GUANTANAMERA:
The Continuing Debate Over The Legal Status Of Guantanamo Detainees

By JOANNE MARINER

Monday, Mar. 11, 2002

To the undoubted dismay of U.S. officials, the debate over the legal status of the detainees held in Guantanamo Bay, Cuba, has yet to subside. Although the Bush administration has held firmly to its stated view that none of the detainees has any claim to prisoner of war status under the Geneva Conventions, the question continues to elicit considerable commentary, including recent analyses published in the New York Times, the Washington Post, the International Herald Tribune, and a whole host of foreign newspapers.

While the administration's position has a handful of prominent defenders, including Yale Law Professor Ruth Wedgwood, most expert opinion has weighed in on the other side of the scales. Notably, the International Committee of the Red Cross (ICRC), the official guardian of the Geneva Conventions, has publicly expressed its disagreement with the U.S. view.

So have such international legal scholars as DePaul University Law Professor M. Cherif Bassiouni and human rights authorities such as U.N. High Commissioner for Human Rights Mary Robinson. Even the British, Washington's most loyal allies, have expressed qualms about the U.S. position on the detainees.

What then, in brief, are the main areas of disagreement?

The Factual Background: The Detainees and the Options

All of the detainees were captured in Afghanistan during the armed conflict; they are presumed to members of the Taliban or Al Qaeda forces. The United States first began transporting captured detainees to the U.S. Naval Base in Guantanamo Bay exactly two months ago, on January 11.

At present, the government is holding 300 men from twenty-six countries in captivity there. An additional 194 men are being detained by U.S. forces in Afghanistan; they face transfer to Guantanamo as soon as planned permanent prison facilities are ready.

None of the detainees has yet been charged with any crime. Two weeks ago, Secretary of Defense Donald Rumsfeld listed the future options facing the detainees. He said that they could be prosecuted in U.S. federal court, tried before a military court or commission, returned to their native countries (for possible prosecution), released (if believed to pose no law enforcement threat), or held indefinitely.

For many detainees, however, criminal prosecution seems an unlikely option. Despite weeks of interrogation, the authorities have reportedly been unable to collect sufficient evidence to support many individual prosecutions.

Because of the absence of individualized proof, the Bush administration is said to be considering the possibility of classifying membership in al Qaeda as a war crime. By doing so, the administration would be able to prosecute many detainees who cannot be linked to specific acts of violence or terrorism.

The Legal Debate: Status, and the Applicability of the Geneva Conventions

There is significant legal debate not only as to the precise status of the Guantanamo detainees, but also as to the more general question of the applicability of the Geneva Conventions to the war in Afghanistan and, indeed, to the broader counter-terrorism effort.

On transporting the first detainees to Guantanamo in January, the Bush administration announced that it did not consider them to be prisoners of war, but rather "unlawful combatants" entirely outside of the protections of the Geneva Conventions. In early February, having come under intense criticism for these views, President Bush revised his initial stance somewhat. Rather than asserting that the Geneva Conventions did not even apply to the war in Afghanistan, he announced that their protections applied to the armed conflict with the Taliban, but not to the conflict with Al Qaeda.

The Bush administration continued, however, to maintain that neither Taliban nor Al Qaeda detainees qualified as prisoners of war. Specifically, administration officials explained that the detainees did not meet the following criteria for recognition as a POW: being under a responsible command; having a fixed distinctive sign recognizable at a distance; carrying arms openly; and conducting their operations in accordance with the laws and customs of war.

Relevance - or Irrelevance - of the Cited Criteria

The Bush administration may be correct that both the Taliban and Al Qaeda forces do not meet the four listed criteria. However, as far as the Taliban detainees are concerned, this failure is irrelevant.

Under Article 4 of the Third Geneva Convention, members of the armed forces of parties to a conflict - i.e., forces such as the Taliban - are not assessed under the four criteria cited by Bush administration. Instead, all captured members of a party's armed forces automatically enjoy POW status. So do "members of militias or volunteer corps forming part of such armed forces."

The four criteria cited by the Bush administration are found in Article 4, but, as described in subsection A(2) of that provision, they only apply to the category of irregular troops: "[m]embers of other militias and members of other volunteer corps."

Al Qaeda fighters, unless they can show that they were part of the Taliban armed forces, would fall into this category. Since they are unlikely to be found to be in compliance with these criteria, they should probably not be granted POW status.

ICRC Commentary and Plain Language: Interpreting the Geneva Conventions

In a recent fine-tuning of the administration's argument, U.S. officials have looked to language in the ICRC's commentary to the Geneva Conventions. This language seems to take for granted that the armed forces of the parties to a conflict will abide by the four criteria specifically applicable to irregular troops. Relying on the commentary's language, the administration has suggested that the Third Convention implicitly applies the four criteria even to the armed forces of a party to the conflict.

This argument prioritizes the language of the commentary, however, over that of the Convention itself. As with any legal document, the language of the Convention has primacy over that of its expert commentary. And, while the drafters of the Convention may have indeed expected that regular armed forces would generally comply with the four criteria, they did not make such compliance a specific requirement for POW status.

A Competent Tribunal to Determine POW Status When In Doubt

Article 5 of the Third Geneva Convention states that if there is "any doubt" as to whether captured combatants should be recognized as POWs, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." In other words, if doubt exists, the status of each detainee must be determined individually, not by a blanket decision of the President.

The U.S. military issued regulations in 1997 that set out detailed procedures for such tribunals. Under these regulations, the tribunals consist of three commissioned officers. The regulations also provide that persons whose status is to be determined shall: be advised of their rights at the beginning of their hearings; be allowed to attend all open sessions and will be provided with an interpreter if necessary; be allowed to call witnesses if reasonably available, and to question those witnesses called by the tribunal; have a right to testify or otherwise address the tribunal; and not be compelled to testify before the tribunal.

The War on Terror

Besides being extremely problematic with regard to the situation of the present detainees, the Bush administration's grudging and restrictive view of the Geneva Conventions' coverage is a worrisome portent for the future. Already, U.S. ambassador-at-large for war crimes Pierre-Richard Prosper has stated bluntly that the Conventions are outdated and ill-suited to handling the threat of international terrorism.

When the administration considers whether it really needs to wage a "war" on terror free of Geneva Convention restraints, it should remember that the Conventions do much more than simply protect prisoners of war. Indeed, perhaps more importantly, the Conventions represent the most widely recognized and influential set of protections for civilian life in time of war. Given terrorism's brutal targeting of civilians, such protections should be acknowledged as more crucial than ever.


Joanne Mariner is a human rights attorney practicing in New York. Her previous columns about human rights issues, including columns on terrorism, Afghanistan, and other related topics, can be found in the archive of her pieces on this site.

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