * *

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976: . . .

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status . . .

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

Prisoners of war may not be sentenced by the military authorities and courts of the Detaining Power to any penalties except those provided for in respect of members of the armed forces of the said Power who have committed the same acts.

When fixing the penalty, the courts or authorities of the Detaining Power shall take into consideration, to the widest extent possible, the fact that the accused, not being a national of the Detaining Power, is not bound to it by any duty of allegiance, and that he is in its power as the result of circumstances independent of his own will. The said courts or authorities shall be at liberty to reduce the penalty provided for the violation of which the prisoner of war is accused, and shall therefore not be bound to apply the minimum penalty prescribed.

Collective punishment for individual acts, corporal punishments, imprisonment in premises without daylight and, in general, any form of torture or cruelty, are forbidden. . . .

Article 99

No prisoner of war may be tried or sentenced for an act which is not forbidden by the law of the Detaining Power or by international law, in force at the time the said act was committed.

No moral or physical coercion may be exerted on a prisoner of war in order to induce him to admit himself guilty of the act of which he is accused.

No prisoner of war may be convicted without having had an opportunity to present his defence and the assistance of a qualified advocate or counsel. . . .

* * * * * * * * * *

Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 U.N.T.S. 3, entered into force Dec. 7, 1978.

Article 1. General principles and scope of application

1. The High Contracting Parties undertake to respect and to ensure respect for this Protocol in all circumstances.

2. In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience.

3. This Protocol, which supplements the Geneva Conventions of 12 August 1949 for the protection of war victims, shall apply in the situations referred to in Article 2 common to those Conventions.

4. The situations referred to in the preceding paragraph include armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations. . . .

Article 75. Fundamental guarantees

1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.

2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:

(a) Violence to the life, health, or physical or mental well-being of persons, in particular:

(i) Murder;

(ii) Torture of all kinds, whether physical or mental;

( iii ) Corporal punishment ; and

(iv) Mutilation;

(b) Outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault;

(d) Collective punishments; and

(e) Threats to commit any of the foregoing acts.

3. Any person arrested, detained or interned for actions related to the armed conflict shall be informed promptly, in a language he understands, of the reasons why these measures have been taken. Except in cases of arrest or detention for penal offences, such persons shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.

4. No sentence may be passed and no penalty may be executed on a person found guilty of a penal offence related to the armed conflict except pursuant to a conviction pronounced by an impartial and regularly constituted court respecting the generally recognized principles of regular judicial procedure, which include the following:

(a) The procedure shall provide for an accused to be informed without delay of the particulars of the offence alleged against him and shall afford the accused before and during his trial all necessary rights and means of defence;

(b) No one shall be convicted of an offence except on the basis of individual penal responsibility;

(c) No one shall be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under the national or international law to which he was subject at the time when it was committed; nor shall a heavier penalty be imposed than that which was applicable at the time when the criminal offence was committed; if, after the commission of the offence, provision is made by law for the imposition of a lighter penalty, the offender shall benefit thereby;

(d) Anyone charged with an offence is presumed innocent until proved guilt according to law;

(e) Anyone charged with an offence shall have the right to be tried in his presence;

(f) No one shall be compelled to testify against himself or to confess guilt;

(g) Anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(h) No one shall be prosecuted or punished by the same Party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure;

(i) Anyone prosecuted for an offence shall have the right to have the judgement pronounced publicly; and

(i) A convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised.

5. Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women. Nevertheless, in cases where families are detained or interned, they shall, whenever possible, be held in the same place and accommodated as family units.

6. Persons who are arrested, detained or interned for reasons related to the armed conflict shall enjoy the protection provided by this Article until their final release, repatriation or re-establishment, even after the end of the armed conflict.

7. In order to avoid any doubt concerning the prosecution and trial of persons accused of war crimes or crimes against humanity, the following principles shall apply:

(a) Persons who are accused of such crimes should be submitted for the purpose of prosecution and trial in accordance with the applicable rules of international law; and

(b) Any such persons who do not benefit from more favourable treatment under the Conventions or this Protocol shall be accorded the treatment provided by this Article, whether or not the crimes of which they are accused constitute grave breaches of the Conventions or of this Protocol.

8. No provision of this Article may be construed as limiting or infringing any other more favourable provision granting greater protection, under any applicable rules of international law, to persons covered by paragraph 1.

* * * * * * * * * *

Knut Dörmann, The Legal Situation of “Unlawful/Unprivileged Combatants,�? 85 Int’l Rev. Red Cross 45, 45-52, 58-60, 64-67 (No. 849, March 2003) (excerpts) (footnotes omitted).

Terminology

In international armed conflicts, the term “combatants�? denotes the right to participate directly in hostilities. As the Inter-American Commission has stated, “the combatant’s privilege (…) is in essence a license to kill or wound enemy combatants and destroy other enemy military objectives.�? Consequently (lawful) combatants cannot be prosecuted for lawful acts of war in the course of military operations even if their behaviour would constitute a serious crime in peacetime. They can be prosecuted only for violations of international humanitarian law, in particular for war crimes. Once captured, combatants are entitled to prisoner-of-war status and to benefit from the protection of the Third Geneva Convention [Editors note: herein after GC III] . Combatants are lawful military targets. Generally speaking, members of the armed forces (other than medical personnel and chaplains) are combatants. The conditions for combatant/prisoner-of-war status can be derived from Article 4 of GCIII and from Articles 43 and 44 of PI, which developed the said Article 4.

Generally speaking, a civilian is any person who does not belong to one of the categories of persons referred to in Article 4A(1)(2)(3)and (6) of GC III and Article 43 of PI (see PI, Article 50). Under the law governing the conduct of hostilities, as contained especially in Articles 48 et. seq of PI, and under customary international law, civilians are entitled to general protection against dangers arising from military operations; in particular they may not be made the object of an attack. Except for the relatively rare case of levée en masse, civilians do not have the right to participate directly in hostilities. If they nevertheless take direct part, they remain civilians but become lawful targets of attacks for as long as they do. Their legal situation once they find themselves in enemy hands will be the crux of the following analysis.

Whereas the terms “combatant�?, “prisoner of war�?, and “civilian�? are generally used and defined in the treaties of international humanitarian law, the terms “unlawful combatant�?, “unprivileged combatant/belligerent�? do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals, and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.

For the purposes of this article the term “unlawful/unprivileged combatant/belligerent�? is understood as describing all persons taking a direct part in hostilities without being entitled to do so and who therefore cannot be classified as prisoners of war on falling into the power of the enemy. This seems to be the most commonly shared understanding. It would include for example civilians taking a direct part in the hostilities, as well as members of militias and of other volunteer corps—including those of organized resistance movements—not being integrated in the regular armed forces but belonging to a party to conflict, provided that they do not comply with the conditions of Article 4A (2) of GC III. In the following text, for reasons of convenience, only the term “unlawful combatant�? will be used. . .

The notion “unlawful combatant�? has a place only within the context of the law applicable to international armed conflicts as defined in the 1949 Geneva Convention and Additional Protocol I. The law applicable in non-international armed conflicts does not forsee a combatant’s privilege (i.e. the right to participate in hostilities and impunity for lawful acts of hostility). Once captured or detained, all persons taking no active/direct part in hostilities or who have ceased to take part come under the relevant provisions of international humanitarian law (i.e. Article 3 common to the four Geneva Conventions, and Additional Protocol II, in particular Articles 4-6), as well as the relevant customary international law.

The Legal Protection of Unlawful Combatants under GC IV

Personal field of application of GC IV as defined in Article 4 thereof.

The personal field of application of GC IV is defined in the following terms. Article 4(1) specifies:

“Persons protected by the Convention are 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.�?

This definition seems all embracing. According to this paragraph any person would be protected once he/she finds himself/herself in the hands of a Party to a conflict of occupying Power. Only nationals of that Party/Power are excluded. The very broad wording of the paragraph, read in isolation, would not only include civilians but even members of the armed forces.

The scope of the application is, however, reduced by specific exceptions. The following persons are excluded by the subsequent paragraphs of Article 4:

According to paragraph 2:

· “Nationals of a State which is not bound by the Convention�? are not protected (this is a highly theoretical restriction, since the 1949 Conventions have virtually universal participation);

· “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State,�? are not protected “while the State of which they are nationals has normal diplomatic representation in the State in whose hands they

are�? . . .

According to Article 4(4), GC IV does not protect persons protected by GC I-III. A

textual interpretation of the Conventions can only lead to the conclusion that all persons who are not protected by GC I-II, thus also persons who do not respect the conditions which would entitle them to POW status/treatment, are covered by GC IV provided that they are not:

· Nationals of a State which is not a Party to the Convention;

· Nationals of the Party/Power in which hands they are; or

· Nationals of a neutral State (only if they are in the territory of a belligerent State) or cobelligerent State with normal diplomatic representation . . .

The fact that a person has unlawfully participated in hostilities is not a criterion for excluding the application of GC IV. On the contrary, Article 5 of GC IV, which allows for some derogations—under strict conditions—from the protections of GC IV, uses the term “protected persons�? with regard to persons detained as spies or saboteurs as well as persons definitely suspected of or engaged in activities hostile to the security of the State/Occupying Power. Both the concepts of “activity hostile to the security of the State/Occupying Power�? and of “sabotage�? certainly encompass direct participation (without entitlement) in hostilities. Thus, this article would apply in particular to persons who do not fulfill the criteria of GC I-III and take a direct part in hostilities, i.e. persons labeled “unlawful combatants�? . . .

Further support for our interpretation may also be found in Military Manuals. For example in the US Military Manual FM 27-10, The Law of Land Warfare, 1956, pp.31, 98 et seq., the law developed as follows (emphasis added):

“72. Certain Persons in Occupied Areas

Persons in occupied areas not falling within the categories set forth in Article 4 [GC III], who commit acts hostile to the occupant or prejudicial to his security are subject to a special regime [reference is made to the provisions of GC IV, Part III, Section III] . . .

73. Persons Committing Hostile Acts Not Entitled To Be Treated as Prisoners of War

If a person is determined by a competent tribunal, acting in conformity with Article 5 [GC III], not to fall within any of the categories listed in Article 4 [GC III], he is not entitled to be treated as a prisoner of war. He is, however, a “protected person�? within the meaning of Article 4 [GC IV]. . . .

247. Definition of Protected Persons

[quotation of GC IV, Art. 4]

Interpretation. Subject to qualifications set forth in paragraph 248, those protected by [GC IV] also include persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war.

248. Derogations

a. Domestic and Occupied Territory

[reference is made to GC IV, Art. 5]

b. Other Areas. Where, in territories other than those mentioned in a. above, a Party to the conflict is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual is similarly not entitled to claim such rights and privileges under [GC IV] as would, if exercised in favour of such individual person, be prejudicial to the security of the State. . . .

Legal Literature

In legal writings divergent opinions are expressed about the applicability of GC IV to unlawful combatants. A number of authors clearly share our view that GC IV does cover unlawful combatants if they fulfill the nationality criteria. Baxter apparently limits the scope of application of GC IV to unlawful combatants who operate in the occupied territory. The fact that he does not extend the protection to unlawful combatants operating in the territories of the parties to a conflict (Part II, Section I) and in enemy territory (Part II, Section 2) is not consistent, given that the definition of protected persons is the same. Despite the clear indications in the wording of GC IV, some legal commentators seemingly do not recognize the applicability of GC IV to unlawful combatants at all. However, they do not give any legal reasoning for their position. It is merely asserted that GC IV does not cover unlawful combatants; an analysis of Article 4 is not provided. When these authorities refer to case law (in particular ex parte Quirin), it is case law that predates GC IV. Considering that the issue was not specifically regulated in any instrument in international humanitarian law before the adoption of GC IV, this approach is somewhat doubtful. More recent case law correctly adopts a rather different view. In the Delalic case, the ICTY found that:

“271. […] If an individual is not entitled to the protections of the Third Geneva Convention as a prisoner of war ( or the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied.�?

In 1949, GC IV was adopted in the knowledge of the problems associated with unlawful combatants (see the discussions during the Diplomatic Conference). It is therefore in our view hardly defendable to maintain that unlawful combatants were generally excluded from the scope of application of GC IV, contrary to the rather comprehensive wording of Article 4. The same would be true of claims that there is coexisting customary international law which comprehensively covers unlawful combatants and would constitute a sort of lex specialis (the US Manual quoted above would be contrary to such a customary international law!). In this connection it should also be recalled that the drafters of PI apparently had an understanding of scope of application of GC IV which would include at least certain types of unlawful combatants. . . .

Derogations

The rights and privileges defined in particular in Part II of GC IV are not absolute. Article 5 of GC IV provides for derogations in specific circumstances:

“Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited the rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.�? (Emphasis added.)

On reading this article it could be taken to apply in particular to persons who take a direct part in hostilities without fulfilling the criteria of GC I-III, i.e. such persons as are labeled “unlawful combatants�?. As pointed out above, both concepts of “activity hostile to the security of the State/Occupying Power�? and of “sabotage�? certainly do encompass direct participation in hostilities (without being entitled thereto).

Article 5 contains the following distinction:

· in the territory of a Party to conflict, such persons are not entitled to claim such rights and privileges under GC IV as would, if exercised in the favour of such individual persons, be prejudicial to the security of such State.;

· in occupied territory, such persons are, in those cases where absolute military security so requires, regarded as having forfeited rights of communication under GC IV.

Apart from problems of interpretation of concepts such as “definitely suspected�?, “hostile to the security of the State�?, “such rights and privileges . . . as would be prejudicial to the security of such State�?, “absolute military security so requires�?, the meaning of Article 5 (2), which gives a right to derogate only from the provisions relating to communication, is rendered somewhat unclear by paragraph 3, according to which “in each case (i.e. both in the situations referred to in paragraph 1 and those referred to in paragraph 2) the protected persons “shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention�?. If only provisions relating to communication can be derogated from, why is there a need to indicate as minimum protections humane treatment and fair trial?

The two categories of non-derogable protections include: the right to “humane treatment�? as defined in Articles 27 and 37, and thus the prohibitions of torture and ill-treatment; as well as the fair trial rights contained in Articles 71-76, which are made applicable to internees in non-occupied territory by Article 126 in the event of criminal proceedings. . . .

Minimum guarantees under customary international law

As we have seen, the protection of unlawful combatants under GC IV depends on whether they fulfill the nationality criteria set out in Article 4. The question remains as to how far the protections of GC IV are supplemented by other rules of international law and to what extent such rules apply to unlawful combatants who do not fulfill those criteria.

The minimum guarantees applicable to all persons in the power of a party to conflict are defined nowadays in Article 75 of PI. The scope of application is defined as follows:

“1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from the more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any similar criteria. Each Party shall respect the person, honour convictions and religious practices of all such persons.�?

This article clearly ensures that no person in the power of a Party to an international armed conflict is outside the protection of international humanitarian law. It defines the minimum standards that apply to any such person and thus increases existing protection, for example in the situations referred to in Article 5 of GC IV. . . .

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D. MILITARY ORDER OF NOVEMBER 13, 2001, AND SUBSEQUENT ENFORCEMENT OF THIS ORDER

MILITARY ORDER OF NOVEMBER 13, 2001: DETENTION, TREATMENT AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR AGAINST TERRORISM, 66 Fed. Reg. 57831, 57831-33 (Nov. 16, 2001) at http://www.whitehouse.gov/news/releases/2001/11/ 20011113-27.html (last visited: Nov. 6, 2003):

Section 1. Findings.

(a) International terrorists, including members of al Qaida, have carried out attacks on the United States diplomatic and military personnel and facilities abroad and on citizens and property within the United States on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces.

(c) Individuals acting alone and in concert involved in international terrorism possess both the capability and the intention to undertake further terrorist attacks against the United States that, if not detected and prevented, will cause mass deaths, mass injuries, and massive destruction of property, and may place at risk the continuity of the operations of the United States Government.

(d) The ability of the United States to protect the United States and its citizens, and to help its allies and other cooperating nations to protect their nations and their citizens, from such further terrorist attacks depends in significant part upon using the United States Armed Forces to identify terrorists and those who support them, to disrupt their activities, and to eliminate their ability to conduct or support such attacks.

(e) To protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunal.

(f) Given the danger to the safety to the United States and the nature of international terrorism, and to the extent provided by and under this order, I find consistent with section 836 of title 10, United States Code, that it is not practicable to apply in military commissions under this order the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.

Section 2. Definition and Policy

(a) The term “individual subject to this order�? shall mean any individual who is not a United States citizen with respect to whom I determine from time to time in writing that

(1) there is reason to believe that such individual, at the relevant times,

(i) is or was a member of the organization known as al Qaida;

(ii) has engaged in, aided or abetted, or conspired to commit, acts of international terrorism, or acts in preparation thereof, that have caused, threaten to cause, or have as their aim to cause, injury or adverse effects on the United States, its citizens, national security, foreign policy, or economy; or

(iii) has knowingly harbored one or more individuals described in subparagraphs (i) or (ii) of subsection 2(a)(1) of this order: and

(2) It is in the interest of the United States that such individual be subject to this order.

Section 4. Authority of the Secretary of Defense Regarding Trials of Individuals Subject to this Order.

(a) Any individual subject to this order shall, when tried, be tried by military commission for any and all offenses triable by military commission that such individual is alleged to have committed, and may be punished in accordance with the penalties provided for under applicable law, including life imprisonment or death.

(b) As a military function and in light of the findings in section 1, including subsection (f) thereof, the Secretary of Defense shall issue such orders and regulations, including orders for the appointment of one or more military commissions, as may be necessary to carry out subsection (a) of this section. . . .

Section 7. Relationship to Other Law and Forums

(b) With respect to any individual subject to this order—

(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and

(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual’s behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

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Department of Defense: Military Commission Order No. 1, DoD MCO No. 1, Mar. 21, 2002. Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism at http://www.defenselink.mil.news/Mar2002/d 20020321ord.pdf (last visited: Nov. 3, 2003):

4. COMMISSION PERSONNEL

A. Members

(3) Qualifications: Each member and alternate member shall be a commissioned officer of the United States armed forces (“Military Officer�?) . . .

B. Defense

(1) Office of the Chief Defense Counsel: The Chief Defense Counsel shall be a judge advocate of any United States armed force, shall supervise the overall defense efforts under the President’s Military Order, shall ensure proper management of personnel and resources, shall preclude conflicts of interest, and shall facilitate proper representation of all Accused. . . .

(3) Choice of Counsel

(b) The Accused may also retain the services of a civilian attorney of the Accused’s own choosing and at no expense to the United States Government (“Civilian Defense Counsel�?), provided that attorney: (i) is a United States citizen; (ii) is admitted to practice law in a State, district, territory, or possession of the United States, or before a Federal Court; (iii) has not been the subject of any sanction or disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (iv) has been determined to be eligible for access to information classified at the level SECRET or higher under the authority of and in accordance with the procedures prescribed in reference (c); and (v) has signed a written agreement to comply with all applicable rules of court for conduct during the course of proceedings. . . . Representation by Civilian Defense Counsel will not relieve Detailed Defense Counsel of the duties specified in Section 4(C)(2). The qualification of a Civilian Defense Counsel does not guarantee that person’s presence at closed Commission proceedings or that person’s access to any information protected under Section 6(D)(5).

5. PROCEDURES ACCORDED THE ACCUSED

The following procedures shall apply with respect to the Accused:

A. The prosecution shall furnish to the Accused, sufficiently in advance of trial to prepare a defense, a copy of the charges in English and, if appropriate, in another language that the Accused understands.

B. The Accused shall be innocent until proven guilty.

C. A Commission member shall vote for a finding of Guilty as to an offense if and only if that member is convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused is guilty of the offense. . . .

E. The Prosecution shall provide the Defense with access to evidence the Prosecutor intends to introduce at trial and with access to evidence known to the Prosecution that tends to exculpate the Accused. Such access shall be consistent with Section 6(D)(5) and subject to Section 9. . . .

H. The Accused may obtain witnesses and documents for the Accused’s defense, to the extent necessary and reasonably available as determined by the Presiding Officer. Such access shall be consistent with the requirements of Section 6(D)(5) and subject to Section 9. The Appointing Authority shall order that such investigative or other resources be made available to the Defense as the Appointing Authority deems necessary for a full and fair trial.

6. CONDUCT OF THE TRIAL . . .

B. Duties of the Commission During Trial

The Commission shall:

(1) Provide a full and fair trial.

(2) Proceed impartially and expeditiously, strictly confining the proceedings to a full and fair trial of the charges, excluding irrelevant evidence, and preventing any unnecessary interference or delay.

(3) Hold open proceedings except where otherwise decided by the Appointing Authority or the Presiding Officer in accordance with the President’s Military Order and this Order. Grounds for closure include the protection of information classified or classifiable under reference (d); information protected by law or rule from unauthorized disclosure; the physical safety of participants in Commission proceedings, including prospective witnesses; intelligence and law enforcement sources, methods, or activities; and other national security interests. The Presiding Officer may decide to close all or part of a proceeding on the Presiding Officer’s own initiative or based on a presentation, including an ex parte, in camera presentation by either the Prosecution or the Defense. A decision to close a proceeding or a portion thereof may include a decision to exclude the Accused, Civilian Defense Counsel, or any other persons, but Detailed Defense Counsel may not be excluded from any trial proceeding or portion thereof. Except with the prior authorization of the Presiding Officer and subject to Section 9, Defense Counsel may not disclose information presented during a closed session to individuals excluded from such proceedings or part thereof. . . .

D. Evidence

(5) Protection of Information

(b) Limited Disclosure: The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as necessary to protect the interests of the United States and consistent with Section 9, direct (i) the deletion of specified items of Protected Information from documents made available to the Accused, Detailed Defense Counsel, or Civilian Defense Counsel; (ii) the substitution of a portion or summary of the information for such Protected Information; or (iii) the substitution of a statement of the relevant facts that the Protected Information would tend to prove. The Prosecution’s motion and any materials submitted in support thereof or in response thereto shall, upon request of the Prosecution, be considered by the Presiding Officer, ex parte, in camera, but no Protected Information shall be admitted into evidence for consideration by the Commission if not presented to Detailed Defense Counsel. . . .

F. Voting

Members of the Commission shall deliberate and vote in closed conference. A Commission member shall vote for a finding of Guilty as to an offense if and only if that member is convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused is guilty of the offense. An affirmative vote of two-thirds of the members is required for a finding of guilty. When appropriate, the Commission may adjust a charged offense by exceptions and substitutions of language that do not substantially change the nature of the offense or increase its seriousness, or it may vote to convict of a lesser included-offense. An affirmative vote of two thirds is required to determine a sentence, except that a sentence of death requires a unanimous, affirmative vote of all of the members. Votes on findings and sentences shall be taken by secret, written ballot. . . .

9. PROTECTION OF STATE SECRETS

Nothing in this Order shall be construed to authorize the disclosure of state secrets to any person not authorized to receive them. . . .

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Annex B to Department of Defense Military Commission Instruction No. 5. April 30, 2003. Qualification of Civilian Defense Counsel at http://www.defenselink.mil/news/May 2003/d20030430milcominstno5.pdf (last visited: Nov. 3, 2003):

Excerpt from affidavit and agreement to be signed by all Civilian Defense Counsel:

I. Oaths or Affirmations. I swear or affirm that the following is true to the best of my knowledge and belief:

B. I am aware that my qualification as a Civilian Defense Counsel does no guarantee my presence at closed military commission proceedings or guarantee my access to any information protected under 6(D)(5) or Section 9 of MCO No. 1. . . .

II. Agreements. I hereby agree to comply with all applicable regulations and instructions for counsel, including any rules of court for conduct during the course of the proceedings, and specifically agree, without limitation, to the following:

E. During my representation of an Accused before military commissions, unless I obtain approval in advance from the Appointing Authority of the Presiding Officer to do otherwise, I will comply with the following restrictions on my travel and communications:

1. I will not discuss, transmit, communicate, or otherwise share documents or information specific to the case with anyone except as is necessary to represent my client before a military commission. In this regard, I will limit such discussion, transmission, communication or sharing to: (a) persons who have been designated as members of the Defense team in accordance with applicable rules, regulations, and instructions; (b) commission personnel participating in the proceedings; (c) potential witnesses in the proceedings; or (d) other individuals with particularized knowledge that may assist in discovering relevant evidence in this case. I understand that nothing in this agreement allows me to disregard any laws, rules, regulations, or instructions governing the handling of classified information and material, or other Protected Information.

2. Once proceedings have begun, I will not travel from the site of the proceedings without the approval of the Appointing Authority of the Presiding Officer.

F. At no time, to include any period subsequent to the conclusion of the proceedings, will I make any public or private statement regarding any closed sessions of the proceedings or any classified information or material, or document or material constituting protected information under MCO No. 1. . . .

H. I understand that there may be reasonable restrictions on the time and duration of contact I may have with my client, as imposed by the Appointing Authority, the Presiding Authority, detention authorities, or regulation.

I. I understand that my communications with my client, even if traditionally covered by the attorney-client privilege, may be subject to monitoring or review by government officials, using any available means, for security and intelligence purposes. I understand that any monitoring will only take place in limited circumstances when approved by proper authority, and that any evidence or information derived from such communications will not be used in proceedings against the Accused who made or received the relevant communication. I further understand that communications are not protected if they would facilitate criminal acts or a conspiracy to commit criminal acts, or if those communications are not related to the seeking or providing of legal advice.

J. I agree that I shall reveal to the Chief Defense Counsel and any other appropriate authorities, information relating to the representation of my client to the extent that I reasonably believe necessary to prevent the commission of a future criminal act that I believe is likely to result in death or substantial bodily harm, or significant impairment of national security. . . .

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E. UNITED STATES COURT DECISIONS ON THE STATUS OF GUANT�?NAMO DETAINEES

The leading case in this area is not a case dealing with the plight of the Guantánamo detainees, but a United States Supreme Court case decided during World War II. This case has set the precedent in the area of unlawful enemy combatants under the control of the United States military.

Ex parte Quirin, 317 U.S. 1, 63 S.Ct. 2 (1942): The United States Supreme Court convened a special term in order to grant certiorari in this case to determine whether the detention of seven German nationals and one United States citizen for trial by military commission on charges of violations of the law of war and Articles of War was in violation of the Constitution and the laws of the United States. Id. at 18-19, 63 S.Ct. at 6. The facts of the case are as follows. All eight petitioners lived in the United States during some point in their life. Id. at 20, 63 S.Ct. at 7. Each petitioner returned to Germany between 1933 and 1941 and received training in explosives and sabotage. Id. All of the petitioners were instructed by an officer in the German High Command to penetrate U.S. soil and destroy war industries and facilities. Id. at 21, 63 S.Ct. at 7-8. All of the petitioners traveled to the United States via submarine and landed at Amagansett Beach in Long Island, New York or Ponte Verda Beach in Florida. Id. at 21, 63 S.Ct. at 7. Each petitioner landed in military uniform, and each buried his uniform before continuing from the beach dressed in civilian clothing. Id. at 21-22, 63 S.Ct. at 7-8.

The President of the United States created a military commission and directed it to try petitioners for violations of the “law of war.�? Id. at 22, 63 S.Ct. at 8. The petitioners challenged the President’s authority to convene such a commission. They responded by petitioning the United States Supreme Court to allow them access to the federal courts of the United States and the constitutional guarantees that accompany those judicial proceedings. Id. at 24, 63 S.Ct. at 9.

The Supreme Court began its analysis by stating that “the detention and trial of petitioners -- ordered by the President in the declared exercise of his powers as Commander in Chief of the Army in time of war and grave public danger -- are not to be set aside by the courts without the clear conviction that they are in conflict with the Constitution or the laws of Congress constitutionally enacted.�? Id. at 25, 63 S.Ct. at 9. The Court concluded that the President had the constitutional authority to subject the petitioners to trial by military commission because of his power as Commander in Chief. Id. at 26, 63 S.Ct. at 10. This power, established in Article II of the United States Constitution, allows the Commander in Chief “to wage war which Congress has declared, and to carry into effect all laws passed by Congress for the conduct of war and for the government and regulation of the Armed Forces, and all laws defining and punishing offences against the law of nations, including those that pertain to the conduct of war.�? Id. Having concluded that the President had the requisite authority to create and conduct military commissions, the Court further asked the question whether the petitioners could be constitutionally tried in front of a military commission for violations of the law of war. Id. at 29, 63 S.Ct. at 11.

The Court noted that the law of war created a distinction between lawful and unlawful combatants. Lawful combatants are those that are eligible for prisoner of war status upon capture by enemy forces. Id. at 31, 63 S.Ct. at 12. Unlawful combatants, on the other hand, “are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The . . . enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property . . . are belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals. . . .�? Id. The Court concluded that “[o]ur government, by thus defining lawful belligerents entitled to be treated as prisoners of war, has recognized that there is a class of unlawful belligerents not entitled to that privilege . . . This precept of the law of war has been so recognized in practice both here and abroad, and has so generally been accepted as valid by authorities on international law that we think it must be regarded as a rule or principle of the law of war recognized by this Government . . .�? Id. at 35-36, 63 S.Ct. at 14-15. (footnote omitted)

Petitioners’ argued, in the alternative, that if the Court found that military commissions were properly utilized in the present case, that the Fifth and Sixth Amendments of the United States Constitution should still be applied within the military commissions. The Court responded to this argument by stating that, at the time of the drafting of the Constitution and the Bill of Rights, “[p]resentment by a grand jury and trial by jury . . . were procedures unknown to military tribunals, which are not courts in the sense of the Judiciary Article.�? Id. at 38-39, 63 S.Ct. at 16. The Court concluded that the Fifth and Sixth Amendments were not intended to extend the right to a jury trial or indictment by a grand jury to trials performed by military commissions; therefore, the petitioners’ were not entitled to a trial by jury or a grand jury indictment. Id. at 40, 63 S.Ct. at 16. Furthermore, although one petitioner was a United States citizen, the Court held that he was no more entitled to the protections of the Fifth and Sixth Amendments than were the other seven petitioners, as all were considered enemy combatants. Id. at 44, 63 S.Ct. at 19. The Court held that this case, with these particular facts and petitioners, fell within the ‘boundaries’ of the jurisdiction of military tribunals, and hence did not reach the issue of the appropriate jurisdictional boundaries of military tribunals. Id. at 46, 6 S.Ct. at 20. Therefore, the United States Supreme Court affirmed the District Court orders that denied petitioners’ leave to file petitions for habeas corpus in the United States Supreme Court.

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Several Guantánamo detainees have, by next friends, filed petitions for writ of habeas corpus in various Federal District Courts in the United States. 28 U.S.C. § 2241(c)(3) allows a federal court to grant a petition for habeas corpus if the petitioner is being held in violation of the laws, treaties, or Constitution of the United States of America.

Al Odah, et al. v. United States, 321 F.3d 1134 (D.C.Cir. 2003), cert. granted sub nom. Rasul v. Bush, 124 S. Ct. 534 (U.S. Nov. 10, 2003) (No. 03-343); Rasul v. Bush, 321 F.3d 1134 (D.C. Cir.), cert. granted, 124 S. Ct. 534 (U.S. Nov. 10, 2003) (No. 03-334).

The United States District Court of Appeals, District of Columbia Circuit, consolidated the cases of Al Odah v. United States, Rasul v. Bush, 215 F.Supp.2d 55 (D.C. Dist. 2002) and Habib v. Bush to decide collectively if the district court had jurisdiction to hear their claims. The United States District Court for the District of Columbia dismissed all of these cases for lack of jurisdiction. The Court of Appeals relied primarily on the Supreme Court decision in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936 (1950). The Appellate Court concluded, upon reviewing Johnson and subsequent cases of relevant precedent, that “[i]f the Constitution does not entitle the detainees to due process, and it does not, they cannot invoke the jurisdiction of our courts to test the constitutionality or the legality of restraints on their liberty.�? (Al Odah, 321 F.3d at 1142)

The Court went on to conclude that Guantánamo Bay is not within the sovereign jurisdiction of the United States. The Court stated “[t]he text of the leases [for the Guantánamo Bay Naval Base] . . . shows that Cuba - not the United States - has sovereignty over Guantánamo Bay. . . . Sovereignty, on the other hand, meant then – and means now – supreme dominion exercised by a nation. The United States has sovereignty over the geographic area of the States and, as the Eisentrager Court recognized, over insular possessions, . . . Guantánamo Bay fits within neither category.�? (Id. at 1143-44). Therefore, the Court of Appeals held that the federal courts of the United States have no jurisdiction to hear the claims of the detainees in Guantánamo Bay (Id. at 1145).

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Amicus Curie brief filed by Joe Margulies and others in Rasul v. Bush, 215 F.Supp.2d 55 (D.C. Dist. 2002) (Excerpts), cert. granted, 72 U.S.L.W. 3327 (U.S. Nov. 10, 2003) (No. 03-334).

On November 13, 2001, the President issued a Military Order authorizing indefinite detentions of persons he determined to be or to harbor Al Qaida or other international terrorists. H. Pet. ¶¶28-29; R.Pet. ¶¶34-35. He has not determined that any of the four prisoners here are subject to that order, nor are they properly subject to it. H.Pet. ¶¶31-32; R.Pet. ¶¶39-40.

Since 1903, the United States Naval Base at Guantánamo Bay has been under exclusive jurisdiction and control of the United States. For several decades the United States has resisted claims of national sovereignty made by Cuba, insisting that its occupation of Guantánamo is legal and will remain so in perpetuity, for so long as the United States chooses to exercise dominion and control. H.Pet. ¶¶38-39; R.Pet. ¶42. Guantánamo is a self-sufficient and fully American enclave, larger than Manhattan, with thousands of military and civilian residents and all the trappings of a small American city, with its own schools, internal transportation system, power and water supply. Offenses committed by both civilians and foreign nationals living on Guantánamo are brought before federal courts on the mainland, where defendants enjoy the full panoply of Constitutional rights. H.Pet. ¶38; R.Pet. ¶¶ 41, 43. A history of Guantánamo posted on a United States Navy web site describes it as a “Naval reservation, which for all practical purposes, is American territory.�? H.Pet. ¶42; R.Pet. ¶45.

. . . The issue is posed here only in a narrow context. This appeal does not address military detentions of foreign nationals in combat zones or in territory under the jurisdiction of a foreign sovereign. Nor does it address the issue as misconceived by the district court – the broad issue of whether American courts ever have habeas corpus jurisdiction over aliens outside United States sovereign territory. Rasul, et. al. v. Bush, et al., 2002 U.S. Dist. LEXIS 14031 (hereafter “Order�?), at 38, 51-52 (2002).

Rather, the narrow question presented here is whether the district court has jurisdiction to review an executive detention by the military, acting solely under purported Presidential authority and on the basis of secret information, with no judicial supervision whatsoever, of citizens of friendly foreign nations who have not engaged in combat against the United States or committed other hostile acts against the United States, who are subjected to prolonged imprisonment for an indefinite period, on territory far removed from any combat zone, and which is under exclusive American jurisdiction and effective control, on which no foreign government has jurisdiction and in which no foreign court can intervene.

As thus defined by the facts in these cases, the question can have but one answer consistent with the rule of law. If United States courts have no jurisdiction to review the executive detentions at Guantánamo, then no court has jurisdiction to review them. Neither American constitutional tradition nor international law countenances such a result. Whether by habeas corpus or otherwise, courts must be able to review the lawfulness of these executive detentions. Liberty requires no less.

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Gherebi v. Bush, 262 F.Supp.2d 1064 (C.D.Cal. 2003): The brother of Falen Gherebi brought a petition for habeas corpus in the United States District Court for the Central District of California (Id. at 1064-65). The petition alleged that Falen Gherebi was being held in Guantánamo Bay, Cuba, incommunicado, without the assistance of counsel, and that these actions by the United States government violated the Third Geneva Convention and the Constitution of the United States of America (Id. at 1065). The question the District Court was asked to consider was whether any United States federal court has jurisdiction over the detainees in Guantánamo that would allow it to hear the habeas corpus petitions of Gherebi and the other detainees being held there. The District Court decided that it did not have jurisdiction to hear the habeas corpus petition of Gherebi or any Guantánamo detainee because of a precedent set in Johnson v. Eisentrager, 339 U.S. 763, 70 S.Ct. 936 (1950). The District Court reviewed the precedent and facts of this case and other cases that have interpreted its holding. This case dealt with German nationals who sought habeas corpus relief in the courts of the United States for relief from their military detention abroad. These German nationals were detained because, although they were civilian workers working in Japan, they aided the Japanese in military activities after Germany had surrendered but before Japan had surrendered to Allied Forces (Gherebi, 262 F.Supp. at 1066-67.) The Supreme Court in Johnson held that the German nationals were at no time within the sovereign territory of the United States, and therefore that no court in the United States had territorial jurisdiction over the German nationals to hear their habeas corpus claim (Johnson, 339 U.S. at 778).

The District Court rejected Gherebi’s argument that the precedent in Johnson does not apply in this situation because he is being held at Guantánamo Bay, Cuba, which is a territory of the United States (Gherebi, 262 F.Supp. at 1069). The Court stated that although Gherebi argued that the United States controled the facilities at Guantánamo Bay for all “practical purposes,�? “such control does not establish sovereignty�? (Id. at 1069-70). Therefore, the Court concluded that the facility at Guantánamo Bay, Cuba, is not a sovereign territory of the United States and there is no territorial jurisdiction over any of the detainees in Guantánamo Bay (Id. at 1069-70).

“The Court reaches this conclusion reluctantly, however, because the prospect of the Guantánamo captives’ being detained indefinitely without access to counsel, without formal notice of charges, and without trial is deeply troubling�? (Id. at 1066).

“More than 15 months have gone by since the United States placed Falen Gherebi and hundreds of other captured individuals into detention in Guantánamo. Not one military tribunal has actually convened. Not one Guantánamo detainee has been given the opportunity to consult an attorney, has had formal charges filed against him or has been able to contest the basis for his detention. It is unclear why it has taken so long for the Executive Branch to implement its stated intention to try these detainees. Putting aside whether these captives have a right to be heard in a federal civilian court—indeed, especially because it appears they have no such right—this lengthy delay is not consistent with some of the most basic values our legal system has long embodied.�? (Id. at 1073).

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For additional reading of cases in the United States federal courts dealing with the petitions of enemy combatants, see:

Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir.2003), cert. granted, 124 S. Ct. 981 (U.S. Jan. 9, 2004) ( No. 03-6696): This case involves a petition for habeas corpus by a United States citizen “enemy combatant�? captured in Afghanistan and transferred from Guantánamo Bay to Norfolk Naval Station Brig in Virginia. The Fourth Circuit stated that any judicial review of the President’s use of his war powers as Commander in Chief will be highly deferential to the decisions of the political branches. The Fourth Circuit then concluded that detention, rather than trial, of enemy combatants served two purposes: restricting the enemy combatant’s ability to rejoin the enemy in the fight against the United States and not burdening the military by forcing them to litigate issues of capture in distant places. The Fourth Circuit refused to recognize the applicability of the Geneva Convention to this case, stating that the Geneva Convention was not self-executing and that since it had not yet been incorporated into domestic law, no private right to a remedy existed for the petitioner in the domestic courts. Therefore, the Fourth Circuit concluded that the petitioner was not entitled to habeas corpus relief in the present case.

See also Coalition of Clergy v. Bush, 310 F.3d 1153 (9th Cir. 2002): The Ninth Circuit held that the coalition of clergy, lawyers and law professors who petitioned the Court for a writ of habeas corpus did not have standing as next friends, because no significant relationship existed between the coalition and the detainees in Guantánamo Bay. The Ninth Circuit further concluded that the coalition did not have third-party standing either, because there was no evidence of an injury in fact and the coalition did not have a significantly close relationship with the detainees.

In Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), cert. granted, 72 U.S.L.W. 3488 (U.S. Feb. 20, 2004) ( No. 03-1027): the U.S. Court of Appeals for the Second Circuit held that the court has habeas corpus jurisdiction to consider the propriety of the arrest of a U.S. citizen in the U.S. and his detention by military authorities as an enemy combatant, because the citizen is suspected of being associated with al Qaeda and planning terrorist attacks in the United States. The court concluded that Padilla’s detention was not authorized by Congress, and absent such authorization, the President does not have the power under Article II of the Constitution to detain as an enemy combatant a U.S. citizen on U.S. soil outside a zone of combat. The court relied upon 18 U.S.C. § 4001(a) (2000) (the “Non-Detention Act�?) which prohibits such detentions absent specific congressional authorization. The court did not need to address the detention of a U.S. citizen seized within a zone of combat in Afghanistan, such as the court confronted in Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003) ("Hamdi III"). The court concluded that Padilla should be entitled to the constitutional protections extended to other citizens, including the right to council and the right to access to the courts.

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F. NON-GOVERNMENTAL ORGANIZATION REPORTS ON THE HUMAN RIGHTS SITUATION IN GUANT�?NAMO BAY, CUBA

International Committee of the Red Cross, Guantánamo Bay: Overview of the ICRC’s work for internees, at http://www.icrc.org/web/eng/siteeng0.nsf/html/5QRC5V?OpenDocument (last visited: Oct. 15, 2003).

In mid-August 2003 the ICRC began a new visit to internees held at the US-run detention facility at Guantánamo Bay. The work has been continuing since the internees began arriving there in January 2002. The following article explains why and how the ICRC carries out these visits and why it is concerned about the impact the seemingly open-ended detention is having on the internees:

The ICRC visits around 660 people currently held at Guantánamo. The internees come from more than 40 countries, speaking around 17 languages. Each visit lasts around six weeks and comprises a team of ICRC delegates, highly experienced in detention work, as well as medical personnel and interpreters. By August 2003, the ICRC has facilitated the exchange of more than 5,800 Red Cross Messages between the internees and their families.

Aim of the visits:

People held as a result of conflict or armed violence are protected by international humanitarian law, and should be treated humanely.

The US Government refused to grant any internee in Guantánamo the status of Prisoner of War. All the same it said it would treat them “. . . 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.�? (White House Fact Sheet)

The US agreed to let ICRC teams visit Guantánamo as an extension of the work the organization had already begun in detention facilities in Afghanistan during and after the conflict in 2001.

The role of the ICRC, as an independent, non-judgmental humanitarian organization, is to regularly assess the facilities, speak with the internees, and to maintain an ongoing dialogue with the US authorities in order to offer observations and make recommendations where appropriate. While the ICRC monitors the conditions of the internment at Guantánamo, the responsibility for ensuring that the persons held there are indeed treated humanely lies with the US authorities.

Why the ICRC?

The ICRC has been visiting people detained in connection with armed conflicts since 1915 when its delegates negotiated access to tens of thousands of prisoners held during World War One. The practice of the ICRC visiting prisoners of war-combatants captured during an international armed conflict-is codified in the Third Geneva Convention, to which the USA and 190 other states are party. Common Article Three of the Four Geneva Conventions also gives the ICRC the right to request access to persons detained in non-international wars.

In 2002 the ICRC visited nearly 450,000 detainees, held in more than 75 countries around the world.

Legal Concerns:

For the ICRC, the question of the legal status of the persons held at Guantánamo Bay and the legal framework applicable to them remains unresolved.

The ICRC’s main concern today is that the US authorities have placed the internees in Guantánamo beyond the law. This means that, after more than eighteen months of captivity, the internees still have no idea about their fate, and no means of recourse through any legal mechanism.

Through its visits, the ICRC has been uniquely placed to witness the impact this uncertainty has had on the internees. It has observed a worrying deterioration in the psychological health of a large number of them. This has prompted the ICRC to ask the US authorities to institute a due legal process in accordance with the judicial guarantees stipulated by international humanitarian law. This process should formalize and clarify the fate of each and every individual in Guantánamo and put an end to the seemingly open-ended system of internment that currently exists. The ICRC has also asked the US authorities to implement significant changes at Guantánamo Bay.

The US has the right to legally prosecute any internee at Guantánamo Bay suspected of having committed war crimes or any other criminal offence punishable under US law.

Procedures:

The same standard working procedures have been put into place at Guantánamo that the ICRC demands in every place of detention it visits in the world. That is:

ICRC delegates insist on speaking in total privacy to each and every internee held; teams should be able to inspect all cells and other facilities.
Visits should be made at the frequency of the ICRC’s choice and for so long as the people are held in detention.
All detainees should have the opportunity to write to their families using the Red Cross message system.
Delegates conduct confidential discussions with the camp authorities before and at the end of each visit to raise concerns and make recommendations where appropriate.
Any internee about to be transferred out of Guantánamo is interviewed privately before his departure to ensure that he agrees to be repatriated.

Minors:

The ICRC has visited all the juveniles detained at Guantánamo. The US authorities have made efforts to provide special measures for some of the juveniles, including housing them separately from the adult population and providing special counseling. Nonetheless, the ICRC does not consider Guantánamo an appropriate place to detain juveniles. It is especially concerned about the fact that they are held away from their families and worries about the possible psychological impact this experience could have at such an important stage in their development.

Relationship with the US authorities:

At the beginning and end of each visit to Guantánamo the ICRC discussed its findings with the military authorities in the camp as well as the appropriate authorities in Washington. A number of recommendations have been partly implemented, but the ICRC feels that significant changes need to be made.

The ICRC’s dialogue with the US on the conditions of the internment and the treatment of the internees remains frank and open. Nonetheless, serious divergences of opinion persist on a number of crucial issues.

Confidentiality:

Wherever the ICRC visits places of detention, its findings and observations about the conditions and treatment for detainees are discussed confidentially with the authorities in charge. Guantánamo Bay is no exception. Confidentiality is an important working tool for the ICRC in order to preserve the exclusively humanitarian nature of its work. The ICRC is concerned that any information it divulges about its findings could easily be exploited for political gain. Moreover, the policy of confidentiality ensures that the ICRC obtains and, importantly, maintains, access to tens of thousands of detainees around the world.

Red Cross Messages:

For many of the internees in Guantánamo, Red Cross messages are the only contact they have with their families in the outside world. As the feeling of isolation and despair has increased, these messages have become increasingly valuable for the internees and their families.

Red Cross messages contain only family news and are checked by the US authorities to ensure that this is the case. This corresponds to standard worldwide practice wherever the ICRC visits places of detention.

The Red Cross message operation in Guantánamo is a major logistical exercise, involving a number of ICRC delegations, as well as national Red Cross and Red Crescent societies around the world. Every message is hand delivered to the intended addressee.

Military Commissions:

The US had publicly announced its plans to set up military commissions to try at least some of the internees held in Guantánamo.

International humanitarian law stipulates that any proceedings against detainees should respect fundamental judicial guarantees, such as the presumption of innocence, the right to be tried by an impartial and independent tribunal, the right to competent legal counsel, and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment.

The ICRC is following the evolution of the military commissions closely and has opened a dialogue with the US authorities to discuss the issue in more depth and raise any concerns it may have.

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Human Rights Watch, Briefing Paper on U.S. Military Commissions, p.1-8 at http://www.hrw.org/backgrounder/usa/military-commissions.htm (last visited: Oct. 23, 2003) © 2003 Human Rights Watch (excerpt):

The U.S. government is moving closer to convening the military commissions authorized by President Bush in November 2001 to try suspected terrorists. Despite President Bush's oft-repeated insistence that the war on terror is a war to affirm and protect basic human rights, the rules for the proposed commissions fall far short of international due process standards.

If the proposed commissions try terrorist suspects under the existing military orders and instructions, the trials will undermine the basic rights of defendants to a fair trial; yield verdicts - possibly including death sentences - of questionable legitimacy; and deliver a message worldwide that the fight against terrorism need not respect the rule of law.

The Department of Defense has issued a series of orders and instructions governing most aspects of the commissions, from their basic organization, to the crimes to be prosecuted. These rules incorporate certain due process safeguards into the commissions, including the presumption of innocence, proceedings open to the public, and the presentation of evidence and cross examination of witnesses. Important as they are, these provisions cannot overcome the cumulative impact of other provisions that militate against fairness. They provide a patina of due process to proceedings that are otherwise deeply flawed.

Under the current rules, the commissions will:

- Deprive defendants of a trial by an independent court.
- Improperly subject criminal suspects to military justice.
- Try prisoners of war (POWs) in a manner that violates the 1949 Geneva Conventions.
- Provide lower due process standards for non-citizens.
- Restrict the right to choose one's defense counsel.
- Deprive defense counsel the means to prepare an effective defense.
- Impose a gag order on defense counsel

Lack of Independent Judicial Oversight

The military commissions established by the Bush administration and the Department of Defense do not allow for review by a court independent of the executive branch of government. Review of the commissions' proceedings is limited to a specially created panel appointed by the Secretary of Defense that will consist solely of military officers. No appeal is permitted to U.S. federal courts or the U.S. Court of Appeals for the Armed Forces, a civilian court independent of the executive branch. The President has final review of commission convictions and sentences.

The executive branch is thus prosecutor, judge, jury and - since the commissions can impose the death penalty - potential executioner. Persons tried and convicted by the commissions will have no opportunity for independent judicial review of verdicts, no matter how erroneous, arbitrary, or legally unsound. Indeed, a defendant cannot even ask civilian judges to rule on the legality of military commission jurisdiction over him.

Improper Use of Military Courts

President Bush's Military Order of November 13, 2001 authorizes the use of military commissions to try non-U.S. citizens who are or were members of al-Qaeda, who engaged in acts of international terrorism, or who knowingly "harbored" such persons. Military commissions are permitted under international law within the context of an armed conflict. But President Bush's order encompasses civilians who had no connection to armed conflict as understood under international humanitarian law and, indeed, whose acts were committed far from any actual battlefield. Using military courts to try such persons violates their right to trial by an independent and impartial court.

According to the U.N. Human Rights Committee, the body that monitors compliance with the International Covenant on Civil and Political Rights, the use of military courts to try civilians "could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice." Such would seem to be the case with the U.S. military commissions. The Bush Administration appears intent on evading the due process protections of U.S. federal courts by trying civilians for alleged military offenses that are in fact crimes that should be prosecuted in a regular criminal court.

Under the military commission rules, an offense prosecutable by the commissions must have taken place "in the context of and was associated with armed conflict." The definition of an armed conflict under the commission rules is so broad, however, that virtually any terrorist act anywhere in the world would be within the commission's jurisdiction. The defendant's conduct need only be distantly or vaguely related to a traditional battlefield. According to the rules, the nexus between the defendant and armed conflict:

could involve, but is not limited to, time, location, or purpose of the conduct in relation to the armed hostilities.... This element does not require a declaration of war, ongoing mutual hostilities, or confrontation involving a regular national armed force. A single hostile act or attempted act may provide sufficient basis for the nexus so long as its magnitude or severity rises to the level of an "armed attack" or an "act of war," or the number, power, stated intent or organization of the force with which the actor is associated is such that the act or attempted act is tantamount to an attack by an armed force.

This explanation leaves open the possibility that the Bush administration - which has stated it is engaged in a global war against terrorism - might well consider any violent act by any suspected member of al-Qaeda anywhere in the world to be "associated with armed conflict." For instance, a non-U.S. national living in the United States could be tried by a military commission for the crime of "aiding the enemy" if he sent funds to al-Qaeda. The question is not whether such conduct can properly be criminalized, but rather which court should exercise jurisdiction.

Under the commission rules, criminal acts that should be prosecuted by a U.S. civilian court can easily be deemed to have the necessary nexus to an armed conflict and thus be prosecutable by the military commissions. Such a misuse of military courts to try civilians would be an evasion of U.S. obligations to conduct fair trials under international human rights law.

Military Commission Jurisdiction Over POWs

The U.S. military order and instructions are inconsistent with provisions of the 1949 Geneva Conventions relating to the prosecution of prisoners of war (POWs). Under the Third Geneva Convention, a POW can be validly sentenced only if tried by "the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power," and "shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him."

Because U.S. service members are tried under courts-martial as established by the Uniform Code of Military Justice and have a right of appeal to an independent civilian court, any POW held by the United States must also be tried by a court-martial and have a similar right of appeal. Military commissions are not the same as courts-martial - they were created precisely to preclude some of the procedural safeguards of courts-martial, and, as noted under the Military Order of November 13, 2001, persons tried before the commissions have no right of appeal to a civilian court.

Detained Taliban soldiers (members of the regular armed forces of the then-government of Afghanistan) and perhaps other detained combatants should have been designated by the United States as POWs under the Third Geneva Convention. Moreover, all captured belligerents should have been treated as POWs unless a "competent tribunal" individually determined otherwise. The Bush administration instead violated its clear obligations under the Third Geneva Convention and made a blanket ruling that no captured combatants in Afghanistan were entitled to POW status. Denying POW status without convening competent tribunals was not only unlawful, it contravened both past U.S. military practice and current practice in Iraq.

The failure of the United States to properly determine whether any persons held in connection with the armed conflict in Afghanistan are POWs does not obviate its legal obligation to ensure that any trials of persons entitled to POW status are conducted in courts-martial with a right of appeal to an independent civilian court. "[W]ilfully depriving a prisoner of war of the rights of fair and regular trial" is a grave breach of the Third Geneva Convention.

The improper determination of the legal status of captured belligerents also bears on the propriety of charges brought against persons prosecuted before the commissions. Under international humanitarian law, so-called unlawful or unprivileged belligerents do not have any combatant immunity. That is, they may be prosecuted for conduct - such as shooting at U.S. forces - that is not criminal when undertaken by members of the armed forces. The military commission rules state that where an element of a crime requires the absence of combatant immunity, the prosecutor has the burden of establishing that the accused was indeed an unprivileged belligerent. The issue must be decided in each case based on a fair and independent assessment of the specific facts before the commission.

The U.S. government's high-level, public assertions that none of the persons captured during the international armed conflict in Afghanistan are entitled to POW status should not play any role in the determinations made by the military commission concerning the status of individuals being prosecuted before them. We are concerned, however, that it will be extremely difficult for a court under the direct authority of the executive branch to reach an independent and impartial finding on this issue.

Second-Class Justice for Non-Citizens

The President's Military Order authorizing the commissions restricts their jurisdiction to persons who are not U.S. citizens. U.S. citizens may not be tried before the commissions, regardless of whether they were combatants who committed war crimes. This exclusion presumably reflects a political judgment that the U.S. public would not accept the truncated justice of commission proceedings for U.S. citizens. International human rights law, however, does not permit countries to discriminate between citizens and non-citizens with regard to their fair trial rights. The fact that a person is not a U.S. citizen should not be used as an excuse to weaken protections for their internationally recognized rights.

Right to Counsel of Choice

The military commission instructions provide for the mandatory appointment of a military defense counsel for the defendant, who would have the right to request a different military counsel. The defendant may also retain, at his own expense, private counsel, but military counsel would remain assigned to the defense team. As the instructions state, the "[a]ccused must be represented at all relevant times by Detailed Defense Counsel [military defense counsel]."

The right to counsel of choice is an integral component of a fair trial - one recognized in international and U.S. law, including the rules for courts-martial. Nevertheless, the Department of Defense instructions for military commissions violate this fundamental right by requiring the defendant to accept a military lawyer and by denying the defendant the right to either represent himself or to be represented solely by private counsel.

In the United States, low-income defendants who cannot afford to retain their own private counsel as a practical matter must accept lawyers assigned to them by a public defender or legal services organizations. Yet these lawyers are independent of the government. In the case of the military commissions, however, the defendants will be compelled to conduct a defense with counsel provided by, and under the ultimate authority of, the executive branch that is prosecuting and judging them.

We do not question the ability or willingness of military defense lawyers to represent zealously and competently anyone brought to trial before the military commissions. But there is no lawful basis for denying a defendant tried before military commissions the ability of conducting a defense without the participation of military defense lawyers. The ability to represent oneself or to be represented solely by private counsel takes on added significance in the context of foreign persons who were captured in Afghanistan or other countries and held as military prisoners at Guantánamo. For reasons of culture, personal history, and the conditions of their imprisonment, many of those detainees may never fully trust or cooperate with U.S. military counsel assigned to them. Such trust and cooperation are, of course, vital to an effective defense.

Restrictions on Effective Defense

The military commission rules impose astounding limitations on the ability of defense counsel - both military and civilian lawyers - to mount an effective defense of their clients. These restrictions on travel, research, and communications "during the pendency of the proceedings" are spelled out in the affidavit civilian lawyers for the commissions are required to sign and with which military defense counsel must comply. Taking the rules at face value, defense representation could be limited to concocting legal arguments from a room in Guantánamo, with no leeway to interview witnesses or gather evidence elsewhere. The rules also reflect the Department of Defense's willingness to disregard the confidentiality of attorney-client communications.

Evidence Gathering: Counsel may not "discuss or otherwise communicate or share documents or information about the case with anyone" except members of the "Defense Team." The provision is far broader than necessary to meet legitimate national security concerns, e.g. to ensure that classified documents or information obtained during the trial proceedings are not passed on to terrorist organizations. The excessive breadth of the restriction on attorney communications significantly limits the ability of counsel to mount a meaningful defense. Preparation of a criminal defense includes the identification of relevant witnesses and the acquisition of useful documents and other information. The need to undertake such work can also continue during trial proceedings themselves. Read literally, the provision would prevent lawyers from trying to locate and talk to prospective witnesses, conversations that would necessarily include discussion of at least some aspects of a case.

In addition, the rules mandate that all work by defense lawyers relating to the commission proceedings, including electronic or other research, be done at the site of the proceedings. Requiring all defense work to be done at Guantánamo or other site of commission proceedings makes constructing an effective defense nearly impossible. On their face, these rules prevent members of the defense team from leaving Guantánamo to locate and interview potentially exculpatory eyewitnesses in Afghanistan or other countries. They would not be able to travel to locate and review useful documents. They would not be able to investigate the scene of the alleged conduct. In addition, the rules would prevent civilian attorneys from using stateside paralegals and other lawyers to work on aspects of the case that do not entail protected or classified information.

Defense Travel Restrictions: Defense attorneys must also obtain permission from military authorities to travel to and from the site of the proceedings and to transmit documents from there unless they receive prior approval from the Presiding Officer, the head of the commission.

The rules suggest that the Presiding Officer may give approval to modify these travel and communication restrictions. Nevertheless, they give scant guidance as to the criteria by which the Presiding Officer should respond to defense attorney requests. Nothing requires a Presiding Officer, for example, to exercise discretion according to the criteria of enabling a meaningful defense. Leaving the ability of the defense team to develop the facts necessary to represent their client to the unfettered discretion of the commission violates the most basic notion of the right to a defense.

On June 4, 2003 Human Rights Watch spoke with Major John Smith, the Judge Advocate Spokesman in the Office of Military Commissions at the Department of Defense concerning the travel and communications restrictions. Major Smith acknowledged that the literal language of the rules could be read as preventing research off-site and limiting attorney communications beyond what is necessary to protect national security information. He stated that the issue was currently under review for clarification so that the language would "not be read with unintended results."

Attorney-Client Confidentiality: Defense counsel must represent their clients knowing that any communications with them may be monitored by government officials for "security and intelligence purposes." Such conversations are traditionally covered by the attorney-client privilege of confidentiality, to encourage clients to confide openly with their attorneys. The ability to communicate candidly and effectively with one's attorney is inherent in the right to counsel, which in turn, helps secure the overarching right of due process and a fair trial. The U.S. government's willingness to profoundly compromise these rights is deeply troubling. Moreover, it forces attorneys who represent defendants before the military commissions to do so knowing the applicable rules are likely to impede the open communication essential for constructing a proper defense.

Security Restrictions on Civilian Defense Lawyers: The military commission rules deny civilian counsel with appropriate security clearance the same access to protected information as military counsel. They authorize the Secretary of Defense or his designate, or the Presiding Officer, to close proceedings on broad grounds, such as to protect "intelligence and law enforcement sources, methods, or activities; and other national security interests." Civilian defense counsel, unlike military counsel, may be excluded from closed military commission proceedings. The commission rules also authorize the Presiding Officer to issue protective orders to safeguard "protected information" including orders to delete the information from documents made available to the defendant or the defense team. The commission may not consider protected information unless it is presented to the military defense counsel. But civilian defense counsel may be denied access to such information even when it is admitted into evidence.

Civilian counsel may not represent defendants before the military commission unless they have received security clearance of "SECRET" or higher. The rules require that attorneys who do not already possess a security clearance must pay "any actual costs associated with processing" the security clearance. While requiring a security clearance is permissible, we are troubled that attorneys even with high-level security clearances are not guaranteed access to all materials presented in a case before the commissions. We note also that the rules do not commit the government to trying to expedite security clearances for civilian attorneys seeking to represent defendants before the commissions.

Gag Order for Defense Counsel

While the commission proceedings are presumptively open to the public and press, the commission rules nonetheless contain various provisions that prevent defense counsel from speaking publicly about their cases or commission proceedings. Collectively these rules impose a gag order on defense attorneys, a dictate of silence that contradicts the fair trial purposes of open proceedings.

One commission rule, discussed above, prevents defense counsel from discussing information about the case with anyone except the defense team. In addition to limiting defense counsel investigations, this rule precludes defense counsel from talking to the press or public at large about their case. Another commission rule prohibits defense counsel - including private counsel - from making statements about military commission cases or other matters relating to the commissions to the news media, unless they have received approval from the Appointing Authority (Secretary of Defense or designee) or the General Counsel of the Secretary of Defense. This rule imposes unwarranted censorship on counsel communications with the media.

Finally, the censorship is extended in another military commission rule that prohibits defense attorneys from ever making any public or private statements regarding any closed sessions of the proceedings.

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Amnesty International, United States of America: The threat of a bad example - Undermining international standards as "war on terror" detentions continue. August 2003 Report, AI Index: AMR 51/114/2003 at 21-28 at http://web.amnesty.org/library/index/ ENGAMR511142003?Open&of=ENG-USA (last visited: Oct. 25, 2003) (excerpts) (footnotes omitted).

A damaging unilateralism

States which demonstrate a high degree of respect for human rights are likeliest to contribute to international security and well-being.

United States Secretary of State Colin Powell, 31 March 2003

Children among the detainees

Despite their age, these are very, very dangerous people. They may be juveniles, but they're not on a little-league team.., they're on a major league team, and it's a terrorist team.

General Richard B. Myers, Chairman of the Joint Chiefs of Staff, 25 April 2003.

Article VII of the American Declaration of the Rights and Duties of Man holds that "all children have the right to special protection, care and aid." The Declaration is binding on the USA, as a member of the Organization of American States. Article 23 of the International Covenant on Civil and Political Rights states that the family "is entitled to protection by society and the State", and Article 24 states that all children shall be provided appropriate protection, according to their status as a minor, and free from any discrimination, including on the basis of nationality.

In April 2003 the US authorities revealed that children as young as 13 were among the foreign nationals held at Guantánamo. A released prisoner told Amnesty International in May 2003 that he recalled speaking to a 12-year-old boy detainee in Guantánamo. One child, Canadian national Omar Khadr, was already known to have been in US custody for almost a year, half of it in Guantánamo Bay, where he was transferred in October 2002. He was reported to have been 15 years old when he was captured in Afghanistan in July 2002. He, along with the other detainees, has been denied access to lawyers or relatives. Likewise, they have had no access to any court or tribunal in which to challenge the lawfulness of their detention or to have their status determined.

Amnesty International wrote to the US Government on 24 April 2003 calling for clarification on how many under-18-year-olds were being held in Guantánamo and for them to be granted immediate access to lawyers, families and to be charged and adjudicated in accordance with internationally-agreed principles of juvenile justice, or released. The organization pointed out that the definition of "child" according to most international legal standards is anyone under the age of 18. Amnesty International had received information that as early as May 2002, there was at least one 17-year-old being held in Camp Delta.

However, the Pentagon appears to define child detainees in this context as those who are under 16 years old. In a response to Amnesty International's letter, it stated that "there are a very small number of the detainees whom we have assessed to be under the age of 16. It is difficult to determine the exact age for the detainees, as birth records are not readily available". It ignored the question of 16 and 17-year-olds. For his part, the Secretary of Defence responded to the widespread concern about these young detainees by complaining of "this constant refrain of 'the juveniles', as though there's a hundred children in there these are not children". The Chairman of the Joint Chiefs of Staff suggested that "despite their age, these are very, very dangerous people they may be juveniles, but they're not on a little-league team anywhere, they're on a major league team, and it's a terrorist team."

The Pentagon has since repeated this disregard for the presumption of innocence in its standard response about under 16-year-olds held in the naval base: "Detainees at Guantánamo are dangerous people. Age does not necessarily diminish the threat potential of any detainee. Detainees remain in custody for as long as they are considered a threat to innocent men women and children around the world." This is the same government which in 2002 told the UN General Assembly Special Session on Children that the USA was "the global leader in child protection". The United States is also almost the only country left in the world that executes child offenders, accounting for three quarters of such internationally illegal executions known worldwide in the past five years.

Amnesty International's Canadian Section has urged the Canadian authorities to seek assurances from the USA that it will not seek the death penalty against Omar Khadr, who may be suspected of involvement in the shooting death of a US soldier in Afghanistan when he was 15 years old. If this was indeed Khadr's age at the time of the alleged offence, he would not be eligible for the death penalty under US constitutional law (which sets 16 as the minimum age), but as a foreign national held in Guantánamo he could yet fall under the judgment of a military commission and be afforded no such protection. US officials have reportedly refused to rule out the possibility that the death penalty may be sought against Omar Khadr. This would not only violate international human rights and humanitarian law banning the use of the death penalty against anyone for crimes committed when they were under 18, but also contravene the international prohibition on discrimination on the basis of national origin. No child with US nationality, accused of a similar crime committed when under the age of 16, would be eligible for trial by military commission or the death penalty.

The detention and interrogation of unrepresented children in Guantánamo, as well as contravening international law and standards that apply to both adults and children, violate principles reflecting a broad international consensus that the vulnerabilities of under-18-year-olds require special protection. For example, Article 37 of the Convention on the Rights of the Child (CRC), as well as prohibiting the use of torture or the death penalty against children, states that "the arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a last resort and for the shortest appropriate period of time". Article 40 of the CRC states that "every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."

The USA is not one of the 192 countries to have ratified the CRC, although it is a signatory and therefore obliged not to do anything that would undermine the object and purpose of the treaty pending its decision on whether to ratify it. The USA has ratified the Optional Protocol to the CRC on the involvement of children in armed conflict. According to Article 6(3), if the children in Guantánamo are being held because they participated in the armed conflict in Afghanistan, as the Pentagon has suggested, the USA has a treaty obligation to provide them with "all appropriate assistance for their physical and psychological recovery and their social reintegration". Detaining children in prolonged military custody in Guantánamo Bay cannot meet this obligation.

The need for judicial review

What kind of justice is that? To keep a young innocent person for 13 months, to pick someone up off the street and jail him without proof, without a proper investigation. Is that the law they have?

Sayed Abassin, former Guantánamo detainee

Sayed Abassin spent more than a year in US custody without charge or trial, first in Afghanistan and then in Guantánamo Bay, apparently for the sole reason that on a day in April 2002, he was in the wrong place at the wrong time.

This 28-year-old Afghan taxi driver had been en route from Kabul to Khost in April 2002. In Gardez his taxi had been stopped at a checkpoint by men who said that one of his passengers was the cousin of a regional power holder. In May 2003, Sayed Abassin recalled to Amnesty International how he himself had been arrested despite explaining that he was just the driver and did not know his passengers. He was taken to Gardez police station, where he says he was beaten, before being handed over to the custody of the US military. He was briefly questioned and then flown by helicopter to Bagram Air Base. His father made inquiries, but has informed Amnesty International that he was told nothing by the US authorities other than that his son had been taken to Bagram. There Sayed Abassin says he was held in handcuffs and shackles for the first week, kept in 24-hour lighting and woken by guards when trying to sleep, interrogated six or seven times, not given enough food, not allowed to talk to or look at other detainees, and forced to stand or kneel for hours. He also recalled his transfer to the US base in Kandahar roughly handled, blindfolded, with his ears covered, a black bag over his head and taped around his neck, his hands and legs tied. He said that detainees at Kandahar were not allowed to look at the soldiers faces. If they did look at their face, they were made to kneel for one hour. If they looked twice, they were made to kneel for two hours. He says that he was interrogated five or six times in Kandahar.

During all this time in US custody in Afghanistan, Sayed Abassin had no access to a lawyer, to a court of law, or to a "competent tribunal" as envisaged by the Third Geneva Convention. Perhaps if he had, his release would have been ordered. Instead he was transferred to Guantánamo Bay, where the denial of any legal process continued for the next year. He told Amnesty International that he had been interrogated 10 or more times in the first few weeks after his arrival in Camp Delta, and was then held for another 10 months without any interrogations before being released.

Sayed Abassin was released from Guantánamo Bay in April 2003 and brought back to Afghanistan. He was made to sign an agreement not to have any involvement with the Taleban or al-Qa'ida or to do anything that would harm the USA, despite the apparent absence of any evidence that he ever had any such involvement. Acquaintances of Sayed Abassin in Kabul said after his return to Afghanistan: "He's just a simple taxi driver at the wrong place at the wrong timeTaxi drivers shouldn't be taken to Guantánamo Bay, they can be questioned here, or through the Afghan government. You don't take him prisoner and take him away for a year. He couldn't support his family and now he needs money. The Americans should compensate him for everything he lost."

The US government maintain that the so-called "enemy combatants" it is holding in Guantánamo Bay and elsewhere are not entitled to have access to court or counsel. It states that "at the time of capture, they were bearing arms against the United States or otherwise acting in support of hostile armed forced [sic] engaged in an ongoing armed conflict". How did Sayed Abassin fall into this category? How many more like him are in Guantánamo? Sayed Abassin himself states that there is at least one more. His best friend, Wazir Mohammad, also a taxi driver, aged around 30, was arrested in Gardez after he went to the checkpoint to inquire as to Abassin's whereabouts. He, too, was arrested by the Afghan checkpoint guards, handed over to US custody, and subsequently shipped to Camp Delta, where he remains more than a year later, uncharged, untried, and unrepresented. His brother, Taj Mohammad, maintains that his brother was arbitrarily detained. In July 2003 in Kabul, he told Amnesty International: "My brother is innocent, he didn't commit any crime. Even if they cut off my head, I will still say that my brother is innocent, because he is innocent". He asked Amnesty International to: "Please raise my voice to the world". . . .

Safeguards are essential. Secrecy must be challenged. The US Government's refusal to allow any Guantánamo detainee to come before any court or tribunal, in addition to the secrecy surrounding the detentions the exact numbers, names, nationalities, and circumstances of arrest, have not been made public by the authorities have set the USA on a slippery slope to promoting a world in which arbitrary unchallengeable detention becomes acceptable. A US federal court recently noted that "there exists a clear and universally recognized norm prohibiting arbitrary arrest and detention. This prohibition is codified in every major comprehensive human rights instrument and is reflected in at least 119 national constitutions." The US administration's current actions are undermining this norm.

The need for judicial review of the detentions is made even clearer by the fact that not all of the detainees who have ended up in Guantánamo Bay were taken into custody in the context of the war in Afghanistan. Such individuals include two men transferred to Guantánamo in early 2003 via Bagram from Gambia, and six Algerian men unlawfully seized by the USA in Bosnia-Herzegovina in January 2002 and transferred to Guantánamo Bay (see further below). Perhaps the US authorities suspect them and others held in Camp Delta of serious crimes. In which case they should be charged and brought to trial within a reasonable time, in accordance with international fair trial standards and without resort to the death penalty. Otherwise they should be released. Those detained as combatants in the context of the international conflict in Afghanistan should be voluntarily repatriated, as required under the Geneva Conventions, unless they are to be charged with criminal offences or would face serious human rights abuses if returned to their country.

As early as March 2002, a deputy commander in the Guantánamo facility said that some of the detainees were "victims of circumstance" and probably innocent. Other reports indicate that one in 10 of the detainees were transferred to Cuba despite having already been deemed to be of no intelligence value. The releases that have occurred so far would appear to confirm this. Around 60-70 detainees believed to be mainly nationals of Afghanistan and Pakistan, with a few Saudi nationals are believed to have been released from Guantánamo, including a small number who have been transferred to custody elsewhere. Those released include an Afghan man so mentally ill that he was considered of no value to the US authorities. They include the elderly. One Afghan man released in October 2002, said to be in his 70s, recalled being tied up and blindfolded by US forces in Afghanistan, and of hours-long interrogations in Guantánamo Bay. He complained: "I don't know why the Americans arrested me. It told them I was innocent. I'm just an old man". The military insisted that he and the others released with him had posed a threat to US security at the time of their detention. It has provided no evidence to back up this assertion.

In July 2002, the Inter-American Commission on Human Rights (IACHR) reiterated its request that the US Government "take the urgent measures necessary to have the legal status of the detainees at Guantánamo Bay determined by a competent tribunal", adding that "it is not sufficient for a detaining power to simply assert its view as to the status of a detainee to the exclusion of any proper or effectual procedure for verifying that status". The US Government ignored this, despite claiming to be a government that is a "very strong" supporter of the IACHR, and one which is looking for "every opportunity to advance human rights and to work with the Commission".

In December 2002, the UN Working Group on Arbitrary Detention noted that where prisoner of war status is not recognized by a competent tribunal, "the situation of detainees would be governed by the relevant provisions of the [International Covenant on Civil and Political Rights] and in particular by articles 9 and 14 thereof, the first of which guarantees that the lawfulness of a detention shall be reviewed by a competent court, and the second of which guarantees the right to a fair trial". The US Government has rejected this.

Article 9(4) of the International Covenant on Civil and Political Rights (ICCPR) states: "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful". The Human Rights Committee has stressed that this "important guarantee... applies to all persons deprived of their liberty by arrest or detention". Indeed, it has stated that this right is non-derogable, even in states of emergency. Article 7(6) of the American Convention on Human Rights (ACHR) provides the same right. States are not allowed to suspend this right even in exceptional cases such as a state of emergency. The USA has signed the ACHR, thereby binding itself under international law not to undermine the object and purpose of the treaty pending a decision on whether to ratify it.

The Human Rights Committee has stated that even if so-called preventive detention is used for reasons of public security, it must be controlled by the provisions of Article 9 of the ICCPR, and stressed that those who have been arbitrarily arrested have the right to compensation. Article 9(5) requires that "anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation".

On 27 February 2002, Secretary of Defence Rumsfeld said: "If we find that someone's an innocent and shouldn't have been brought here, why, they would be released." It took more than a year from that statement for 18 Afghan nationals to be released uncharged or untried from Camp Delta and flown back to Afghanistan. They have maintained their innocence and expressed their anger at being held for a year in such circumstances. One of them, Sayed Abbasin, told Amnesty International: "I feel pity for the Geneva Conventions and other conventions. I was held for one year, where were those laws then?" adding "there were no human rights for me in that year".

In a statement to the UN Commission on Human Rights on 18 March 2003, the President of the International Committee of the Red Cross, Dr Jakob Kellenberger, said: "Human rights law, refugee law and international humanitarian law share the common objective of protecting human life, safety and dignity. These bodies of law and their supervisory mechanisms form an interlocking web of guarantees for individuals in particular in times of emergency when they are most vulnerable. The development of these bodies of law over the past half century is a remarkable humanitarian achievement. A comprehensive system has been established where no state is above the law and no person falls outside the protection of the law. If correctly and fully applied, international law remains one of the strongest tools the international community has at its disposal to maintain international order and stability and to ensure the safety and dignity of all persons".

On 27 May 2003, Dr Kellenberger met with the US Secretary of State, the National Security Adviser, the Counsel to the President and the Under-Secretary of Defence for Policy. The ICRC President asked the US authorities "to institute due legal process and to make significant changes for the more than 600 internees" held in Guantánamo Bay. The US authorities have effectively thrown the Guantánamo detainees and those held elsewhere into a legal black hole. In so doing they have begun to unpick the "interlocking web" of international protections.

In his interview for Amnesty International in Afghanistan in August 2003, former Guantánamo detainee Muhammad Naim Farooq stated his belief that there were many innocent "poor" people held in the naval base. He suggested that the international community should stand up to the USA and end this "injustice". The brother of current Guantánamo detainee Wazir Mohammad suggested to Amnesty International in July 2003 that the USA's treatment of the prisoners "makes the reputation of the US bad amongst the people of Afghanistan". He added: "My message to Mister Bush is that he should take the cases of these people seriously and obtain the release of those who are really innocent".

Out of the reach of the US courts

The prospect of the Guantánamo captives being detained indefinitely without access to counsel, without formal notice of charges, and without trial is deeply troubling.

US District Court, May 2003

Attempts have been made by lawyers, acting on behalf of relatives of the prisoners, to obtain justice for the Guantánamo detainees in the US courts. Relying on half-century-old US Supreme Court precedent, however, the executive has successfully kept the prisoners out of the reach of the judiciary. A recent attempt to change this failed on 13 May 2003, when a District Court judge ruled that precedent compelled the finding that the detainees did not have the right to challenge their confinement in US federal court. The case had been brought by the brother of Libyan national Falen Gherebi who was transferred to Guantánamo from Afghanistan in January 2002 and remains in Camp Delta. Even the federal judge who ruled in favour of the government described the plight of the detainees as "deeply troubling" and their treatment as "not consistent with some of the most basic values our legal system has long embodied". Judge Howard Matz expressed the hope that a higher court might find a "principled way" to overcome the precedent and provide the remedy that had eluded him.

International law applies to persons subject to the jurisdiction of a state party even abroad. Article 2(1) of the International Covenant on Civil and Political Rights states: "Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind", including on the basis of national origin. The Human Rights Committee has emphasised that States parties have an obligation to ensure that this applies to "all individuals under their jurisdiction." The Committee has made it clear that the ICCPR applies to places outside the territory of a state party under its control. Under article 27 of the Vienna Convention on the Law of Treaties, a country "may not invoke the provisions of its internal law as justification for its failure to perform a treaty".

The US courts have based their decisions in favour of the government and against the Guantánamo detainees on a 1950 US Supreme Court ruling, Johnson v Eisentrager. In that decision, involving German nationals tried by military commission for assisting Japanese forces against the USA in 1945, the Supreme Court held that "non-resident enemy aliens", captured and imprisoned abroad, have no access to, and no right to habeas corpus in, any US court. The Eisentrager majority emphasised that foreign nationals who, like the prisoners in that case, had not been at any relevant time "within any territory over which the United States is sovereign", were not protected by the US Constitution. The USA has occupied the Guantánamo Bay Naval Base under a lease agreement made with Cuba in 1903 and modified in 1934. In the case of the current detainees, the courts have rejected the argument that, even if Cuba holds ultimate sovereignty over the Naval Base, the USA holds de facto sovereignty over it by exercising complete jurisdiction and control. The federal judge who reluctantly ruled for the government in May 2003, acknowledged that the distinction between sovereign territory and complete jurisdiction and control may "appear technical (or at least elusive)", but said that he was unable to disregard the precedent set by the Eisentrager case.

In the words of the Court of Appeal in the United Kingdom, asked to consider the detention of UK national Feroz Abbasi, one of the Guantánamo detainees: "What appears to us to be objectionable is that Mr Abbasi should be subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal". It is deeply ironic that the USA is violating fundamental rights on Cuban soil, and relying on the fact that it is on Cuban soil to keep the US courts from examining its conduct. In its most recent criticism of the human rights situation in Cuba, the US State Department commented that the Cuban Constitution "states that all legally recognized civil liberties can be denied to anyone who actively opposes the decision of the Cuban people to build socialism. The authorities routinely invoked this sweeping authority to deny due process to those detained on purported state security grounds." In the name of national security, the US Government is now denying due process to hundreds of detainees in Guantánamo Bay and elsewhere.

Even half a century ago, the Eisentrager ruling brought forth an impassioned dissent from three Supreme Court Justices: "The Court is fashioning wholly indefensible doctrine if it permits the executive branch, by deciding where its prisoners will be tried and imprisoned, to deprive all federal courts of their power to protect against a federal executive's illegal incarcerations. If the opinion thus means, and it apparently does, that these petitioners are deprived of the privilege of habeas corpus solely because they were convicted and imprisoned overseas, the Court is adopting a broad and dangerous principle."

Fifty-three years later, the UN Special Rapporteur on the independence of judges and lawyers echoed this dissent when he warned of the "dangerous precedent" that could be set by the federal court's decision on the Guantánamo detainees. The US Government, the Special Rapporteur said, "will be seen as systematically evading application of domestic and international law so as to deny these suspects their legal rights". He called on the USA to comply with international human rights and humanitarian law, adding that "the war on terrorism cannot possibly be won by the denial of legal rights, including fundamental principles of due process of those merely suspected of terrorism".

On 8 May 2003, the UN Working Group on Arbitrary Detention, in the case of three French nationals Mourad Benchellali, Khaled Ben Mustafa and Nizar Sassi and Spanish national Hamed Aderrahaman Ahmed, all held in Guantánamo, said that it "cannot but conclude that no legal basis justifies the deprivation of liberty" of the four men. It stated that their detention was "arbitrary, being in contravention of Article 9 of the Universal Declaration of Human Rights and Article 9 of the International Covenant on Civil and Political Rights of which the United States of America is a Party". The Working Group urged the US authorities to remedy the situation and bring it into conformity with international law.

One of the current US Supreme Court Justices, Sandra Day O'Connor, stated in 2000: "Our precedents demonstrate an attempt to strike a balance between the requirements of international law and respect for the judgment of the political branches in matters of foreign policy. It is obviously a delicate balance, and one that continues to be refined in the cases that require us to apply these doctrines". Amnesty International believes that this balance has been tipped too far in favour of executive power in relation to the Guantánamo detainees. . . .

The Supreme Court has agreed to hear cases relating to the status of detainees at Guantánamo Bay³⁸ and the detention without counsel or due process of U.S. citizens who have been declared “enemy aliens.�?⁴⁰

Following grant of certiorari in those cases the U.S. Government announced that it would release some of the detainees from Guantánamo, for example, several from the United Kingdom. Previous releases had been announced, for example, of the detainees who were under the age of 17. The U.S. Government also allowed visits by counsel to the U.S. citizen detainees being held inside the United States, but the interviews with counsel would be recorded by the authorities.

* * * * * * * * * *

POWs OR UNLAWFUL COMBATANTS?

September 11^th and its Aftermath

Crimes of War Project, http://www.crimesofwar.org (last visited: Nov. 20, 2003):

January 2002

Introduction

When Taliban and Al Qaeda detainees at Camp X-ray in Guantánamo Bay were pictured kneeling and shackled in chain-link cages in January, European politicians and human rights activists angrily alleged that the United States was in clear violation of the Geneva Conventions, which govern how a detaining power must treat prisoners of war. The Third Geneva Convention states that POWs must be spared "outrages upon personal dignity," "humiliating and degrading treatment," as well as "insults and public curiosity," - all of which was violated in the above photograph released by the US Department of Defense.

The Bush Administration promptly announced that it did not consider the captives to be POWs, but rather "unlawful combatants." However, denying the detainees POW-status does not change the way the United States is legally obligated to treat them. Both the Geneva Conventions and human rights law mandate that that Washington treat detainees humanely regardless of whether or not they are considered to be POWs. However, by declaring that the detainees are "unlawful combatants," the Bush Administration is effectively saying that the Al-Qaeda and Taliban detainees are not entitled to the protections specified under the Geneva Conventions which provide them with immunity from prosecution for lawful acts of war.

That announcement sparked further outrage and allegations that the United States was flouting international law. In February, the White House reaffirmed its position that it did not consider the detainees to be POWs. However, the Administration said that it would treat the detainees in accordance to the standards set forth by the Geneva Conventions, which would entitle the detainees to visits from the International Committee of the Red Cross, medical care, the right to practice their religion, the opportunity to communicate with their families as well as other amenities.

To shed light on whether or not the Al Qaeda and Taliban detainees in Guantánamo qualify for POW status, the Crimes of War Project interviewed a number of legal experts. Most of our experts disagreed with Bush Administration. They all cited Article 4 of the Third Geneva Convention, which defines prisoners of war as "Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces." According to the Convention, members of a regular army are automatically entitled to POW status, whereas members of militias or volunteer corps must meet the following four criteria:

I. Having a chain of command

II. Wearing a uniform or some sort fixed or distinctive sign

III. Carrying their arms openly

IV. Conducting their operations in accordance with the laws and customs of war

Most of our experts said they believed that the Taliban fell under the first category – that of being the regular army of Afghanistan – and are therefore entitled to POW status.

The Bush Administration, however, claims that the Taliban fall under the category of irregular forces, and must therefore be subject to meeting the four criteria.

"The Administration is applying the wrong part of the Conventions. They have invoked the provisions for irregular combatants not under Article 4-1, but under Article 4-2. They are treating them as though they are guerrillas or partisans who were fighting for a party to the conflict. And that’s wrong in my view," said Robert Goldman, professor of law and co-director of the Center for Human Rights and Humanitarian Law at the Washington College of Law, American University.

But even according to the criteria specified for irregular forces, most of our experts believe the Taliban detainees, and possibly Al Qaeda as well, although there is less agreement on this point, would be entitled to POW status. They cited Article 5 of the Third Geneva Convention, which says that if there is any doubt as to whether or not the detainees meet the conditions, then they should be granted POW status until a "competent tribunal" determines otherwise.

"We don’t have the facts. We don’t know to what extent these people had a proper command structure, wore some sort of distinguishing features and complied with the laws of armed conflict. We just don’t know," said APV Rogers, OBE, a retired major general in the British Army and recognized expert on the laws of war.

Curtis Doebbler, Professor of Human Rights Law at American University in Cairo, who served as an advisor to the Taliban government on the laws of war and believes that the Taliban, unlike Al Qaeda, do meet the criteria enumerated in Article 4. But he agreed that we do not have all of the facts. "The first thing is to determine the status of the detainees, and until a competent tribunal declares that they are not POWs, then they are. After that, you can have legal wrangling over the criteria in the Geneva Conventions," he said.

The Bush Administration, by contrast, is claiming that there is no doubt. In its view, neither Al Qaeda nor the Taliban are eligible for POW status because they did not wear uniforms or otherwise "distinguish themselves from the civilian population of Afghanistan" or "conduct their operations in accordance with the laws and customs of war"—an argument that is disputed by the majority of our experts.

Most of our experts believe that the United States had little to gain by denying the detainees POW status. All disagreed with assertions by the media that giving the detainees POW status would prohibit the United States from interrogating the Al Qaeda and Taliban soldiers. They acknowledged that POWs are only obliged to give their name, rank, serial number and date of birth, but they said nothing in the Convention precludes the detaining power from asking for more.

They also disagreed with assertions that granting the detainees POW status would mean that the United States would have to release them upon the cessation of hostilities. The Geneva Conventions state that POWs must be released unless they are charged with war crimes. Nothing in the Conventions would preclude Washington from charging them and keeping them in custody until they could face a judicial process.

Some of our experts said they feared the Administration’s decision could come back to haunt US soldiers should they ever be captured by a foreign enemy, particularly special forces who usually don’t wear uniforms. "I think we may have set a bad precedent. The drawback is that we have given the other side some ammunition when they capture our people," said H.Wayne Elliott, a retired US Lieutenant colonel and former chief of the international law division at the US Army’s Judge Advocate General’s School.

However, Michael Noone, a professor of international and comparative law at Catholic University of America and a former Judge Advocate in the US Air Force, disagreed. "The kinds of people that we are liable to be confronting in these kinds of wars are not likely to follow the Conventions anyway. It’s arbitrary and capricious," he said.

Robert Kogod Goldman

Professor, Washington College of Law

American University

January 2002

I believe that the Administration misread Article 4 of the Third Convention with respect to the Taliban. I think that under any fair assessment, the Taliban constitute the armed forces of a party to a conflict. Even our own military manuals, and no one is citing them, but if you take a look at Air Force Law of War Manual, it says "upon capture, any person who does not appear to be entitled to prisoner of war status but has committed a belligerent act is required to be treated as a prisoner of war until his status is properly determined."

The Administration is applying the wrong part of the Conventions. They have invoked the provisions for irregular combatants not under Article 4-1, but under Article 4-2. They are treating them as though they are guerrillas or partisans who were fighting for a party to the conflict. And that’s wrong in my view. The Taliban are the armed forces of the state. As far as I’m concerned, this belies the Administration’s other statements that the Taliban are organized, they are dangerous, they have tanks, etc. I think the Administration is definitely subverting the object and intent of the Convention. These people are the armed forces to a conflict and they should be judged against the standards in Article 4-1. They have a command structure. They were fighting. The United States clearly knew who to target which means they were distinguishable. And the fact that members of regular armed forces may commit violations of the laws of war or do not always comply with those does not in effect make them non-lawful combatants. It just means that if they have committed a war crime they enjoy no immunity from prosecution for that war crime. They don’t forfeit their status as lawful combatants entitled to POW status because they may have committed a war crime.

There is a lot of misinformation coming out of the press. For example, you can interrogate a prisoner of war for as long as you want. You can’t torture them, you can’t beat them, but then you can’t do that to an unprivileged combatant either. The Administration has done something very dangerous in stating that the Taliban are irregular combatants and don’t meet the standards of Article 4-2 and are unprivileged (combatants). In taking this stance, the Administration has virtually said that the Taliban’s resistance to US Forces who invaded their country, or that merely pointing a gun an American or shooting at an American troop would render them subject to a prosecution under US criminal law for murder or attempted murder. An unprivileged combatant is a person who without a privilege or license goes out and engages in hostilities without having a right to do it. This is one of the things people don’t understand. The essence of prisoner of war status is that lawful combatants authorized by a party to the conflict are entitled to POW status because they have a license to go out and kill and destroy the enemy. Upon capture, they are immune from prosecution for their lawful acts of war. They could only be tried for violations of the laws of war or other pre-capture offenses. If you are an unprivileged combatant however, you can be punished for your mere combatancy and each and every one of your hostile acts even if you complied with the laws of war.

I would make two distinctions between Al Qaeda members who are captured in third countries and those captured in Afghanistan. Those captured in the United States, the UK or elsewhere are essentially being treated as law enforcement matters and are being tried under domestic statutes and criminal law. If those Al Qaeda members would declare prisoner of war status, it would be denied because that attack is the work of private individuals. To make war, you have to be sanctioned by the state and this does not appear to be the case so therefore they will be treated as common criminals. I think the situation is different however with respect to those Al Qaeda members who effectively fought on the side of the Taliban once the United States undertook military action. And the reason that is different is that the Geneva Conventions are not conditioned on the causes of the conflict or the causes that the people espouse. It applies equally across the board. And in that case, I think the United States could have said, that the Geneva Convention applies to these particular Al Qaeda combat detainees but they were not regular members of the Taliban’s armed forces. They fall under Article 4-2, and our reading under Article 4-2, and the Administration would be right in my view, that they belong to an organization that openly and notoriously has as its goal targeting civilians. They have concealed their arms on other occasions. It would be very plausible if the Administration used that logic to deny Al Qaeda members POW status. Again, it is still arguable, and what I would have urged the Administration to do is go ahead and give them an Article 5 tribunal. Any Article 5 tribunal is going to deny them POW status. In point, I support the Administration’s determination on Al Qaeda, but I disagree with their reasons.

If the Administration had listened to the experts on this, they would have said, "Hey guys, this has real implications for us if we don’t give prisoner of war status. We risk nothing. We can find that Al Qaeda are unprivileged combatants and apply the convention to them. We’ll even give them an Article 5 tribunal."

In the case of the Taliban, whether we like them or not is irrelevant to the application of the Convention. And if they were involved in September 11 or other kinds of acts and if they constitute either violations of US law or international law, then we can still subject them to trial and still give them prisoner of war status. A good example is Noriega. Noriega was held as a prisoner of war. Nonetheless, he was tried on drug trafficking charges that did not come within the jurisdiction of either a military commission or a military tribunal and therefore he was tried for that offense in a US District Court, but he is held as a prisoner of war to this day.

By denying the detainees prisoner of war status, the US finds itself at variance with the International Committee of the Red Cross, with most experts, and with most of our European allies. But the real danger is that the kind of rhetoric that was used – the Geneva Conventions don’t’ apply to this kind of war and that we will selectively apply the Conventions – can open up problems for us down the line in military actions that we surely will be undertaking where people in effect will try to say the same thing about US special forces.

APV Rogers, OBE

Author, Law on the Battlefield, joint winner of the 1997 Paul Reuter Prize; Fellow, Lauterpacht Research Centre for International Law, University of Cambridge

January 2002

The answer to whether or not the detainees at Camp X-ray should be entitled to POW status is that one doesn’t know without more information. You really need to know what they were doing prior to their capture, and particularly at the time of their capture. And you need to know apart from that, what they were wearing, what sort of group they belonged to and questions of that kind.

The definition of prisoners of war is in Article 4 of the Third Geneva Convention, paragraph 2, which talks about militias, volunteer corps, and organized resistance movements. It lists the conditions that combatants have to comply with in order to be considered POWs – that of being commanded by a person responsible, having a fixed distinctive sign, carrying arms openly and complying with the laws and customs of war.

I suppose what the US government is saying is that these people weren’t in compliance with the terms of those conditions at the time of their capture. Washington’s argument is that this is not a case of doubt at all. It’s quite clear. These people are not in compliance with the prisoner-of-war status therefore they are not entitled to it. So you don’t even move on to Article 5, because Article 5 says that should any doubt arise as to whether a persons having committed a belligerent act, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present convention until such time of their status has been determine by a competent tribunal. They are saying, I suppose, that you don’t even need to go that far, because there is no doubt about these people’s status.

But really we don’t have the facts. We don’t know to what extent these people had a proper command structure, wore some sort of distinguishing features and complied with the laws of armed conflict. We just don’t know. If they had been captured and brought to the UK, they would be able to apply to the high court, and the high court would be able to inquire into their status and determined whether or not they were being lawfully held. I don’t know what the situation is in the United States, and it’s particularly complicated because they are at a US base where the federal court may not have jurisdiction. That makes it a bit more problematical.

I would make one point about the advantage of saying that they are not prisoners of war. I heard what Donald Rumsfled has said about that and I can see the force of his argument. As I understand it, he was saying that there are these rules that regular armed forces comply with, and because they comply with them, they are entitled to POW status. What’s the point of having these rules if people who don’t comply get the same protection?

The notion that you can’t interrogate prisoners of war is wrong. It’s standard practice, certainly within NATO to interrogate prisoners of war. But what you’re not allowed to do is torture them. But if you apply basic human rights standards, you can’t torture people or use inhumane or degrading treatment. So there is no advantage in that department.

The Geneva Conventions do say that prisoners of war must be released upon the cessation of hostilities. I get the impression that they are being interrogated about their Al Qaeda links – presumably information about the rest of the network – rather than about war crimes. But I would imagine that even if they are being tried for war crimes, at some state you have to charge them and begin the normal trial process. There may be some issue with repatriation. In recent years, the tendency has been to repatriate prisoners of war fairly quickly. It’s not been the case. After the Second World War it was sometimes years before prisoners of war returned. But of course that predated the 1949 Convention.

If you are treating them as prisoners of war, then all those rights to a fair trial are enshrined in the Geneva Conventions. But they are enshrined in human rights law too.

I can’t really see any benefits at all in saying that these people are not prisoners of war, except to uphold the rule of law. Basically, these people don’t comply with the law, and therefore they shouldn’t get he status that the law provides.

What one could say is that we don’t accept as a matter of law that these people are prisoners of war, but we will treat them de facto as prisoners of war and give them all the protection that the Geneva Conventions require and I think that is the line that the Red Cross would urge people to take. It seems quite sensible to me. I can’t see anything wrong with that, and you leave open what their real status is and that can be determined by a court at some later date.

Curtis Doebbler, Professor of Human Rights Law at American University in Cairo

January 2002

The detainees in Guantánamo are POWs. Some people say there is some ambiguity, but Article 4 of the Third Geneva Convention states that until a competent tribunal determines whether or not they are POWs, they are, prima facie, entitled to POW status. This means that they are POWs right now, and until a tribunal decides differently.

The detainees are combatants, which would make them POWs because they are members of an armed group that is under the command structure of the government, or other regular armed forces in Afghanistan. The United States claimed that these men were picked up in combat, in Afghanistan, which is evidence that they were indeed combatants.

The United States and Great Britain initially claimed that Al Qaeda and the Taliban were indistinguishable. Under international law, the Taliban was a government, and while it was not recognized by everyone, it de facto, met the legal criteria for a government because it controlled most of the territory of Afghanistan. If the US is arguing that Al Qaeda and the Taliban are one in the same, then they are automatically declaring that both the Taliban and Al Qaeda detainees are POWs.

It is necessary to determine the status of the detainees, and until a competent tribunal declares that they are not POWs, then they are POWs. After this determination is made you can have legal wrangling over the criteria in the Geneva Conventions. It is important to remember that the prisoners are entitled to respect of their human rights whether they are POWs or not. For example under the American Declaration of the Rights of Man and, I would also suggest, customary international law, they are entitled to a fair trial irrespective of whether or not they are POWs or war criminals. With that in mind, they have the right not to have their dignity affronted, to have access to legal counsel, and other such rights that one could argue have been violated.

There are consequences of declaring the detainees POWs. Doing so requires that they be repatriated after the war unless they are accused of war crimes. It appears that the ICRC thinks that the Taliban have not committed any major violations of humanitarian law. It is even likely that the Taliban respected the laws of war more than the US and its allies did.

If they are tried, you have got to find something to try them for, and I’m not sure the United States has enough evidence in order to do so. They have to have committed crimes that violate United States law, or crimes against humanity if they are to be tried in the United States. And if you’re going to try them, you have to provide due process, as spelled out both by the Geneva Conventions and under international human rights law.

A major point that every human rights group in the United States has missed is the relevance of general international law regarding the use of force to the human rights of detainees, or anyone else affected by the hostilities in Afghanistan. If the United States attacked Afghanistan illegally, then every action harming the basic rights of Afghans is a violation of international human rights law. We don’t even have to get to the application of humanitarian law. The United States is in violation of the most basic rights of all Afghans who have been seriously injured by the armed conflict. The lack of time given to this important point is especially surprising because it seems quite clear that the United States used force against Afghanistan in violation of Article 2(4) of the United Nations Charter and the Pact of Paris from 1928, and not in self-defense, which cannot be exercised in response to an attack by a non-state actor.

January 2002

H. Wayne Elliot

Lt. Col. (Ret.) U.S. Army

Former Chief, International Law Division

Judge Advocate’s General School, U.S. Army

It must be emphasized, right at the beginning of any discussion, that regardless of the technical status of these people, the United States military will continue to treat them humanely. Also, it should be recognized that no matter the status of an individual, that person can be prosecuted for violations of the law of war.

I have not seen a well-stated rationale for not declaring them prisoners of war. It is possible that the problem started right after the attacks of 11 September. An early issue was what crimes had been committed by the people that actually hijacked the planes and flew them into the buildings. One of those crimes was that of being an "unlawful combatant." This offense is along the lines of deliberately endangering the civilian population by blending in with the civilian population. If you are not in a uniform, you endanger all the true civilians because the other side can't distinguish one from the other. That term-- "unlawful combatants"-- was being used in connection with possible future prosecutions of members of a criminal conspiracy known as Al Qaeda.

Once the United States got involved in the ground war in Afghanistan and actually took some people into custody, a decision had to be made as to what to do with the captives. But the term unlawful combatant was still being used in a criminal law sense. The question of status under the Geneva Conventions is a different issue. For purposes of the Geneva Conventions, the proper terms are "protected persons," i.e., captives who enjoy the protections of the Convention, or "unprivileged belligerents," i.e., captives who do not enjoy the privileges of the Geneva POW Convention.

Today, we have members of Al Qaeda in custody, along with members of the Taliban army. So what are these people? The answer is found in Article 4 of the Geneva POW Convention.

The requirements for prisoner of war status are set out in Article 4 of the Convention. The first paragraph says that certain people will be prisoners of war. This group includes members of the regular army as well as "members of militias and volunteer corps forming part of such armed forces." If Al Qaeda fits within the first paragraph, they are prisoners of war. Of course, the implication is that all these people will have a uniform, and a command structure and everything else that goes with being a soldier. But there is no specific requirement for any of this in the first paragraph. So members of Al Qaeda might well be entitled to POW status. It all depends on how Al Qaeda was, or is, structured. What was the relationship between Al Qaeda and the Taliban Army, the regular army of the State of Afghanistan? If Al Qaeda falls within the terms of paragraph 4A(1), its members should be held as prisoners of war.

Now, to the second paragraph. Here we find coverage for "members of other militias and members of other volunteer groups." But to gain coverage four requirements must be met. These are basically: 1) a command structure; 2) a fixed and recognizable sign; 3) carrying arms openly; and 4) following the laws of war.

What needs to be determined initially is the relationship between Al Qaeda and the regular Afghan army. If Al Qaeda is not really part of the Taliban army, but instead an "other" militia or volunteer corps, under 4A(2), then its members must meet the four additional requirements to be considered POWs. [Of course, none of this has anything to do with our ability to prosecute these people for violations of the law of war. They can be accused of and prosecuted for war crimes regardless of their status under the Geneva Convention.]

Now, let's look at the four requirements under 4A(2), specifically as regards the hijackers. To an extent the United States has provided them the first element, that of having a commander, because we put out charts, or wanted posters, with Osama bin Laden at the top, and a second tier which we described as his lieutenants. We have made the argument that he is in charge of these people and a video tape has been shown of him talking about his subordinates who carried out the attacks at his direction. There is at least a semblance of a chain of command there.

How about the recognizable sign? Tapes have been played on TV of the "training camps" run by Al Qaeda. The people training in those camps were in uniforms which were not too dissimilar from what the US forces wear. The uniform requirement doesn't always apply. A soldier is allowed to infiltrate the other side's lines, and be in their uniform or civilian clothes while doing so. What cannot be done is fight in the other side's uniform or, arguably, in civilian clothes. Of course, the actual hijackers were in civilian clothes at least when they got on the plane. Nobody knows whether or not they put on a red bandana or something like that before they actually stood up with their knives.

Obviously they carried their weapons openly at that point, because we know that they did have knives and used these as weapons to take the hostages.The last requirement, that of complying with the laws of war is a problem for Al Qaeda. The question is whether or not Al Qaeda-- as an institution-- has complied with the laws of war. If, as has been demonstrated, the hijacking mission was run from the top by Osama bin Laden and he ordered these people to fly the planes into civilian targets, then that hardly is complying with the laws of war. But, even if Bin Laden had no intention of complying with the law of war, that does not automatically mean that every member of Al Qaeda can be denied POW status unless, of course, that individual can be shown to have participated in the unlawful decision making process. And that is a matter best left to a judicial tribunal.

None of the three main arguments raised against granting POW status has great merit. One is that if they are prisoners of war, interrogation must cease. That's ridiculous. It does not have to stop. If they are prisoners of war, they have to give 4 items of information. That's all they have to give, but we can ask them for more information. We can ask indefinitely for more. We obviously can and will continue to interrogate them as long as we think they have some information that we need to get at. Interestingly, according to the Conventions, if the captive does not have those 4 items of information, he loses any entitlement to POW status. If they don't have it anyway, exactly what have they lost?

The second argument is that if they are prisoners of war, they have to be sent back home at the conclusion of hostilities. Well, that's true. But there is no guidance on how you decide when the hostilities are over. So, if we look at a group like Al Qaeda that uses terrorism as their MO, then as long as there is the threat of more terrorist attacks, these people simply do not go home. We hold them indefinitely because we still have an on-going war against terrorism.

The third argument is that if they are prisoners of war, we can't try them before a military commission. That is not true. An American soldier can be tried before a military commission. Our policy is to try our soldiers accused of acts which violate the law of war in a court-martial, but that's all it is - a policy - not a matter of law. The military commission would have to meet the requirements of the Geneva Conventions, but the difference between a military commission and a court-martial is that a court-martial must meet all of the requirements of the US Constitution for a trial and that could include all of the evidentiary rules, while a military commission does not.

Contrary to what some have said, even in a military tribunal, there is an appeal, through the habeas process. The accused would have to bring a writ of habeas corpus in a federal court arguing that the military court had no jurisdiction in the first place. The issue of jurisdiction could be reviewed by the federal court regardless of what the President's Executive Order says. So there is an appeal, though not a regular criminal appeal. That same rule would apply to an American soldier who got caught up in a military commission.

We tell our soldiers on the ground that everybody who comes into their custody will be treated as a prisoner of war. We could easily set a bad precedent concerning these captives. The drawback is that we have given the other side some ammunition when they capture our people. Of course the argument is that we always fight in uniform, so therefore we are entitled to the privileges accorded POWs. Yet, on the very day these issues were being publicly discussed, the special forces in Afghanistan put on NY Yankee baseball hats before engaging in a mission. We could say that this was at least part of a uniform. But what if the other side does not agree? Baseball hats can be bought anywhere, including Kabul. So we don't always fight in uniform. What happens if it's the middle of the night and our soldiers are asleep in the barracks and are suddenly attacked? They run out and fight in their underwear and are captured. Are we going accept an argument that they are not prisoners of war because they didn't put on their uniforms?

I am positive that the United States is not violating the spirit of the Geneva Conventions. There are some technical requirements that we say we are not going to meet. At this point Guantánamo is little more than a collection point. It is not really a permanent camp. The captives are there because it is safer for them and for us.

The Administration has said that they are not prisoners of war but we are going to treat them as if they are. The problem comes because we are then picking and choosing which provisions of the Geneva Conventions we want to follow. We are not going to set up prisoner accounts for them and pay them or do some of the other housekeeping things. One argument against this has been that it is the US taxpayer who pays the costs of such compliance. We have frozen all of the Al Qaeda bank accounts that we can find and these accounts can be tapped to pay these costs. Afghanistan, as the country in whose forces they were serving when captured, would normally pay the costs of holding them. But, there is no prohibition on using Al Qaeda assets to do the same thing.

But all of those things like paying them money and setting up a canteen, and the right to have people ship in books or musical instruments or scientific instruments are really geared to permanent camps. The idea is their own country or the Red Cross might be able to give them these things to set up their own in-camp education. Security is always a valid reason for deviating from these requirements. But, to deny these privileges because of the negligible costs involved has very little appeal.

We know that some of these captives are members of the Taliban military forces. One of them is, according to the media, the chief of staff. What can he be if not a prisoner of war? The cleanest way to handle these people would have been to declare them all prisoners of war, hold Article 5 tribunals, and cull out all of those who do not meet the requirements.

The people being held there may well include individuals who were involved in the conspiracy to attack the World Trade Center and the Pentagon and other improper targets which may yet be attacked. Of course, they can be prosecuted for these pre-capture offenses. But what if they commit post-capture offenses? If they are POWs, then post capture offenses can be prosecuted in a court-martial. But if they are not POWs and commit an assault and battery on one of the guards in Guantánamo, what trial forum is available? They might be prosecuted under a federal statute. That would mean bringing them into the United States and trying them in civilian court, presuming all the usual jurisdictional problems could be solved. This could place extremely dangerous people in our prisons. Our law and prior practice envisions them being subject to the Uniform Code of Military Justice. But if they are not officially and formally POWs, they are not subject to the Code and can not be tried for any post-capture offense in a court-martial.

If they are not prisoners of war and we are holding them, then they must be civilians, and they would fall under Civilians Convention. But that is another issue.

January 2002

Michael Noone,

Professor of International and Comparative Law at Catholic University of America, former judge advocate in the U.S. Air Force

The Administration does not believe that the detainees at Camp X-ray qualify for POW status under the Geneva Conventions, however, it has been said that the detainees will continue to be treated humanely following the principles of the Geneva Conventions. The Executive Branch is making a distinction between the two classes of detainees being held as Taliban and Al Qaeda, and then offers a rationale for why neither category satisfies Geneva Convention [POW] criteria. As to the Taliban, President Bush says that although they are members of an army that belongs to a state, the reason that they are not being granted POW status is that they don’t satisfy all four fundamental criteria of Article 4 of the Third Geneva Convention. The Administration says that those people who are identified as Taliban detainees will be treated humanely but don’t qualify for POW treatment. Those detainees who have been identified as Al Qaeda simply don’t qualify for POW treatment because they don’t satisfy any of the conditions of the Geneva Conventions.

I agree with the Administration. Some people saw Article 5 of the Convention which calls for a battlefield screening to see whether or not they qualify. Some humanitarian folks complained that the United States had never undertaken that screening. The US is saying that we never undertook the screening because there isn’t any doubt. I don’t have enough facts to disagree. Nobody has ever said that any of these Taliban folks who were captured satisfied Geneva Convention requirements. We’ve never seen anybody in a uniform, much less meeting all four conditions. There is no reason to doubt the White House announcement unless you’re just profoundly suspicious of the Executive Branch.

I’ve never heard anybody advance any evidence that the detainees met all four requirements. Presumably they had a chain of command. With the Taliban, it’s possible that they satisfied some of the conditions. But I’ve never seen any evidence that they satisfy all four characteristics. We’ve never seen a picture of them showing some identifying characteristics, which segregated them from the community. Maybe it’s possible, but literally we haven’t seen any evidence of that.

In the Teheran rescue mission the US Special Forces were not wearing uniforms, but they were wearing something that distinguished them enough so that if they got involved in combat, they could claim Geneva Convention protection.

There are going to be people who think that although Taliban prisoners don’t meet Geneva Convention qualifications they, as a matter of simple humanitarian policy, should be given those protections. That’s a legitimate point of view, but from a legalistic point of view, it doesn’t look like the Taliban satisfy the conventions, even though they belong to an army. Al Qaeda has a double problem because they don’t belong to an army.

The Taliban may well have abided by the laws of war and they may very well have had a hierarchal structure. Some of them may have carried their arms openly but according to the letter of the law, apparently they did not satisfy that fourth characteristic of some identifying sign, at least I think that is the way the Executive Branch has justified their behavior and there is no evidence out there that seems to suggest otherwise.

By not according the detainees with POW status, the United States can engage in some nice little legalistic hair-splitting. It’s saying we adhere to the principles, we’re not going to torture them, we’re going to feed them and all of those good things, but we don’t have to, for example, give them quarters equivalent to that of the detaining power. The advantage to not granting the detainees POW status is [dual]. The first, I’m guessing, is that if they are POWs, once the hostilities are over, they must be released.

The second advantage, arguably, is that if they were tried for offenses, then the Geneva Conventions would suggest that they would have to be tried by the same rules and processes the detaining power would use with its own soldiers. If they are not POWs, you can use military tribunals and you don’t have to worry about a court-martial. Obviously, they can’t be kept indefinitely. We can’t hold people forever, but we don’t have to instantaneously release them when hostilities are over.

I think the only disadvantage to not granting the detainees POW status is that public opinion doesn’t accept the Administration’s rationale. As for the argument that denying the detainees POW status might cause trouble for US soldiers should they be captured, there is no reason to think that US soldiers who qualify are going to automatically be accorded POW status. The Army major who was shot down in the Gulf War definitely did not get treated according to the Geneva Conventions. She was very severely abused by her captors and she was in uniform. The kinds of people that we are liable to be confronting to these kinds of wars are not likely to follow the Conventions anyway. It’s arbitrary and capricious. We hope that our people who qualify for Geneva Convention status will be accorded it. The people I worry about more are the Special Forces who are floating around not in uniform. There, the United States would say in effect, we are treating your special operatives more or less the way we hope that you will treat ours – in a humanitarian way even though they don’t qualify for Geneva Convention rules. I think that the kind of people that US Forces are going to be fighting are going to make judgments based on their inclinations at the moment.

G. BIBLIOGRAPHY ON DETAINEES*

Amnesty International, Memorandum to the US Government on the Rights of People in US Custody in Afghanistan and Guantánamo Bay, AI-index: AMR 51/053/2002 (May 4, 2002), available at http://web.amnesty.org/ai.nsf/recent/AMR510532002 (last visited Feb. 13, 2003);

Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantánamo Bay Naval Base, 25 Harv. J.L. & Pub. Pol’y 591 (2002):

The aim of this Article is to give a qualified defense of the use of military commissions to try, as the Military Order says, “Certain Non-Citizens in the War Against Terrorism,�? including their use to determine the legal status of detainees at Guantánamo Bay Naval Base. It is a highly qualified defense of military commissions, in that it does not seek to defend the actual terms of the Military Order, but instead simply the concept of military commissions as such.

Veronica Ascarrunz, The Due Process Implications of Mandatory Immigration Detention: Mandatory Detention of Criminal and Suspected Terrorist Aliens, 13 Geo. Mason U. Civ. Rts. L.J. 79 (2003);

Kevin J. Barry, Military Commissions: American Justice on Trial, Fed. Law., July 2003, at 24;

John W. Broomes, Note, Maintaining Honor in Troubled Times: Defining the Rights of Terrorism Suspects Detained in Cuba, 42 Washburn L.J. 107 (2002);

A. Christopher Bryant & Carl Tobias, Quirin Revisited, 2003 Wis. L. Rev. 309;

John Cerone, ASIL Insights, Status of Detainees in International Armed Conflict, and their Protection in the Course of Criminal Proceedings (Jan. 2002), available at http://www.asil.org/insights/insigh81.htm (last visited Feb. 13, 2003);

Erin Chlopak, Foreign Terrorist Military Tribunal Authorization Act of 2001, 9 Hum. Rts. Brief 33 (Winter, 2002). Very short article that contains this attack on the Administration’s approach to the detainees:

In defense of military tribunals, President Bush has asserted that those who would be tried in such courts are “unlawful combatants who seek to destroy our country and our way of life.�? Indeed, unlawful combatants, in contrast to prisoners of war, lack due process protections under the Geneva Conventions, which govern the laws of war. International treaties, such as the ICCPR, however, are not specific to certain persons, but rather protect the fundamental human rights of all persons. Moreover, the classification of detainees as unlawful combatants, and not prisoners of war, is a legal determination governed by the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol 1). In particular, Article 45 of Protocol 1 articulates a presumption that a person who partakes in hostilities and falls into an adverse party’s power is a prisoner of war, and therefore protected by the Third Geneva Convention “if he claims the status of prisoner of war, or if he appears to be entitled to such status, or if the Party on which he depends claims such status on his behalf . . ..�? Additionally, Protocol 1 provides that where “any doubt arise[s] as to whether any such person is entitled to the status of prisoner of war, he shall continue to have such status, and therefore, to be protected by the Third [Geneva] Convention and this Protocol until such time as his status has been determined by a competent tribunal (emphasis added).�? Thus, President Bush’s ad hoc decision that individuals, whose guilt he determines should be adjudicated by a military commission, are unlawful combatants is improper. An executive determination that detainees are unlawful combatants, rather than prisoners of war, may in some instances violate the guarantee of a judicial determination of such status codified in Protocol 1, and in graver instances, this executive determination could violate humanitarian protections guaranteed to prisoners of war by the Geneva Conventions. Importantly, trial by a military commission of persons wrongfully denied prisoner of war status would violate Article 106 of the Third Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949, which provides that all prisoners of war have the right of appeal or petition from any sentence, in the same manner as members of the armed forces of the detaining power.

Byard Q. Clemmons, The Case for Military Tribunals, 49 Fed. Law., May 2002, at 27;

David Cole, Essay, The New McCarthyism: Repeating History in the War on Terrorism, 38 Harv. C.R.-C.L. L. Rev. 1 (2003);

Damon Coletta, Military Tribunals and the Delicate Nature of President Bush’s Unilateralist Foreign Policy, 12 J. Legal Stud. 63 (2003);

Laura A. Dickinson, Using Legal Process to Fight Terrorism: Detentions, Military Commissions, International Tribunals, and the Rule of Law, 75 S. Cal. L. Rev. 1407 (2002):

In a sense, then, this crisis has forced us to revisit the question of what the rule of law gets us as a nation and as a people, particularly the role that legal process values themselves might play in long-term efforts to combat terrorism. This is a crucial question for anyone interested in the ongoing vitality of international law (particularly international human rights law). In this Article, I approach the issue from a number of different angles. First, I lay out the argument that the Administration’s treatment of detainees as well as the proposed military commissions run counter to the rule of law-- both domestically, by violating U.S. constitutional protections, and internationally, by flouting established principles of international law.

Accordingly, in Part II of this Article, I address such realist concerns head-on by arguing that, far from being a straight-jacket that threatens our security, the respect for legal process values, in particular the respect for international law, will actually best serve our long-term strategic interests in containing terrorism.

One of the most common arguments against the use of international tribunals in this context is that such tribunals are impractical both because they are so difficult to establish and because they are unlikely to be embraced in the current political climate. Therefore, in Part III, I address this concern by noting at least one way in which an international tribunal process could be initiated expeditiously and, perhaps even more promising, I also present two alternative “quasi-international�? models that have received insufficient consideration thus far. Finally, Part IV takes a step back and addresses the law skeptics’ perspective at a more theoretical level.

Donald A. Downs & Erik Kinnunen, A Response to Anthony Lewis: Civil Liberties in a New Kind of War, 2003 Wis. L. Rev. 385;

John P. Elwood, Prosecuting the War on Terrorism: The Government’s Position on Attorney-Client Monitoring, Detainees, and Military Tribunals, 17 Crim. Just. 30 (2002);

Christopher M. Evans, Note, Terrorism on Trial: The President’s Constitutional Authority to Order the Prosecution of Suspected Terrorists by Military Commission, 51 Duke L.J. 1831 (2002) (footnotes omitted):

This Note analyzes the president’s legal predicate for authorizing military commissions in response to the attacks on September 11. It concludes that, under Ex parte Quirin, the president’s Order is constitutional. The attacks of September 11 were so catastrophic in their purpose and effect as to constitute “hostile acts�? in violation of the laws of war. Because the attacks commenced an imperfect or “quasi war,�? the jus in bello was triggered, thus giving the president valid authority to convene the commissions to punish these acts as war crimes under Ex parte Quirin. This Note maintains, however, that the Military Order is nevertheless an extralegal action because it is inconsistent with existing international law. The laws of war, a subset of the law of nations, apply only to state actors, not to independent terrorist organizations such as those believed to be responsible for the September 11 atrocities. Despite the administration’s attempt to effect a rapid change in customary international law so as to apply the laws of war to nonstate actors, such a change, even if possible, cannot be made retroactive to the events of September 11. Thus, these commissions lack legal justification under international law.

Part I of this Note briefly summarizes the events of September 11 and then discusses the November 13 Military Order. Part II examines the historical precedent for convening military commissions to prosecute war crimes, and it also considers the various arguments supporting the president’s Military Order. Part III describes the unique factual background and holding of Ex parte Quirin, and then analyzes *1834 the applicability of this opinion to the acts of September 11. Despite the clear differences between the Bush administration’s military campaign and the World War II context in which Ex parte Quirin was decided, this Note concludes that this opinion provides a valid constitutional basis for the November 13 Military Order. Part IV discusses the inapplicability of the laws of war to terrorist organizations and the Bush administration’s attempt to bring about a sudden change in existing customary international law. Finally, this Note considers the policy implications of using military commissions, as well as the administration’s desired change in customary international law. It is argued here that, despite its constitutionality, the Military Order is both unwise and inconsistent with existing law.

Joan Fitzpatrick, Agora: Military Commissions, Jurisdiction of Military Commissions and the Ambiguous War on Terrorism, 96 Am. J. Int’l L. 345 (2002);

George P. Fletcher, On Justice and War: Contradictions in the Proposed Military Tribunals, 25 Harv. J.L. & Pub. Pol’y 635 (2002)[mostly about the inappropriateness/illegality of the tribunals]:

The autumn of our anguish has passed, and we are still confused about how to describe the use of military force in Afghanistan. We are torn between using the language of justice and the language of war. Is this an attack by private individuals, a case of a single terrorist writ large? If the mass killings of September 11 are the crimes of individuals--Islamic fundamentalist versions of Timothy McVeigh--then we can think about arresting them and bringing them to “justice.�? The mantra of the Bush team, “bringing justice to them and them to justice,�? has seeped through the media and become part of the standard discourse of people thinking and writing about the war. Yes, the war. What else should we call the military response to one of the most serious attacks ever executed on the soil of the United States? From its initial pronouncements, the White House has found it easy to invoke the rhetoric of armed aggression and collective self-defense. This has been a war in anyone’s book except perhaps in the minds of traditional international lawyers who claim that you cannot fight a war against a nonstate organization.

Leon Friedman, Constitutional Limits to the Fight Against Terrorism, 19 Touro L. Rev. 97 (2002);

Thomas Geraghty, Comment, The Criminal-Enemy Distinction: Prosecuting a Limited War Against Terrorism Following the September 11, 2001 Terrorist Attacks, 33 McGeorge L. Rev. 551 (2002);

Robert K. Goldman and Brian D. Tittemore, Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law, available at http://www.asil.org/taskforce/goldman.pdf, (last visited Feb. 11, 2003);

Emanuel Gross, Trying Terrorists - Justification for Differing Trial Rules: The Balance Between Security Considerations and Human Rights, 13 Ind. Int’l & Comp. L. Rev. 1 (2002):

Thus, this article will focus primarily on the proper forum for trying terrorists and will ask whether it is appropriate to establish a special forum for a specific offense, namely, terrorist offenses.

Oren Gross, Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional? 112 Yale L.J. 1011 (2003);

Michael H. Hoffman, Terrorists Are Unlawful Belligerents, Not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law, 34 Case W. Res. J. Int’l L. 227 (2002) [short, very relevant article by “an experienced practitioner in the field of international humanitarian law�?];

Lisa M. Ivey, Comment, Ready, Aim, Fire? The President’s Executive Order Authorizing Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism Is a Powerful Weapon, but Should it Be Upheld?, 33 Cumb. L. Rev. 107 (2002-2003) (Footnotes omitted):

The analysis in this comment is concerned solely with the issue of whether the Executive Order itself provides enough procedural safeguards for the military tribunals to be upheld as constitutional. Thus, the delicate constitutional and international law question of whether the Executive Order should be regarded as unconstitutional because it includes individuals who fall under the jurisdiction of the International Court is beyond the scope of this comment. Also, the application of the Geneva Convention to suspected terrorists who may be tried by military tribunals under the Executive Order is beyond the scope of this comment.

Derek Jinks, September 11 and the Laws of War, 28 Yale J. Int’l L. 1 (2003);

Michael J. Kelly, Executive Excess v. Judicial Process: American Judicial Responses to the Government’s War on Terror, 13 Ind. Int’l & Comp. L. Rev. 787 (2003);

Harold Hongju Koh, Agora: Military Commissions, The Case Against Military Commissions,
96 Am. J. Int’l L. 337 (2002);

Heinz Klug, The Rule of Law, War, or Terror, 2003 Wis. L. Rev. 365;

Elisa Massimino, Alien Justice: What’s Wrong with Military Trials of Terrorist Suspects?, 29 Hum. Rts. 14 (Winter 2002)[doesn’t specifically address the Guantánamo detainees, just “terrorism suspects�?];

Michael J. Matheson, Agora: Military Commissions, U.S. Military Commissions: One of Several Options, 96 Am. J. Int’l L. 354 (2002);

Kathleen M. McCarroll, With Liberty and Justice for All: The November 13, 2001 Military Order Allowing the Use of Military Tribunals to Try Those Suspected of Aiding Terrorists Violates the Rights Guaranteed to Non-Citizen United States Residents Under the Constitution, 80 U. Detroit Mercy L. Rev. 231 (2003);

Daryl A. Mundis, Agora: Military Commissions, The Use of Military Commissions to Prosecute Individuals Accused of Terrorist Acts, 96 Am. J. Int’l L. 320 (2002);

Sean D. Murphy, Ability of Detainees in Cuba to Obtain Federal Habeas Corpus Review, 96 Am. J. Int’l L. 481 (2002);

Sean D. Murphy, Decision Not to Regard Persons Detained in Afghanistan as POWs, 96 Am. J. Int’l L. 475 (2002);

Gregory P. Noone, Essay, President Bush’s Military Order: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 34 Case W. Res. J. Int’l L. 253 (2002):

This essay is limited to an examination of the Military Order of November 13th and is not a summary of opposing views. It will not attempt to point out every issue that may be contrary to standard U.S. justice practices, address the somewhat related “detainee-prisoner of war�? debate, or confront issues of the law of war that have been raised in the last several months.

Jordan J. Paust, Judicial Power to Determine the Status and Rights of Persons Detained Without Trial, 44 Harv. Int’l L.J. 503 (2003);

Diane F. Orentlicher & Robert Kogod Goldman, When Justice Goes to War: Prosecuting Terrorists Before Military Commissions 25 Harv. J.L. & Pub. Pol’y 653 (2002) [mostly about the commissions];

Michael Ratner, Moving Away from the Rule of Law: Military Tribunals, Executive Detentions and Torture, 24 Cardozo L. Rev. 1513 (2003);

Alejandra Rodriguez, Comment, Is the War on Terrorism Compromising Civil Liberties? A Discussion of Hamdi and Padilla, 39 Cal. W. L. Rev. 379 (2003);

Dinah Shelton, The Legal Status of the Detainees at Guantánamo Bay: Innovative Elements in the Decision of the Inter-American Commission on Human Rights of 12 March 2002, 23 Hum. Rts. L.J. 13 (Sept. 2002);

Anne-Marie Slaughter, Beware the Trumpets of War: A Response to Kenneth Anderson [Discussion of What to do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantánamo Bay Naval Base, 25 Harv. J.L. & Pub. Pol’y 965 (2002);

Amanda Schaffer, Comment, Life, Liberty, and the Pursuit of Terrorists: An In-Depth Analysis of the Government’s Right to Classify United States Citizens Suspected of Terrorism as Enemy Combatants and Try Those Enemy Combatants by Military Commission, 30 Fordham Urb. L.J. 1465 (2003);

Carl Tobias, Detentions, Military Commissions, Terrorism, and Domestic Case Precedent, 76 S. Cal. L. Rev. 1371 (2003);

Jennifer Trahan, Trying a Bin Laden and Others: Evaluating the Options for Terrorist Trials, 24 Hous. J. Int’l L. 475 (2002);

Stephen I. Vladeck, Policy Comment, A Small Problem of Precedent: 18 U.S.C. § 4001(a) and the Detention of U.S. Citizen “Enemy Combatants,�? 112 Yale L.J. 961 (2003);

Ruth Wedgwood, Agora: Military Commissions, Al Qaeda, Terrorism, and Military Commissions, 96 Am. J. Int’l L. 328 (2002);

Ruth Wedgwood, ASIL Insights, Tribunals and the Events of September 11^th (Dec. 2001), available at http://www.asil.org/insights/insigh80.htm (last visited Feb. 13, 2003).

^{[ [1] ]} Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism, 66 Fed. Reg. 57833, Vol. 66, No. 222, Section 2(a) (1) (i) – (iii).

^{[ [2] ]} See e.g., Amnesty International, USA: AI calls on the USA to end legal limbo of Guantanamo prisoners, AI Index: AMR 51/009/2002, issued 15/01/2002, at http://web.amnesty.org/ai.nsf/Index/AMR510092002 . See: Appendix, Doc. 10 (p. 35) The detainees have been confined in makeshift eight-by-eight foot cells made of chain link fence, with corrugated metal roofs and concrete slab floors. The open-air cages are surrounded by razor wire and guard towers; prisoners have reportedly been provided with thin foam mattresses and rations in plastic bags. Tony Winton, Guantanamo Gets Ready to House War Prisoners; Site Once Held Boat People, The Record, Thursday, January 10, 2002 at A13. See: Appendix, Doc. 11 (p. 37) See also: BBC, Inside Camp X-Ray, available at http://news.bbc.co.uk/hi/english/static/in_depth/americas/2002/inside_camp_xray/default.stm. . . .

^{[ [3] ]} Statement of High Commissioner for Human Rights on Detention of Taliban and Al Qaida Prisoners at US Base in Guantanamo Bay, Cuba, 16 January 2002, at: http://www.unhchr.ch/huricane/huricane.nsf/newsroom.

^[ [4] ^] Davis Bloom and Soledad O’Brien, Former Defense Secretary William Cohen Discusses the Status of Prisoners Held by US in Guantanamo Bay and Afghanistan, NBC News, Saturday, January 12, 2002.

^[ [5] ^] See United Nations General Assembly Resolution on the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, Resolution 43/173 (9 December 1988), Principle 11; United Nations Basic Principles on the Role of Lawyers, Adopted by the Eighth United Nations Congress on the Prevention of Crime and Treatment of Offenders, Havana, Cuba, (27 August to 7 September 1990), Principles 1 to 8; Rules Governing the Detention of Persons Awaiting Trial or Appeal Before the Tribunal or Otherwise Detained on the Authority of the Tribunal for Rwanda and the Former Yugoslavia and Rwanda (As Amended) 29 November 1999, Rules 5, 9, 12 and 67 . . .

^{[ [8] ]} Coard et al v United States, Case 10,951, Inter-Am. C.H.R. Report No. 109/99, (1999), para.39.

^[ [9] ^] Mary and Carrie Dann v. United States (Dann Band of the Western Shoshone Nation), Case 11.140, No. 99/99.

^[ [10] ^] Although the United States is not a party to the Convention, and thus Article 25 of the Rules of Procedure of the Inter-American Commission on Human Rights applies rather than Article 63 of the Inter-American Convention on Human Rights, due to the similarity between these two provisions, jurisprudence interpreting Article 63(2) is relevant in interpreting the meaning of the term “irreparable harm.�?

^{[ [11] ]} Article 63 of that Convention relevantly provides that: “In cases of extreme gravity and urgency, and when necessary to avoid irreparable damage to persons, the Court shall adopt such provisional measures as it deems pertinent in matters it has under consideration. With respect to a case not submitted to the Court, it may act at the request of the Commission.�?

^{[ [12] ]}Loayza Tamayo Case, Provisional Measures, Inter-Am. Ct. H.R. July 2, 1996.

^{[ [13] ]} See, e.g., Loayza Tamayo case, Provisional Measures, Inter-Am. Ct. H.R., February 3, 2001.

^{[ [14] ]} See e.g., Case of Haitians and Dominicans of Haitian Origin in the Dominican Republic, Provisional Measures. Inter-Am. Ct. H.R., August 18, 2000.

^{[ [15] ]} The La Nación Newspaper case, Provisional Measures, Inter-Am. Ct. H.R., May 23, 2001. In this case, the Court held that if a libel judgment was executed against a journalist, it might cause effects that could never be eliminated retroactively and/or cause unnecessary prolongation of a harmful situation. It also considered that these effects could include impingement on the journalist’s freedom of expression as well as the freedom of expression of Costa Rican society generally, that the petitioner’s name would be registered in the Judicial Register of Offenders, reparation might never make the petitioner whole again, and the Court’s decision on the merits might be without useful effect.

^{[ [16] ]} Case 11.509, Report No. 2/99, Inter-Am. C.H.R. (1999)

[ [17] ] Provisional Measures, Inter-Am. Ct. H.R., November 23, 2000

^{[ [18] ]} See also Paniagua Morales case, Provisional Measures, Inter-Am. Ct. H.R., January 29, 2001 (provisional measures warranted because of risk to the life and personal safety of a witness).

^{[ [19] ]} See e.g., Case of Haitians and Dominicans of Haitian Origin case, supra.

^{[ [20] ]}As this request was considered while the Commission was in session, these precautionary measures were approved by all eligible members of the Commission present, namely: Juan Méndez, President; Marta Altolaguirre, First Vice-President; José Zalaquett, Second Vice-President; Julio Prado Vallejo and Clare Kamau Roberts, Commissioners. Commissioner Robert K. Goldman did not take part in the discussion and voting on these precautionary measures, pursuant to Article 17(2) of the Commission’s Rules of Procedure.

^{[ [21] ]}Article 25(1) of the Commission’s Rules of Procedure provides: “In serious and urgent cases, and whenever necessary according to the information available, the Commission may, on its own initiative or at the request of a party, request that the State concerned adopt precautionary measures to prevent irreparable harm to persons.�?

^{[ [22] ]}See e.g. American Convention on Human Rights, Art. 63(2); Rules of Procedure of the Inter-American Court of Human Rights, Art. 25; Statute of the International Court of Justice, 59 Stat. 1055, Art. 41; Rules of Procedure of the United Nations Human Rights Committee, U.N. Doc. CCPR/C/3/Rev.6, Art. 86; Rules of Procedure of the European Commission of Human Rights, revised Rules updated to 7 May 1983, Art. 36; Rules of Procedure of the African Commission on Human and Peoples’ Rights, adopted on 6 October 1995, Art. 111.

^{[ [23] ]} See Regulations of the Inter-American Commission on Human Rights, approved by the Commission at its 660^th Meeting, 49^th session held on April 8, 1980, and modified at its 64^th, 70^th, 90^th and 92^nd sessions, Art. 29; Rules of Procedure of the Inter-American Commission on Human Rights, approved by the Commission at its 109^th special session held from December 4 to 8, 2000, Art. 25; Annual Report of the IACHR 1996, Chapter II(4); Annual Report of the IACHR 1997, Chapter III(II)(A); Annual Report of the IACHR 1998, Chapter III(2)(A); Annual Report of the IACHR 1999, Chapter III(C)(1); Annual Report of the IACHR 2000, Chapter III(C)(1).

^{[ [24] ]} See IACHR, Fifth Report on the Situation of Human Rights in Guatemala, OEASer.L/V/II.111 doc. 21 rev. (6 April 2001), paras. 71-72; Juan Raul Garza v. United States, Case No. 12.243, Report No. 52/01, Annual Report of the IACHR 2000, para. 117.

^{[ [25] ]}See I/A Court H.R., Advisory Opinion OC-10/89, July 14, 1989, "Interpretation of the American Declaration of the Rights and Duties of Man within the Framework of Article 64 of the American Convention on Human Rights," Ser. A Nº 10, paras. 43 – 46; James Terry Roach and Jay Pinkerton v. United States, Case 9647, Res. 3/87, 22 September 1987, Annual Report of the IACHR 1986-87, paras. 46-49; Michael Edwards et al. v. Bahamas, Case No 12.067, Report No. 48/01, Annual Report of the IACHR 2000.

^{[ [26] ]}The determination of a state’s responsibility for violations of the international human rights of a particular individual turns not on that individual’s nationality or presence within a particular geographic area, but rather on whether, under the specific circumstances, that person fell within the state’s authority and control. See e.g. Saldaño v. Argentina, Report No. 38/99, Annual Report of the IACHR 1998, paras. 15-20; Coard et al. v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the IACHR 1999, para. 37, citing, inter alia., IACHR, Report on the Situation of Human Rights in Chile, OEA/Ser.L/V/II.66, doc. 17, 1985, Second Report on the Situation of Human Rights in Suriname, OEA/Ser.L/V/II.66, doc. 21, rev. 1, 1985. See similarly Eur. Comm. H.R., Cyprus v. Turkey, 18 Y.B. Eur. Conv. Hum. Rgts. 83 (1975) at 118; Eur. Comm. H.R., Case of Loizidou v. Turkey, Preliminary Objections, Judgment of 23 March 1995, Series A No. 310, paras. 59-64.

^{[ [27] ]}See generally Abella v. Argentina, Case No. 11.137, Report No. 5/97, Annual Report of the IACHR 1997; Coard et. al. v. United States, supra; IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102 doc. 9 rev. 1, 26 February 1999.

^{[ [28] ]}Abella Case, supra, para. 158.

^{[ [31] ]}ICJ, Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, ICJ Reports 1996, para. 25. See also Abella Case, supra, para. 161; Coard et al. Case, supra, para. 42.

^{[ [32] ]} See e.g. Remarks by the President in Photo Opportunity with the National Security Team, Office of the Press Secretary, September 12, 2001, http://whitehouse.gov/news/releases/2001/09/20010912-4.html.

^{[ [33] ]} See e.g. Radio Address of the President to the Nation, Office of the Press Secretary, October 13, 2001, http://www.whitehouse.gov/news/releases/2001/10/20011013.html.

^{[ [34] ]}See e.g. Jim Garamone, 50 Detainees now at Gitmo; All Treated Humanely, American Forces Press Service, January 15, 2002, http://www.defenselink.mil/news/Jan2002/n01152002_200201151.html.

^{[ [35] ]}See White House Fact Sheet, Status of Detainees at Guantanamo, Office of the Press Secretary, February 7, 2002,
http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html.

³⁸ Al Odah v. U.S., 321 F.3d 1134 (D.C. Cir.), cert. granted sub nom. Rasul v. Bush, 124 S. Ct. 534 (U.S. Nov. 10, 2003) (No. 03-343); Rasul v. Bush, 321 F.3d 1134 (D.C. Cir.), cert. granted, 124 S. Ct. 534 (U.S. Nov. 10, 2003) (No. 03-334).

⁴⁰ Hamdi v. Rumsfeld, 316 F.3d 450 (4th Cir. 2003), cert. granted, 124 S. Ct. 981 (U.S. Jan. 9, 2004) ( No. 03-6696); Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003), cert. granted, 72 U.S.L.W. 3488 (U.S. Feb. 20, 2004) ( No. 03-1027).

* The author wishes to thank Mary Rumsey for her assistance in preparing this bibliography.