GUANTANAMO BAY DISPUTE:
Legal Interpretations?

Recent controversy over the physical and legal treatment of al Qaeda and Taliban detainees at Guantanamo Bay highlights the new challenges unconventional U.S. "war" on terrorism has brought to the interpretation of international law and laws of warfare. Washington has thus far refused to grant the detainees official prisoner-of-war (POW) status despite international pressure. The underlying question: how should the United States treat the prisoners, and what are the motives underlying its decisions?

 
Amalgam of complications

Concerned primarily with fair treatment of the detainees, several European countries, as well as organizations such as Amnesty International and International Committee of the Red Cross, are urging Washington to classify them as POWs who are guaranteed certain rights and protections under a series of agreements known as the Geneva Conventions. ¹ A U.S. decision to grant them POW status would, therefore, work to appease some of America's major allies, ensure justice in a procedure backed by international law, and boost U.S. credibility amidst mounting talk of American unilateralism.

The Pentagon, however, insists on calling the prisoners "unlawful combatants" or "battlefield detainees." Examining its reasons for doing so reveals that the disagreement goes deeper than mere semantics. It unveils a host of unprecedented legal difficulties that deters Washington from officially labeling the captives as POWs. First, in case of al Qaeda, its fighters are not members of a formal Afghan army, but of a stateless terrorist organization with a global network. According to the 1949 Geneva Conventions, a combatant must be part of an identifiable army or militia, wear a "distinctive sign" such as uniforms and insignias, carry arms, and subscribe to the international laws of warfare - criteria al Qaeda members largely fail to meet. Indeed, scholars claim that no member of a terrorist organization has ever been considered a combatant under international law. Further complicating the case is al Qaeda's close association with the Taliban, which did maintain a conventional army and thus may have greater reasons to be conferred POW status. ²

Clearly, a thorough investigation and analysis of relevant laws are needed before the status of the detainees at Guantanamo Bay can be established. And it is neither the task of the Department of Defense nor of any international organization to determine the legal status of the prisoners; according to the most prevalent interpretations of the Geneva Conventions, they have the right to be heard by an independent judge to have their POW status granted or denied. Such hearings, which would have to begin promptly to settle intensifying disputes, would assure U.S. allies and human rights groups that fairness ruled over the decision and that the United States heeded to international law in determining the fate of the prisoners.

 
Underlying issues and preferences

The Geneva Conventions mandate, in cases where the status of the detainees are in dispute, that they be given the same treatment as POWs until they have a hearing. In response, the United States has declared that in every way it is following the Geneva Conventions by treating them as POWs - without officially labeling them as such. Why, then, the reluctance on the part of the Pentagon to call them POWs?

Part of the answer derives from a matter of practicality, though a crucial one, in the U.S. anti-terrorism campaign. Under the Geneva Conventions, a POW does not have to provide any information beyond his or her name, rank, date of birth and military or personal serial number. Such a protection seriously impedes Washington's pressing need to extract as much information as possible regarding the Taliban and the al Qaeda network - including the whereabouts of Osama bin Laden.

But U.S. Secretary of Defense Donald Rumsfeld's staunch stance on the status of the detainees is also a reflection of the Bush administration's overt preference for trying terrorists in special military tribunals rather than in criminal courts. If a detainee is deemed a prisoner of war, the Geneva Conventions stipulate that defendant must have the same rights of appeal or petition under the same civilian or military courts as the armed forces of the detaining country - meaning they cannot be tried in a military tribunal.

If the detainee is denied POW status, however, he or she may now be tried in a military tribunal, as a result of an emergency executive order signed by President George W. Bush last November. ³ The executive order stated that terrorists ought, "when tried, to be tried for violations of the laws of war and other applicable laws" - arguing that they do not deserve POW status, and thus may be tried in military tribunals, because they fail to meet a criterion of Article 4.6 of the Geneva Conventions. Denial of POW status, therefore, is the first necessary step toward effectuating of the executive order while still adhering to the Geneva Conventions.

Compared to U.S. federal or military courts, military tribunals would allow the White House and the Pentagon significant leeway in handling terrorist suspects. Under Bush's order, the exact details of which have yet to be published, the Department of Defense would apparently have the power to write the rules for the tribunal, as well as to choose members of the panel. Conviction of suspects is also more likely in a military tribunal - it does not have a standard of guilt and can convict with a two-thirds vote, in contrast to a regular trial that requires burden of proof beyond a reasonable doubt and unanimous jury verdict. There is no provision for appeals to U.S. civil courts or international tribunals, while cases brought to military or civilian courts can end in the Supreme Court. Thus, cases brought to a military tribunal will probably undergo a speedier process.

As an alternative to military tribunals, Rumsfeld may opt for sending the prisoners back to their countries of origin to be tried - again an option the POW status disallows. Moreover, even for those detainees that are not eventually granted POW status, another legal hurdle awaits before they can be sent back: the Geneva Conventions require that prisoners not be deported to countries where they could be physically abused. Current prisoners reportedly include those from Britain, China, Egypt, Yemen, Saudi Arabia and Australia, and humane treatment upon return to some of those countries is difficult to guarantee. This is true even for those who do become official POWs, since they must be returned to their countries at the end of the war. And this is separate from yet another thorny question: when is the end of the war on terrorism, at which point the POWs must be deported?

 
Reaching a settlement

These intricate legal particularities make the determination of the status, and the future, of the detainees at Guantanamo Bay extremely complex. Eventually, when the Geneva Conventions direct the course of the issue - when appropriate courts and judges, and not the Pentagon nor human rights organizations - determine the status of the detainees, many will likely be granted POW status, and others will legitimately be denied that status. Whatever the outcome, the successful denouement is one in which fairness in the form of the Geneva Conventions is established, moral high ground maintained, and human rights respected, and one that sets a safe and solid precedence for terrorism cases in the future.

 

	POW Status	Others	Geneva Conventions
Status Determination	Member of formal military, Wear uniform, insignia, Follow international laws of wafare	Other captured combatants	Article 4
Interrogation	Name, DOB, rank, number	Full interrogation allowed	Article 17
Trial	Same judicial process as soldiers of detaining country (federal or military courts)	Military tribunal, international tribunal or trial in detainees home country	Articles 82, 84, 105
Treatment	Human rights guaranteed in Geneva Conventions	Other international laws and conventions	Articles 5, 13
Release	Deportation at end of war	Indefinite detention	Article 118

 
Military Tribunal

	Authority concentrated in hands of military officers who write the rules and choose the panel
	Two-thirds vote to convict
	Low standard of proof
	No right to appeal
	Access to a lawyer, but apparently no right to choose one
	High secrecy: protection of intelligence
	Can be held abroad
	Endorsed by executive order in November 2001
	Requires denial of POW status of defendant if adhering to Geneva Conventions
	Concerns: Little international support; strong opposition from civil liberties and human rights organizations; possibly illegal under international law

 
Civilian/Military Court

	Impartial justice: Terrorists dealt the same way as accused U.S. citizens and soldiers ? as ordinary criminals
	Possibility of appeal in three-tier system; could end in Supreme Court
	Military courts: Protection of intelligence, and could be held abroad
	Federal criminal court chosen for previous terrorism cases, as well as for John Walker Lindh, Richard Reid, and Zacarias Moussaouai
	Concern: Courtroom itself could become terrorist target

 
Excerpts from the 1949 Geneva Convention

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1.	Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2.	Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of      war.
3.	Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4.	Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5.	Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favorable treatment under any other provisions of international law.
6.	Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

B. The following shall likewise be treated as prisoners of war under the present Convention:

1.

Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

2.

The persons belonging to one of the categories enumerated in the present Article, who have been received by neutral or non-belligerent Powers on their territory and whom these Powers are required to intern under international law, without prejudice to any more favorable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126 and, where diplomatic relations exist between the Parties to the conflict and the neutral or non-belligerent Power concerned, those Articles concerning the Protecting Power. Where such diplomatic relations exist, the Parties to a conflict on whom these persons depend shall be allowed to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties normally exercise in conformity with diplomatic and consular usage and treaties.

C. This Article shall in no way affect the status of medical personnel and chaplains as provided for in Article 33 of the present Convention.

Article 5

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.

Article 13

Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.

Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.

Measures of reprisal against prisoners of war are prohibited.

Article 17

Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information. If he willfully infringes this rule, he may render himself liable to a restriction of the privileges accorded to his rank or status.

Article 82

A prisoner of war shall be subject to the laws, regulations and orders in force in the armed forces of the Detaining Power; the Detaining Power shall be justified in taking judicial or disciplinary measures in respect of any offence committed by a prisoner of war against such laws, regulations or orders. However, no proceedings or punishments contrary to the provisions of this Chapter shall be allowed.

Article 84

A prisoner of war shall be tried only by a military court, unless the existing laws of the Detaining Power expressly permit the civil courts to try a member of the armed forces of the Detaining Power in respect of the particular offence alleged to have been committed by the prisoner of war.

In no circumstances whatever shall a prisoner of war be tried by a court of any kind which does not offer the essential guarantees of independence and impartiality as generally recognized, and, in particular, the procedure of which does not afford the accused the rights and means of defense provided for in Article 105.

Article 105

The prisoner of war shall be entitled to assistance by one of his prisoner comrades, to defense by a qualified advocate or counsel of his own choice, to the calling of witnesses and, if he deems necessary, to the services of a competent interpreter. He shall be advised of these rights by the Detaining Power in due time before the trial.

Failing a choice by the prisoner of war, the Protecting Power shall find him an advocate or counsel, and shall have at least one week at its disposal for the purpose. The Detaining Power shall deliver to the said Power, on request, a list of persons qualified to present the defense. Failing a choice of an advocate or counsel by the prisoner of war or the Protecting Power, the Detaining Power shall appoint a competent advocate or counsel to conduct the defense.

Article 118

Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.

End Notes:

¹   See the full text of the Geneva Convention relative to the Treatment of Prisoners of War at http://www.unhchr.ch/html/menu3/b/91.htm

²   The Geneva Conventions allow the detaining country to grant POW status even to those from a country whose government is not diplomatically recognized, as in the case of the Taliban. See http://www.whitehouse.gov/news/releases/2001/11/20011113-27.html

By Reyko Huang CDI Research Analyst

Standard Version

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