Detention at Guantanamo Bay: A Linguistic Challenge to Law

Vol. 30 No. 1

By

Michael J.D. Sweeney is an adjunct professor of law and former Joseph R. Crowley Fellow in International Human Rights at Fordham University School of Law.

Imagine a prison where the typical cell is just under seven by eight feet—three strides in one direction, four in the other—where prisoners remain in their cells or in interrogation sessions for all but forty-five minutes each week, broken into two or three fifteen-minute shower and exercise breaks. Prisoners wear shackles whenever they leave their cells. Congregation among prisoners is strictly prohibited, and communication with the outside world is very limited. To understand life in this prison, one of its officials encouraged a BBC reporter to imagine “being locked up 24 hours a day . . . Not knowing what’s going to happen, probably not even knowing why you’re here.”

If this description leads you to envision a maximum security prison for the most dangerous criminals, you would be accurate. The facility is, however, Camp Delta, the U.S. detention center at Guantanamo Bay, Cuba, where more than 550 enemy combatants captured during the war in Afghanistan are being held by the U.S. government. Amnesty International and the Lawyers Committee for Human Rights, among others, have described conditions here as being even harsher than conditions in high-security prisons in the United States.

Criminals or Combatants?

Most of the detainees have not been convicted of or even charged with a crime; they are “enemy combatants,” soldiers who fought against the U.S. troops. Under international law, engaging in active hostilities is not a “crime”—it is an exercise of the combatant’s privilege, to kill before you are killed. (Of course, soldiers do commit offenses during conflict, such as rape or killing a civilian or surrendered enemy, and these are punishable as crimes.) 

Even though enemy combatants are not criminals, warring states have the legal right to hold them in detention for interrogation or to prevent them from reengaging in active hostilities. In such cases, international law clearly governs the conditions and duration of detention and protects captured detainees from the type of treatment described above. At Guantanamo Bay, however, the Bush administration has refused to recognize the detainees under international law and has avoided the legal obligations.

Respect for Human Dignity

International humanitarian law governs both states’ conduct during armed conflict and the conditions for detaining enemy combatants. The law evolved through centuries, but it was the horror of World War II that drove the international community to develop a strong body of conventional law to constrain the way states wage war. The four 1949 Geneva Conventions and the 1977 Protocols I and II (together, the Geneva Conventions) are treaties that make up the post-World War II face of international humanitarian law. The Geneva Conventions’ guiding principle is that noncombatants such as civilians, prisoners of war (POWs), and shipwrecked sailors are entitled to respect for their human dignity and must be protected and treated with humanity. The Third 1949 Geneva Convention is dedicated to the protection of POWs. It governs the conditions and duration of POW detention, protects POWs from criminal prosecution for acts of violence committed on the battlefield against enemy combatants, and provides legal protections for POWs accused of crimes.

The Geneva Conventions clearly apply to the U.S. military campaign in Afghanistan (Operation Enduring Freedom). All four 1949 Conventions apply during times of international armed conflicts between states that are parties to them. Because both the United States and Afghanistan are state parties to the 1949 Conventions and because they are involved in armed conflict, the Conventions bind them. The Conventions also apply where one party to a conflict is not party to them but accepts and applies their provisions. The Conventions construe the term “armed conflict” broadly; they do not require a formal declaration of war.

Under the Third 1949 Geneva Convention, combatants who fall into enemy hands are presumptively POWs and are entitled to all protections for that legal status. “Combatants” are members of the armed forces of a recognized party to the conflict (e.g., the United States), including members of its militias and volunteer corps. Members of other militias and volunteer corps, such as the forces of the Northern Alliance, also are combatants if they are under responsible command, bear a fixed distinctive sign, carry their weapons openly, and apply the laws of war. “Combatants” also includes members of the regular armed forces of an authority not recognized by the enemy, (e.g., the Taliban). The term even extends to current and former members of the armed forces detained by an occupying power. When an issue about individual POW status exists, the Convention specifically provides that all protections of POW status attach until a competent tribunal decides the question. Enemy combatants captured by the U.S. military during Operation Enduring Freedom thus are entitled to POW status and the protections of the Third 1949 Convention.

The basis for humane treatment of POWs is that they are not criminals but sons and daughters, parents and spouses, through whom states conduct war. To ensure respect for dignity, the Third 1949 Geneva Convention governs the physical, spiritual, and psychological conditions of POW internment. Its mandate includes the following requirements: 

• Quarters similar to those of the detaining power’s armed forces, healthy and sufficient food, decent clothing, and access to ordinary articles of daily use.

• Free exercise of religion, access to intellectual and sports activities, and protection from enforced labor.

• Ability to receive aid, correspond with family, and have elected representation before the military authorities.

• Protection from criminal prosecution for legitimate acts of hostility and from collective punishment.

If a POW is charged with a crime, the Convention provides due process protections including notice of the charge, assistance of counsel, opportunity to present a defense, prohibition on prolonged detention awaiting trial, and trial by an impartial and independent tribunal.

The United States traditionally has recognized the protection of POWs under the Third 1949 Geneva Convention. During the Korean, Vietnam, and Gulf Wars, the military afforded captured enemy combatants POW status and accompanying protections. Where there was doubt about an individual’s POW status, the military followed the U.S. Army Field Manual interpretation of the Convention and afforded all protections for POW status until a competent tribunal of officers resolved the doubt. Since 1949 the U.S. military has convened thousands of these tribunals. But that practice has not continued into Operation Enduring Freedom.

Obscure Legal Status

Despite claiming to respect the Geneva Conventions, the Bush administration has refused to acknowledge the Guantanamo Bay detainees’ POW status; instead it has assigned them an obscure legal status. As Secretary of Defense Rumsfeld stated, they are “unlawful combatants . . . technically, unlawful combatants do not have any rights under the Geneva Convention.”

This obscure and undefined term has no legal status under the Geneva Conventions but facilitates the administration’s claims that the detainees are not protected under the Third 1949 Convention. Even though substantial evidence supports the detainees’ POW status, the administration refuses to convene competent tribunals to resolve the question. At the same time, the Bush administration has successfully argued in U.S. courts that U.S. law does not protect the detainees because they are not on U.S. soil. This leaves the detainees in a legal limbo with access to only those protections the administration decides apply.

This denial of legal status in order to avoid obligations under the Conventions violates both the letter and spirit of the law. In another quote, Secretary Rumsfeld characterized the detainees as “enemy combatants that we captured on the battlefield”—in other words, POWs protected by the Third 1949 Geneva Convention, or at least entitled to a tribunal review to determine their status. The Bush administration’s position is inconsistent with the plain language of the Conventions.

Further, the administration’s position violates the spirit of the Geneva Conventions: that combatants in enemy hands are entitled to respect for their human dignity and status as combatants. The cramped cells; shackling; and severe restrictions on exercise, personal hygiene, and communications at Camp Delta violate this guiding principle of the Conventions. The administration’s attempt to justify the treatment simply by denying that the detainees are POWs is illegitimate. If avoiding obligations were so simple, the Geneva Conventions would have no practical significance.

This denial of POW status eliminates two important administration concerns: (1) acknowledging POW status may inhibit the ability to interrogate the detainees and (2) POW status could mandate the release of detainees who are in fact dangerous terrorists. But acknowledging POW status does not limit the ability to interrogate or prosecute any more than do other applicable legal obligations.

Interrogation. Article 17 of the Geneva Conventions provides that POWs must give only their name, rank, serial number, and birth date. It does not preclude requests for more information, and obtaining information is bound to be difficult in some cases, regardless of POW status. Although Article 17 prohibits the use of physical coercion to gain information, so do applicable U.S. and other international laws (e.g., 18 U.S.C. § 2340A, Convention Against Torture; International Covenant on Civil and Political Rights). Acknowledging POW status would prohibit the use of detention conditions like those at Camp Delta to punish the detainees or “soften them up” for interrogation; but, regardless of official status, the underlying principle of the Geneva Conventions—that combatants are not criminals per se and are entitled to human respect—would prohibit such treatment.

Release. Article 118 of the Third Geneva Convention provides that POWs “shall be released and repatriated without delay after the cessation of active hostilities.” Despite the legal obligation, the administration seems intent on holding the detainees after the war in Afghanistan ends. Questioned about when the Guantanamo Bay detainees might be released, Secretary Rumsfeld responded, “when we feel that there are not effective global terrorist networks functioning that these people would be likely to return to and begin again their terrorist activities.” Similarly, many administration officials, including the president, have publicly voiced the opinion that all Guantanamo Bay detainees are “killers” and “terrorists” rather than or in addition to being combatants. The implication is that the administration is holding the detainees for acts other than legitimate acts of hostility during the war in Afghanistan. Although the Geneva Conventions provide for prosecution and punishment of crimes, to date not a single detainee has been charged with, not to mention convicted of, any criminal acts.

Concern that POW status inhibits the ability to detain, try, and punish terrorists is misplaced. Terrorism is a criminal act, and neither the Geneva Conventions nor POW status protects criminal acts. But criminal prosecution implicates fundamental due process guarantees. For example, the Geneva Conventions require that prosecuting states afford criminal defendants basic due process such as a formal charge, assistance of counsel, opportunity to present a defense, and trial before an impartial and independent tribunal within a reasonable time of the charging. These requirements are not unique to the Geneva Conventions. Although whether U.S. legal protections would apply to the Guantanamo Bay detainees remains undecided, fundamental due process protections are firmly ensconced in customary international law, conventional international law, and in the laws of most nations—even Herman Goering and Slobodan Milosevic have been afforded basic due process. If using the unrecognized legal status of “unlawful combatant” is a ploy to avoid international legal obligations with respect to criminal due process, the United States will need to argue against much more than just the Geneva Conventions.

Risking U.S. Credibility

International political pressure to apply the Geneva Conventions, from states, legal scholars, journalists, and nongovernmental organizations, is strong. In response, the administration granted the International Committee of the Red Cross its traditional monitoring role, including access to the Guantanamo Bay detainees, and indicated that they will abide by the spirit (although not the letter) of the Conventions. For instance, the administration continues to ignore many fundamental protections concerning detention conditions, due process, and repatriation.

By rejecting treaty obligations and obligations under customary law, the United States risks its credibility as a proponent of the rule of law. States that perceive the world’s superpowers as unconcerned with the rule of law will be less inclined to respect it themselves. The Bush administration’s breach of legal obligation already has emboldened other countries to implement oppressive restrictions on civil liberties under the guise of national security. Moreover, the refusal to repatriate POWs and military trials that lack fundamental due process are grave breaches of the Conventions that could constitute war crimes.

Refusing to provide the Conventions’ protections to others risks having U.S. troops stripped of them abroad. As the world’s only remaining superpower, the United States has the most to lose from eroding respect for the Conventions’ protections. Wherever the U.S. military is involved in an armed conflict, the United States insists its soldiers are protected by the Geneva Conventions. The argument loses power if the United States does not abide by them itself.

With so much to lose and only marginal benefits to gain from the current detention regime, the Bush administration should reverse its position and provide the full protection of the Geneva Conventions to the detainees at Guantanamo Bay. If POWs have committed criminal acts, they should be treated as criminals; the Conventions require only that basic due process be respected. Whatever the administration believes it gains by denying internationally recognized fundamental rights must be weighed against the value of America’s tradition of championing human dignity throughout the world—and found wanting.

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