The United States has invented a new category of captive, not covered by the Geneva Convention: 'unlawful combatants'. And it has made sure that nobody can question this unilateral designation by holding the prisoners taken in Afghanistan in the no-nation's-territory of the Guantanamo base on Cuba. What, legally, is going on? by OLIVIER AUDEOUD *
The legal position of the prisoners taken in Afghanistan by United States' troops is at the heart of a debate that has been confused by US statements and by a degree of international compliance in the name of the fight against terrorism.
According to the US authorities, the detainees transferred to the military base at Guantanamo Bay on Cuba are "unlawful combatants, who have no rights under the Geneva Convention". But the Geneva Convention of 27 July 1929 relative to the treatment of prisoners of war, as amended in 1949, undoubtedly does apply to the Guantanamo detainees.
The Convention, ratified by the US, applies "to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them." The term "war" has been explicitly replaced by the phrase "armed conflict" and this more general expression clearly applies to the US action in Afghanistan.
According to the preparatory work for the Geneva Convention, any dispute between states involving the use of armed forces is an armed conflict within the meaning of the convention. The US has undoubtedly engaged in armed action against the de facto authorities in charge in Afghanistan.
The convention applies irrespective of the duration of the conflict, the extent to which it results in bloodshed, and the size and standing of the forces involved. It covers "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" who are captured by one of the belligerents. This broad form of words was chosen to avoid uncertainties arising from the diverse nature of combatants. The Taliban and volunteers in Afghanistan clearly fall into the category of prisoners of war.
The label of "terrorist" attached by Washington to some detainees, notably members of al-Qaida, does not apply and the term "unlawful combatant" is unknown in international law. The principle is that anyone captured bearing arms is presumed to be a prisoner of war in the absence of evidence to the contrary. Only a competent tribunal can determine the status of the accused (1).
The transfer of prisoners to Guantanamo Bay compounds the legal confusion over the status of the detainees. According to the Geneva Convention, "prisoners of war must at all times be humanely treated" and "likewise ... must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity" (Article 13).
Conditions of transfer are subject to the same rules: "The transfer of prisoners of war shall always be effected humanely and in conditions not less favourable than those under which the forces of the Detaining Power are transferred" (Article 46).
It must be said that the treatment of the detainees does not meet those requirements. The refusal to apply the convention inevitably means that the prisoners have no rights and this in turn gives the US authorities carte blanche to interrogate them in whatever way they wish. Prisoners of war are only required to state their name, rank and number, and they must be released and repatriated as soon as hostilities cease.
The place of detention was chosen not only because it was close to US territory but also, apparently, because the base in question is not on American soil. According to Washington, the US constitution does not apply there. Also, the decision to opt for court martial allows them to dispense with the rights of defence guaranteed under the American constitution.
Under the Geneva Convention, prisoners are entitled to a fair and regular trial and to means of defence, and they have the right of appeal (2). But the military court envisaged by the US administration does not meet these conditions. In a move that suggests confusion and embarrassment, the US State Department has stated that the accused may engage civil as well as military defence counsel, that the hearings may be held in public if national security is not at issue, that a death sentence can be handed down only by unanimous decision and, lastly, that an appeals board may be set up.
Amang all these uncertainties, one thing is clear: the US is in breach of international law and its obligations under the Geneva Convention.
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* Lecturer in law at the University of Paris X, Nanterre
(1) Ironically, the US could have relied on the additional protocol of 1977, under which "mercenaries" are not entitled to prisoner of war status, but it has never ratified it. According to the definition given in the protocol, a mercenary is "motivated essentially by the desire for private gain" but that does not appear to apply in this case. The status of mercenary would nevertheless entitle the detainees to the rights of ordinary defendants.
(2) States whose nationals are held at Guantanamo are entitled to give them diplomatic protection and to require the US to comply with the rules of common law. Depending on the nature of the charges, which are not yet clear, the states in question may apply for extradition so that the detainees can be tried in their own countries.
Translated by Barbara Wilson