White House, special briefing by A. Fleischer, February 7, 2002.Google Scholar

Cf., e. g., Spencer, X-Ray Inmates to Avoid “Military Courts”, BBC News, 27 February 2002; John Cerone, Status of Detainees in International Armed Conflict and their Protection in the course of Criminal Proceedings, ASIL Insights, January 2002; Robert Cyer, The Fine Art of Friendship: Jus in Bello in Afghanistan, 7 Journal of Conflict and Security Law (2002), 71.Google Scholar

75 UNTS 135 (Geneva Convention III).Google Scholar

75 UNTS 287 (Geneva Convention IV).Google Scholar

The analysis will be limited to the Geneva Conventions of 1949 as neither the US nor Afghanistan are parties to the Protocol Additional to the Geneva Conventions of 1949 relating to the Protection of Victims of International Armed Conflicts of 1977 (Protocol I).Google Scholar

That terrorist attacks, including those of September 11, 2001, created a state of armed conflict in which the US were involved is stated in the Military Order of November 13, 2001. Though it is not disputed that a state of armed conflict started on October 7, 2001, when the US commenced an armed operation against Al-Qaeda members and the Taliban in Afghanistan, it is questionable whether an armed conflict was caused by the terrorist attacks themselves. For the purpose of our analysis we consider that humanitarian law applies also to the attacks on US soil. If the main assumption of this paper was found to be flawed, the Guantanamo detainees would qualify as terrorists not entitled to the international protection granted by humanitarian law but would remain under the protection of the human rights corpus iuris. In this case the prisoners could legally challenge their unlawful arrest, having it taken place with the use of force on the territory of a sovereign state. Although some precedent exists concerning the abduction of a person in foreign territory for the purposes of criminal proceedings, the most notable of which is the Eichmann case, no uniform practice has yet developed to override the principles of territorial sovereignty and non-interference in internal affairs.Google Scholar

A POW may be prosecuted or suffer disciplinary sanctions for acts he has committed after capture. This occurrence is not analysed because it is irrelevant to the purpose of the study.Google Scholar

United States v. Noriega, 806 F. Supp. 791 (S. D. Fla. 1992), 799.Google Scholar

Most probably the detained Taliban qualify for POW status as they were members of a regular army at the moment of capture. The fact that the Taliban government was not recognized by the US is irrelevant by virtue of art. 2, par. 1, of Geneva Convention III.Google Scholar

The preparatory works indicate that the prosecutable acts referred to both acts covered by the national legislation and the treaties to which the state is a party, J. Pictet (ed.), Commentary to the III Geneva Convention relative to the Treatment of Prisoners of War (1960) (hereafter ICRC Commentary III), 416-17.Google Scholar

Final Record of the Diplomatic Conference of Geneva of 1949, Berne, 1950 (Final Record), II-A, 570.Google Scholar

This interpretation runs counter the very object and spirit of the Convention. It is surprising that the states parties did not object to it but asked only for clarification on the temporal validity of withdrawal of the Convention's safeguards.Google Scholar

See, e. g., the denial of POW status to captured US pilots by the North Vietnamese because guilty of bombing civil targets, Howard S. Levie, Maltreatment of Prisoners of War in Vietnam, 48 Boston Univ L. Rev. (1968), 323, reprinted in M. Schmitt and L. Green (eds.), Levie on the Law of War, International Law Studies, Vol. 70, Naval War College 107-112 (1998). More generally on the issue cf. Yoram Dinstein, The Distinction between Unlawful Combatants and War Criminals, in Y. Dinstein and M. Tabory (eds.), International Law at a Time of Perplexity. Essays in Honour of Shabtai Rosenne, 103 (1989).Google Scholar

The four requirements for lawful belligerency are set out in art. 4 (A) 2 of Geneva Convention III. For a detailed analysis of these conditions see Allan Rosas, The Legal Status of Prisoners of War, esp. 326–74 (1976).Google Scholar

Protocol I has considerably enlarged the categories of persons having right to combatant status, see in particular art. 44 of Protocol I.Google Scholar

US Department of the Army, The Law of Land Warfare, Field Manual No. 27-10, chapter 3, par. 161 (b), (1956).Google Scholar

Cf. art. 7 and art. 85, Geneva Convention III.Google Scholar

Final Record, II-A, 571.Google Scholar

Chapter 3, par. 178 (b).Google Scholar

The US Military Manual rightly specifies that the above provision applies also to those POWs who are accused of war crimes, chapter 3, par. 163 (b).Google Scholar

According to Gerald Draper, The Red Cross Conventions, 21 (1958), it is the ‘employment of ad hoc national courts’ for war crimes trials which the Convention precludes.Google Scholar

Military Order, Sect. 2 (a).Google Scholar

Military Order, Sect. 1 (f).Google Scholar

Ruth Wedgwood used these words in support of the Military Order: ‘… it would be a mistake to demand for Al Qaeda and the Taliban leadership the full protections accorded armies that respect the law of war. The military tribunals established by the presidential order are required to provide “full and fair” justice, but they should not be measured by a false standard. … The extraordinary protections that we provide in domestic trials, including trials under the Uniform Code of Military Justice for disciplinary offenses, should not be granted to combatants who have trampled on the laws of war', The Rules of War Can't Protect Al Qaeda, available at www.NY Times.com, 31 December 2001.Google Scholar

ICRC Commentary III (note 10, supra), 23.Google Scholar

Department of Defense, Military Commission Order No. 1, March 21, 2002.Google Scholar

ICRC Commentary III (note 10, supra), 414.Google Scholar

The rationale behind the Military Order seems to be to remove the detainees from the jurisdiction of federal courts, which are the only courts in the US competent to try terrorists.Google Scholar

The statement of the Secretary of Defene that some detainees may be held till the end of the conflict even if acquitted is legally correct only in the case that the detainees are POWs or civilian internees, cf. US Department of Defense Briefing, March 28, 2002.Google Scholar

According to art. 118 of Geneva Convention III, POWs ‘shall be released and repatriated without delay after the cessation of active hostilities'. Protocol I regards any ‘unjustifiable delay in the repatriation of prisoners of war’ as a grave breach.Google Scholar

Art. 119, par. 5, of Geneva Convention III.Google Scholar

This status most probably applies to Al-Qaeda members.Google Scholar

Cf. art. 4 of Geneva Convention IV and the limited exceptions therein contained. See also art. 8 on no-waiver of rights by protected persons.Google Scholar

Art. 70, par. 1.Google Scholar

Art. 66. See also art. 76.Google Scholar

Cf. art. 77.Google Scholar

December 5, 2001. Arguably a state of occupation continued to persist after the establishment of the provisional government because of the UN involvement in it.Google Scholar

According to art. 78, par. 1, ‘[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment'.Google Scholar

See art. 49, par. 1, of Geneva Convention IV.Google Scholar

Pictet, J. (ed.), Commentary to Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, (1958), (hereafter ICRC Commentary IV), 279.Google Scholar

Cf. articles 79-135.Google Scholar

There is no indication that the Guantanamo detainees are held as internees.Google Scholar

Cf. articles 41 and 42.Google Scholar

See art. 43 and articles 79-135.Google Scholar

On condition that a prima facie case for grave breach of the Convention has been made out by the requesting party, art. 146, par. 2.Google Scholar

Art. 5 reads as follows: ‘Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal'. In this regard see the position taken by the Inter-American Commission on Human Rights, Detainees in Guantanamo Bay, Cuba, Request for Precautionary Measures, March 13, 2002.Google Scholar

The point is spelt out in art. 131 of Geneva Convention III. Note that according to art. 1 the articles on Responsibility of States for international wrongful acts adopted by the International Law Commission, “Every internationally wrongful act of a State entails the international responsibility of that State”, Official Record of the General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp. IV.E.1, 2001. The UN General Assembly has ‘taken note’ of the articles in resolution 56/83 of 28 January 2002.Google Scholar

Art. 130 of Geneva Convention III.Google Scholar

Sassoli, Marco, State Responsibility for Violations of International Humanitarian Law, 48 IRRC (2002), 401.Google Scholar

For an analysis of this provision see the well-known article by Luigi Condorelli and Laurence Boisson de Chazournes, Quelques remarques à propos de l'obligation des Etats de ‘respecter et faire respecter’ le droit international humanitaire ‘en toutes circonstances', in C. Swinarski (ed.), Studies and Essays on International Humanitarian Law and Red Cross Principles in Honour of Jean Pictet, ICRC, 18 (1984), and by the same authors, Common Article 1 of the Geneva Conventions revisited: protecting collective interests, 46 IRRC (2000), 67.Google Scholar

Robertson, , Britain Has a Duty to Ensure that the Geneva Conventions Are Upheld, The Independent, 15 January 2002.Google Scholar

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Stein, Torsten, How much Humanity Do Terrorists Deserve?, in A. Delissen and G. Tanja (eds.), Humanitarian Law of Armed Conflict, Challenges Ahead. Essays in Honour of Frits Kalshoven, 567 (1991).Google Scholar