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Unlawful combatant

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The term unlawful combatant (also unlawful enemy combatant or unprivileged combatant/belligerent) is a term used to label certain persons considered outside of the protection of the Geneva Conventions; those to whom such protections are granted are referred to as lawful combatants. In the U.S., the Military Commissions Act codified the legal definition of this term and gave the President broad discretion in how a person is designated as an unlawful enemy combatant. An unlawful combatant is accorded neither the rights a soldier would normally have under the laws of war, nor the civil rights a common criminal would normally have.[citation needed]

The phrase "unlawful combatant" does not appear in the Third Geneva Convention (GCIII). However, Article 4 of GCIII does describe categories of persons who are entitled to prisoner of war status.

Since the September 11, 2001 attacks, the Bush Administration in particular has observed that those who do not meet this definition should be determined to be "unlawful combatant" and that by this definition legal protection under the Geneva Conventions is not warranted. Nathaniel Berman in the Columbia Journal of Transnational Law suggests that by declaring that some detainees do not merit the protections of criminal law, because of their combatant activities, and that they do not merit the protections of jus in bello due to the unlawful nature of their combat, the use of the term in current legal discourse seems "designed to put detainees beyond the reach of any law."[1]

Should there be doubt about whether persons have fulfilled the conditions that confer prisoner of war status, Article 5 of the GCIII states that their status may be determined by a "competent tribunal" and until such time they are to be treated as prisoners of war.[2] After such "competent tribunals" have determined their status, the "Detaining Power" may choose to accord detained unlawful combatants the rights of prisoners of war as described in the Third Geneva Convention, but is not required to do so. Unlawful combatants do retain rights under the Fourth Geneva Convention so that they must be "treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial".[3] This latter Convention also applies to civilian non-combatants who are affected by the conflict and due special protections as "protected persons."[4]

Critics among some human rights groups have challenged the treatment of unlawful combatants by the U.S. as having fallen short of the standards required under international humanitarian law. There are allegations that the Bush Administration’s policy of classification and detention of persons designated as "unlawful enemy combatants" is based on a presumption that the Geneva Conventions and Constitutional safeguards are an obstacle in the pursuit of the War on Terrorism according to Terry Gill and Elies van Sliedregt in the Utrecht Law Review.[5]

International law and practice

The term "unlawful combatant" has been used for the past century in legal literature, military manuals and case law. However—unlike the terms "combatant", "prisoner of war", and "civilian"—the term "unlawful combatant", or similar, is not mentioned in either the Hague or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.[6][3]

Prisoners of war

Main article: Prisoners of war

The Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a prisoner of war (POW). A lawful combatant is a person who commits belligerent acts but if captured, would be a considered POW. An unlawful combatant is someone who commits belligerent acts, but does not qualify under GCIII Articles 4 and 5.

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 labour 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 [of civil ships and aircraft], who do not benefit by more favourable 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...
...
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.

These terms thus divide people in a war zone into two classes. Those in armies and militias and the like (lawful combatants), and then those who are not. Those in armies and militias and the like have the right to be treated as prisoners of war upon capture and those not in armies and militias do not have the right to be treated as prisoners of war upon capture.

The critical distinction is that a "lawful combatant" (defined above) cannot be held personally responsible for acts prosecuting that combat, unless they commit war crimes or crimes against humanity. And if captured, they have to be treated as prisoners of war - basically they can be detained (more humane than killing them), but must be provided for, treated with respect, and so on.

If there is any doubt about whether an alleged combatant is a "lawful combatant" then they must be held as a Prisoner of War until their status has been determined by "a competent tribunal". If that tribunal rules that the combatant is an "unlawful combatant" then their status changes to that of a civilian which may give them some rights under Fourth Geneva Convention.[7]

Persons who are not prisoners of war in an international conflict

A non-combatant civilian "in the hands" of an enemy or an Occupying Power often gains rights through Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949 (GCIV) if they qualify as a "protected person".

Article 4. Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.
Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

If they fulfill the criteria they are a 'protected person' and are entitled to all the protections mentioned in GCIV. It should be emphasised that a national of neutral state, with normal diplomatic representation, in a war zone is not a protected person under GCIV.

But what of a combatant who does not qualify for POW status? If they qualify as a 'protected person' they get all the rights which a non-combatant civilian gets under GCIV but the Party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are Article 5 and Article 42.

Part I. General Provisions
...
Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
...
Section II. Aliens in the territory of a party to the conflict
...
Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

It is likely that if they have been found to be "unlawful combatant" by "a competent tribunal" under GCIII Article 5 and they are a protected person under GCIV, that the Party to the conflict will invoke GCIV Article 5. In which case the "unlawful combatant" does not have the "rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State". They do however retain the right "to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention."

If after "fair and regular trial" they are found guilty of a crime then the "unlawful combatant" can be punished by whatever lawful methods are available to the Party to the conflict.

If the Party does not use Article 5 the Party may invoke Article 42 of GCIV and use "internment" to detain the "unlawful combatant".

Persons who are not prisoners of war in an internal conflict

Civilians are covered by GCIV Article 3:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
...
(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
...
An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.
...

Combatant who does not qualify for POW status under the Geneva Conventions

Under the provisions of the Geneva Conventions can expect to be treated humanely and before they are punished they can expect to get a trial in "a regularly constituted court".

The last time that American and British unlawful combatants were executed after "a regularly constituted court" was the Luanda Trial as mercenaries.[8]

Mercenaries

Under Article 47 of Protocol I ( Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war."

On 4 December 1989 the United Nations passed resolution 44/34 the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. It entered into force on 20 October 2001 and is usually known as the UN Mercenary Convention[9]. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention."[10]

Child soldiers

The United Nations Convention on the Rights of the Child, Article 38, (1989) proclaimed: "State parties shall take all feasible measures to ensure that persons who have not attained the age of 15 years do not take a direct part in hostilities".

In a 2003 briefing[11] for the 4th UN Security Council open debate on children and armed conflict by Human Rights Watch they state in their introduction that:

In recent years progress has been made in developing a legal and policy framework for protecting children involved in armed conflict. The Optional Protocol to the Convention on the Rights of the Child on children in armed conflict, which came into force in February 2002, prohibits the direct use of any child under the age of 18 in armed conflict and prohibits all use of under-18s by non-state armed groups. By mid-December 2003, 67 states had ratified the Optional Protocol, including seven mentioned in this report (The seven are: Afghanistan, Democratic Republic of Congo, Philippines, Rwanda, Sierra Leone, Sri Lanka and Uganda). The UN Committee on the Rights of the Child had begun examining governments’ reports on steps taken to implement the Protocol. [Articles 8(2)(b)(xxvi), (e)(vii)[12] of] the Rome Statute of the International Criminal Court (1998) defines the recruitment of children under the age of 15 as a war crime.[13]

On July 26, 2005, the United Nations Security Council unanimously passed UN Security Council Resolution 1612, the sixth in a series of resolutions about children and armed conflict[14]. Resolution 1612 established the first comprehensive monitoring and reporting system for enforcing compliance among those groups using child soldiers in armed conflict.[15]

Domestic law

Current U.S. Law

As of October 17, 2006, When President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the U.S. Code was amended to include a definition of "unlawful enemy combatants" as follows:

"The term `unlawful enemy combatant' means--

`(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

`(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense."

Under the law,

"The term `lawful enemy combatant' means a person who is--

`(A) a member of the regular forces of a State party engaged in hostilities against the United States;

`(B) a member of a militia, volunteer corps, or organized resistance movement belonging to a State party engaged in such hostilities, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the law of war; or

`(C) a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States."10 U.S.C. 948a (Section 1, Subchapter I)

Much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their crimes in particular. Among its more controversial provisions, the law stipulates that

"No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination." 28 U.S.C. 2241(e)(1) (Section 7)

In other words, no one held as a potential enemy combatant may seek habeas corpus relief. Such detainees must simply wait until the military sees fit to convene a detainee status review tribunal (under the procedures described in the Detainee Treatment Act of 2005).

There are two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category could exist without violating the Geneva Conventions or whether the category should exist (that is, whether it is desirable from the point of view of U.S. interests). An equally important issue, however, is whether this category actually existed with the force of law during the five years in which it was an artifact of Bush administration policy, rather than congressional statute. Article I, Section 8 of the U.S. Constitution provides that Congress has the power to "make Rules concerning Captures on Land and Water" in times of war. Because of the separation of powers enacted by the Constitution, this article means that only Congress can make such rules, just as only Congress can declare war (a power granted in the same line of the Constitution). Thus, the question becomes whether creating a category of "unlawful combatants" or specifying ways in which such combatants are to be treated differently than others counts as a "rule concerning captures on land and water." If so, then under the Constitution, the executive branch of government, including the President and the Pentagon, would lack the authority to issue orders that create or define the treatment of "unlawful combatants." By the same token, the judicial branch of government — including the Supreme Court — may be unable to create such a category through its decisions if the category does not already exist in statutory law.

Furthermore, Congress has been determined to lack the ability to delegate its proper authority to other branches. Therefore, it may be the case that Congress cannot even delegate to the President the power to make rules concerning wartime prisoners, although his status as commander-in-chief may make such delegation more constitutionally acceptable in this particular case.

However, David B. Rivkin Jr. and Lee A. Casey, former US Justice Department lawyers, wrote:

Before the 1970s, the category of unlawful enemy combatant was widely understood and accepted as a critical part of the laws of war. Such individuals do not fight on behalf of sovereign states, have no regular and transparent command structure, do not wear uniforms, do not carry their arms openly and do not obey the laws of war. As a result, they present a particularly dangerous threat to civil society in general and the civilian population in particular. To deter this type of illegitimate, asymmetric warfare, unlawful combatants have historically been denied the rights of prisoners of war and could be severely punished after the most abbreviated of proceedings.[16]

1942 Quirin case

The term unlawful combatant has been used for the past century in legal literature, military manuals and case law[3]. The term "unlawful combatants" was first used in US domestic law in a 1942 United States Supreme Court decision in the case ex parte Quirin.[17] In this case, the Supreme Court upheld the jurisdiction of a U.S. military tribunal over the trial of several German saboteurs in the US. This decision states (emphasis added and footnotes removed):

"...the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing military forces. Unlawful combatants are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather military information and communicate it to the enemy, or an enemy combatant who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and punishment by military tribunals."

The validity of this case, as basis for denying prisoners in the War on Terrorism protection by the Geneva Conventions, has been disputed.[18][19][20] A report by the American Bar Association commenting on this case, states:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, “The question for decision is whether the detention of petitioners for trial by Military Commission ... is in conformity with the laws and Constitution of the United States. “ Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin,11 that right could hardly be denied to U. S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.[21]

Since the 1942 Quirin case, the US signed and ratified the 1949 Geneva Conventions, which are, therefore, considered to be a part of US domestic law. The court cases which are currently making their way through the US judicial system should clarify the US administration's domestic legal position and its international treaty obligations.[22]

September 18, 2001 Presidential Military Order

In the wake of the September 11, 2001 attacks the United States Congress passed a resolution known as the Authorization for Use of Military Force (AUMF) on September 18 2001. In this, Congress invoked the War Powers Resolution and stated:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.[23]

Using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"[24] which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", where such individuals are a member of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely.

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to describe the detainees held under the military order as "Illegal enemy combatants".

With the U.S. invasion of Afghanistan some lawyers in the Justice Department's Office of Legal Aid and in the office of White House counsel Alberto Gonzales advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire Taliban, because, they argued, Afghanistan was a "failed state".[25]

Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War [26]. For those U.S. citizens detained under the military order, US officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.

Most of the individuals, detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees, are held in Guantanamo Bay Naval Base. Guantánamo Bay, Cuba was chosen because although it is under the de facto control of the United States administration, it is not a sovereign territory of the United States and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

Following international criticism, the US has increasingly used other facilities, most notably Bagram in Afghanistan.

There have been a number of domestic legal challenges made on behalf of the detainees held in Guantánamo Bay and in other places. These include:

  • On July 30, 2002 The Washington D.C. District Court ruled that it did not have jurisdiction because Guantánamo Bay is not a sovereign territory of the United States. This decision was appealed to the D.C. Circuit Court which upheld the decision. The case was appealed to the United States Supreme Court on September 2, 2003.
  • On November 10, 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantánamo Bay as being unlawful.
  • On 10 January 2004, 175 members of both houses of Parliament in the UK had filed an amici curiæ brief to support the detainees' access to US jurisdiction.
  • On June 28, 2004, the Supreme Court ruled in Rasul v. Bush that detainees in Guantánamo Bay could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial.
  • On July 7, 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.[27]
  • On November 8, 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantánamo detainee tried before a military commission. Judge James Robertson of the U.S. District Court for the District of Columbia ruled in Hamdan v. Rumsfeld[28] that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions.
  • By March 29, 2005, all detainees at the Guantánamo Bay facility had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the unlawful enemy combatant status of 520 detainees [29]. Reuters reported on June 15 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said "The (reviews) are a sham,... They mock this nation's commitment to due process, and it is past time for this mockery to end"[30].

Yaser Hamdi was captured in Afghanistan in 2001. He was taken to Guantánamo Bay, Cuba, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On September 23 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision Hamdi v. Rumsfeld which issued a decision on June 28, 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the Executive Branch does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

On May 8, 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago's O'Hare International Airport and held as material witness on the warrant issued in New York State about the 2001 9/11 attacks. On June 9 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order legally justified the detention by leaning on the AUMF which authorized the President to "..use all necessary force against those nations, organizations, or persons..." and in the opinion of the administration a U.S. citizen can be an enemy combatant (This was decided by the United States Supreme Court in the case of Ex Parte Quirin)[31]. Padilla is currently being detained without charge in South Carolina and is accused by the Bush Administration of being an illegal enemy combatant and a nuclear terrorist planning to set off a dirty bomb.

  • The November 13 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are "unlawful combatants", which indicates that Padilla and Yaser Hamdi would end up in the civilian criminal justice system, as happened with John Walker Lindh.
  • On December 18, 2003, the U.S. Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per 18 U.S.C. § 4001(a)); it consequently ordered the government to release Padilla from military custody within thirty days[32]. But agreed that he could be held until an appeal was heard.
  • On February 20, 2004, the Supreme Court agreed to hear the government's appeal.
  • The Supreme Court heard the case, Rumsfeld v. Padilla, in April 2004, but on June 28 it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filled in South Carolina, where Padilla was being held.
  • On February 28, 2005, in Spartanburg, South Carolina, U.S. District Judge Henry Floyd ordered the Bush administration to either charge Padilla or release him[33]. He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (Hamdi v. Rumsfeld), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens."
  • On July 19, 2005, in Richmond, Virginia, the 4th U.S. Circuit Court of Appeals began hearing the government's appeal of the lower court (the District of South Carolina, at Charleston) ruling by Henry F. Floyd, District Judge, (CA-04-2221-26AJ). Their ruling Decided: September 9, 2005 was that "the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed."[34]
see also USA PATRIOT Act

Combatant Status Review Tribunal

see also Combatant Status Review Tribunal

Following the Hamdi v. Rumsfeld-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed.

However, critics maintain these CSRTs are inadequate to warrant acceptance as "competent tribunal." Their principal arguments are:

a The CSRT conducted rudimentary proceedings
b The CSRT afforded detainees few basic protections
c Many detainees lacked counsel
d The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.
e Detainees had no right to present witnesses or to cross-examine government witnesses.

Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir, Moazzam Begg,Murat Kurnaz, Feroz Abbasi, and Martin Mubanga. A comment by legal experts states:

It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. <......> The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a ‘competent tribunal’ pursuant to article 5 of the Third Geneva Convention.[35]

James Crisfield, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war -- only whether the detainee satisfies the definition of "enemy combatant""[36] Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal.

Hamdan v Rumsfeld

In Hamdan v. Rumsfeld the US Supreme Court did not rule on the subject of unlawful combatant status but did reaffirm that the US is bound by the Geneva Conventions. Most notably it said that Third Geneva Convention, regarding the treatment of detainess, applies to all prisoners in the War on Terror.

Critics and proponents

Legal experts dispute the accuracy of the position taken by the US administration regarding the definition of unlawful combatant, and that such prisoners could be held incommunicado and without legal representative. Also, it has been pointed out that, until now, the term "[illegal] enemy combatant" as used by the US administration, "appeared nowhere in U.S. criminal law, international law, or the law of war."[37]

The term Illegal enemy combatants, critics maintain, has mainly been used to deny detainees basic civil rights, such as the right to a counsellor, a speedy trial and right of appeal. It has been argued that this gives governments a right to arbitrarily suspend the rule of law in a way that should not be accepted. Philosophers such as Giorgio Agamben have underlined the proximity of "unlawful combatant" status with the ancient Homo sacer juridical status, which ex-cepted an individual from the sphere of right, depriving him of any rights specific to citizenship: therefore, as in the tumultus state (akin to the modern state of emergency), Homo sacer wasn't protected by state laws and could be exposed to any type of violence.

Critics[38][39]of the US administration's position, note that Gonzales in his advice to President Bush also points to a little known law passed by Congress, known as the War Crimes Act[40]. By declaring Taliban and Al Qaeda fighters did not have Geneva Convention protection it "substantially reduces the threat of domestic criminal prosecution under the War Crimes Act," Gonzales wrote. Another memo[41], written by Attorney General John Ashcroft, again summarizes the position of the Justice Department on why the Geneva Convention does not apply to al Qaeda or Taliban prisoners. Both memos warn against the possibility of U.S. officials being subject to prosecution for violating U.S. and international laws if the Geneva Conventions[42] are applied. With several "torture" incidents in mind sceptics think that these legal considerations could be a key argument[43] [44] [45] [46] [47] [48] for refuting the Geneva Convention. In addition, by explicitly addressing the War Crimes Act the memos acknowledge U.S. officials are involved in acts that could be seen to be war crimes. All senior officials in the Bush administration are subject to legal responsibility for crimes against humanity and crimes of war, as has been determined by the Yamashita standard.

For his part in laying the legal groundwork for prisoners to be detained without due legal process and allowing torture Marjorie Cohn, a contributing editor to Truthout, professor at Thomas Jefferson School of Law, executive vice president of the National Lawyers Guild, and the U.S. representative to the executive committee of the American Association of Jurists has suggested an indictment of Alberto Gonzales for war crimes under Title 18 U.S.C. section 2441, the War Crimes Act.[49][50]

Some governments whose nationals have been detained with this status by the United States, notably Canada, the UK, and Sweden, have intervened to limit the degree to which the rights of their nationals have been suspended. In general this has been handled on a case-by-case basis as numbers are few.

Furthermore, the difference of opinion around the globe as to the status of these prisoners would suggest Article 5 of the third Geneva Convention applies. It is very explicit: 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. Because of this legal experts contradict the U.S. administration's claim they can deny an individual prisoner of war status and detain suspects as "unlawful combatant."[51]

Other countries

Israel, since the 2002 "Imprisonment of Illegal Combatants Law" makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof. [52][53].

International criticism of unlawful combatant status

The purported legal status of "unlawful combatants", has been the subject of criticism by international human rights institutions; including Amnesty International, Human Rights Watch and the International Committee of the Red Cross.

In response to the US-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject[3] (which reflects the views of the author alone and not necessarily those of the ICRC), in which it states:

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.

Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia interpreted the International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958) to mean that:

there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied.[7]

The implication is that the status of unlawful combatant does not exist, as a person is either a combatant, or a civilian. If found to be civilian, then they may have committed some criminal acts, for which they can be punished under criminal law, that if committed by a combatant would not be illegal under the laws of war.

Many governments and human rights organizations worry that the introduction of the unlawful combatant status sets a dangerous precedent for other regimes to follow. When the government of Liberia detained American activist Hassan Bility in 2002, Liberian authorities dismissed the complaints[54] of the United States, responding that he had been detained as an unlawful combatant.

See also


Articles

Footnotes

  1. ^ Contemporary Conflict and the Legal Construction of War PDF by NATHANIEL BERMAN or HTML in COLUMBIA JOURNAL OF TRANSNATIONAL LAW
  2. ^ "Unlawful Combatants" in the United States: Drawing the Fine Line Between Law and War Human Rights Magazine Winter 2003, published by the American Bar Association
  3. ^ a b c d The legal situation of unlawful/unprivileged combatants (IRRC March 2003 Vol.85 No 849)
  4. ^ Background Paper on Geneva Conventions and Persons Held by U.S. Forces
  5. ^ Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’ PDF by Terry Gill and Elies van Sliedregt in the Utrecht Law Review or HTML version
  6. ^ WARRIORS WITHOUT RIGHTS? COMBATANTS , UNPRIVILEGED BELLIGERENTS, AND THE STRUGGLE OVER LEGITIMACY by KENNETH WATKIN for The Program on Humanitarian Policy and Conflict Research or HTML version
  7. ^ a b Background Paper on Geneva Conventions and Persons Held by U.S. Forces by "Human Rights Watch Press" footnote 1: International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Celebici Judgment, para. 271 (1998).
  8. ^ 1976 June 28: Death sentence for Angolan mercenaries BBC
  9. ^ International Convention against the Recruitment, Use, Financing and Training of Mercenaries A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention) Entry into force: 20 October 2001
  10. ^ International Convention against the Recruitment, Use, Financing and Training of Mercenaries
  11. ^ Child Soldier Use 2003: A Briefing for the 4th UN Security Council Open Debate on Children and Armed Conflict by Human Rights Watch.
  12. ^ The International Criminal Court and Children’s Rights (PFD) by "The American Non Governmental Organizations Coalition for the International Criminal Court" Page 1, Paragraph 3.
  13. ^ Introduction to A Briefing for the 4th UN Security Council Open Debate on Children and Armed Conflict by Human Rights Watch
  14. ^ Children and Armed Conflict: International Law/United Nations by the Center for Defence Information
  15. ^ [http://www.cdi.org/friendlyversion/printversion.cfm?documentID=3175 Children and Armed Conflict: UN enters “era of application” in its campaign against child soldiers by the Center for Defence Information October 12, 2005
  16. ^ The Gitmo decision, part 1 David B. Rivkin Jr. and Lee A. Casey The Washington Times July 11, 2006
  17. ^ Ex Parte Quirin -n1- (Nos. 1-7CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA) or Ex Parte Quirin or EX PARTE QUIRIN
  18. ^ War and the Constitution by George P. Fletcher in The American Prospect Issue Date: 1.1.02 or War and the Constitution and the response The Military Tribunal Debate
  19. ^ Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel by ACLU
  20. ^ TERRORISM AND THE RULE OF LAW by Nicholas Cowdery AM QC, President, International Association of Prosecutors Director of Public Prosecutions, NSW, Australia, at International Association of Prosecutors 8th Annual Conference, Washington, D.C. - 10-14 August 2003.
  21. ^ report by the American Bar Association in PDF
  22. ^ Supreme Court To Decide On 'Enemy Combatants' by Christopher Dunn in the April 14, 2004 edition of the New York Law Journal.
  23. ^ US Congress' joint resolution of September 18 2001 Authorization for Use of Military Force ("AUMF"); public law 107-40, 115 Stat. 224
  24. ^ President George W. Bush's Military Order of November 13 2001: Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism; 66 FR 57833 backup site
  25. ^ Outsourcing torture: The secret history of America's "extraordinary rendition" program by Jane Mayer The New Yorker Issue of 2005-02-14 Posted 2005-02-07 Paragraph 32
  26. ^ Outsourcing torture: The secret history of America's "extraordinary rendition" program by Jane Mayer The New Yorker Issue of 2005-02-14 Posted 2005-02-07 Paragraph 34
  27. ^ Q&A: US Supreme Court Guantánamo ruling, BBC July 8, 2004
  28. ^ Hamdan v. Rumsfeld summary, full text (PDF File) – U.S. District Court for the District of Columbia, presiding Judge James Robertson
  29. ^ DoD News: Combatant Status Review Tribunals Update No. 057-05, January 19, 2005
  30. ^ Guantánamo inmates can be held 'in perpetuity'- US Reuters June 15, 2005
  31. ^ Authorization for Use of Military Force: Padilla v. Bush: Jose Padilla under the Joint Resolution The Syracuse Journal of International Law and Commerce, issued by the Syracuse Collage of Law
  32. ^ Appeals Court Says Bush Can't Hold U.S. Citizen Published on Thursday, December 18 2003 by Reuters
  33. ^ Judge Says Terror Suspect Can't Be Held as an Enemy Combatant The New York Times March 1, 2005
  34. ^ José Padilla 4th U.S. Circuit Court of Appeals July 19, September 9 2005
  35. ^ Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’ PDF by Terry Gill and Elies van Sliedregt in the Utrecht Law Review or HTML version
  36. ^ Moazzam Begg's dossier (.pdf) from his Combatant Status Review Tribunal, hosted by Associated Press
  37. ^ Legal experts dispute...position taken by the US admin.
  38. ^ Torture and Accountability by Elizabeth Holtzman article in The Nation posted June 28 2005 (July 18 2005 issue) about The Geneva Convention
  39. ^ Memos Reveal War Crimes Warnings By Michael Isikoff Newsweek May 19 2004, 25 January 2002 - Memo from White House Counsel to President Bush opposing the application of Geneva Conventions to the conflict in Afghanistan in pdf format and other relevant memos
  40. ^ Federal Law 18 USC Sec. 2441 known as the War Crime Act or in another lay-out Federal Law 18 USC Sec. 2441 known as the War Crime Act
  41. ^ memo by Attorney General John Ashcroft in pdf format and other relevant memos
  42. ^ REFERENCE GUIDE TO THE GENEVA CONVENTIONS and States party to the Geneva Conventions and their Additional Protocols and Welcome to the Avalon Project at Yale Law School Documents in Law, History and Diplomacy
  43. ^ Former NY Congress member Holtzman Calls For President Bush and His Senior Staff To Be Held Accountable for Abu Ghraib Torture Thursday, June 30 2005 on Democracy Now
  44. ^ From John Ashcroft's Justice Department to Abu Ghraib by Joe Conason article in Salon May 22 2004
  45. ^ Bush and Blair are Called to Justice at Different Embassies Around The World WTI : World Tribunal on Iraq May 17 2005
  46. ^ US Lawyers Warn Bush on War Crimes Global Policy Forum January 28 2003
  47. ^ GONZALES ADDED TO WAR CRIMES COMPLAINT IN GERMANY; NEW EVIDENCE SHOWS FAY REPORT ON ABU GHRAIB PROTECTED OFFICIALS The Center for Constitutional Rights (CCR) is a non-profit legal and educational organization dedicated to protecting and advancing the rights guaranteed by the U.S. Constitution and the Universal Declaration of Human Rights.
  48. ^ US attacks Belgium war crimes law BBC Thursday, 12 June 2003
  49. ^ The Gonzales Indictment by Marjorie Cohn in truthout Wednesday January 19, 2005
  50. ^ The Quaint Mr. Gonzales by Marjorie Cohn in La Prensa San Diego, November 19, 2004
  51. ^ Difference of opinion.
  52. ^ Other Countries
  53. ^ "Israel: Opportunistic Law Condemned". Human Rights Watch. 2002 March 7. {{cite news}}: Check date values in: |date= (help); Unknown parameter |mnbmnb url= ignored (help)
  54. ^ Comments on the Arrest and Detention of Journalist Hassan Bility in Liberia Press Statement by Richard Boucher, Spokesman in the U.S State Department, July 8 2002

References

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