Abstract
The United States administration’s policy of detaining ‘unlawful enemy combatants’ at the United States military base in Guantanamo Bay falls short of international and domestic law standards. The problem in the authors’ view is not that the United States has decided to designate those captured on the battlefield in Afghanistan as ‘unlawful combatants’ who (allegedly) fall outside the scope of international humanitarian law. International humanitarian law has long recognized the existence of such a category. The problem is rather that international humanitarian law has been sporadically and selectively applied and in many respects has been ignored or violated with respect to the detainees held in Guantanamo and elsewhere within the context of the ‘war on terror’. In its recent judgements in Hamdi v. Rumsfeld, Rumsfeld v. Bush and Rasul v. Bush the United States Supreme Court has not passed an unambiguous and clear judgement on the United States policy towards unlawful enemy combatants. The Court may have rejected the executive’s claim that it has the authority to incarcerate people suspected of terrorist connections without any judicial review, the three decisions have not imposed on the executive a clear framework governing the detention of alleged terrorists. The Court has upheld the government’s power to hold ‘enemy combatants’ according to standards that fall short of the requirements of the Geneva Conventions. Moreover, the due process protection granted to those challenging their status as’ enemy combatant’ is so deferential to the executive that it could render review virtually insignificant.
Highlights
The question of the status and treatment of the detainees held at the American naval base at Guantánamo Bay has generated a huge amount of controversy and has played and will continue to play a fundamental role in proceedings before United States Federal Courts.[1]
A number of questions require attention. These include whether the international humanitarian law of armed conflict, provides for the possibility of the detention and prosecution of persons as ‘unlawful combatants’ or ‘unlawful enemy combatants’ without granting them prisoner of war status. Another related question is to the extent such a possibility exists, whether this would signify that such unlawful combatants would fall outside the scope of the applicability of the Geneva Conventions and to at least some degree of legal protection which flows from them
If there is room under traditional international humanitarian law for unlawful combatant status under the Hague Regulations of 1907 and Geneva Conventions of 1949, what does this signify in terms of the status, treatment and protection which they are entitled to on the basis of those instruments and under other applicable humanitarian and human rights standards? As stated previously, in the event of any doubt concerning an individual’s status, it is absolutely necessary to make a determination of status by a competent tribunal before proceeding with any other steps, including in particular prosecution for unauthorized belligerency or any other offence.[46]
Summary
The question of the status and treatment of the detainees held at the American naval base at Guantánamo Bay has generated a huge amount of controversy and has played and will continue to play a fundamental role in proceedings before United States Federal Courts.[1] Within this context, a number of questions require attention These include whether the international humanitarian law of armed conflict, (hereinafter referred to as the law of armed conflict or as international humanitarian law) provides for the possibility of the detention and prosecution of persons as ‘unlawful combatants’ or ‘unlawful enemy combatants’ without granting them prisoner of war status. The article will be completed by a number of concluding observations
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