What judicial treatment for the Guantanamo detainees?

German Law Journal

Volumn 3, Issue 9, 2002, Pages

  Vierucci, Luisa ^a  

^a NONE

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EID: 84922904992     PISSN: None     EISSN: 20718322     Source Type: Journal    
DOI: 10.1017/S207183220001539X     Document Type: Article

References (25)

1. White House, special briefing by A. Fleischer, February 7, 2002.
2. 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.
3. 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).
4. 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.
5. United States v. Noriega, 806 F. Supp. 791 (S. D. Fla. 1992), 799.
6. 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.
7. 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.
8. Final Record of the Diplomatic Conference of Geneva of 1949, Berne, 1950 (Final Record), II-A, 570.
9. 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.
10. 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).
11. Protocol I has considerably enlarged the categories of persons having right to combatant status, see in particular art. 44 of Protocol I.
12. 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).
13. 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.
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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'.
20. J. Pictet (ed.), Commentary to Geneva Convention IV relative to the Protection of Civilian Persons in Time of War, (1958), (hereafter ICRC Commentary IV), 279.
21. 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.
22. 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.
23. 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.
24. Robertson, Britain Has a Duty to Ensure that the Geneva Conventions Are Upheld, The Independent, 15 January 2002.
25. Torsten Stein, 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).