1. Does the Law of Armed Conflict apply in the current war in terror?
The Law of Armed Conflict (LOAC) emerged because of the desire among nations to avert unnecessary hostilities while not impeding the effective waging of war. It is important to understand that LOAC is a part of public international law and it will naturally regulate the conduct of armed hostilities. Its objective is to protect prisoners of war, the wounded and the sick including the civilians.
2. Should our enemies be given combatant status? Or, are they illegal cobatants?
Our enemies can be given combatant status because legal combatant targets are immediately distinguished in a process called Distinction. Its aim is to only engage valid military targets. What constitutes and indiscriminate attack is when it strikes military objectives and civilians without any kind of distinction. This kind of distinction requires the defenders to keep apart the military objects from the civilian objects. (Fogarty, 2005). Consequences of not following the LOAC principles to the
3. What are the consequences of current alleged violations? The United States has been doing massive kidnapping suspected to be involved on the war on terror. Mustafa Ait Idir of Bosnia was kidnapped along with other six Bosnians who were suspected to be part of the terrorist group. They were held in Guantanamo Bay in Cuba where they were tortured and forced to admit crimes that never committed. This is a violation of the Geneva Convention. Guantanamo itself was illegally acquired for more than half a century in order to contain Haitian refugees. This became the major prison facilities for prisoners of war of the United States.
The United States claimed that U.S. Constitution is not applicable in this area and thus the Geneva Convention is not applicable as well (Brittain, 2006). The U.S. in this regard is implying that human rights violation is acceptable outside the territory of the United States. An irony that is not compatible with the world’s most powerful democracy.
4. Is there ever a good reason to disobey Law of Armed Conflict?
Legal combatant targets are immediately distinguished in a process called Distinction. Its aim is to only engage valid military targets. What constitutes and indiscriminate attack is when it strikes military objectives and civilians without any kind of distinction. This kind of distinction requires the defenders to keep apart the military objects from the civilian objects. (Fogarty, 2005). Consequences of not following the LOAC principles to the
4. Is there ever a good reason to disobey Law of Armed Conflict?
In the ongoing war on terror, the Bush Administration upholds the US civic ideals must not frustrate an effective defense. Since there are limitations with regard to the US criminal law, the government came up with Military Commissions so that the detainees are designated.
5. What are the ethical implications if someone violates the Law of Armed Conflict?Here is the issue of military necessity which implies that it will require combat forces to engage only on those actions that are important to accomplish a legitimate military objective. Thus, the attacks are limited only to military objectives. This means that the military can zero in on the facilities, equipment and forces which, when defeated, can lead to the quickest surrender of the enemy (Fogarty, 2005).
6. Are you offended by alleged abuse against detainees or civilians?(Yes, I am) I am actually offended and sad that there are abuses against detainees. The article selected here elaborates on the Guantanamo Bay and the many other human rights violation. Amnesty International included the United States among countries that have massive human rights violation. The United States was clustered together with countries like Sudan, China, Turkey, and Colombia where human rights where human rights violation were clearly an issue (Maran, 1999). This paved the way for the revitalization of human rights campaign in the United States. Despite the efforts of the government, the United States has been criticized as having double standards in cases of human rights in the sphere of international relations.
7. Is the media handling coverage of alleged abuses fairly?
There is a need to consider that it is the basic human right of the prisoners to prove that they are in fact not guilty of any criminal wrongdoing. However not giving them the rights to prove it is in fact holding them captives without any proof of reasonable cause. In addition to this, many people believe that many of these captives especially those coming from Afghanistan are not really combatants but rather mere citizens of Afghanistan. What worsened the case is the increasing speculation of maltreatment and abuses being received by these prisoners. This is all the more aggravated by media’s sensationalized handling of the news.
8. Would it be acceptable for other nations to treat our military members the same way if they were captured?
According to the defense of the administration, the U.S Courts do not have jurisdictions over the petitions of the prisoners regarding their habeas corpus. This means that these prisoners cannot appeal for their habeas corpus rights because their habeas corpus petitions are not under the jurisdiction of the United States (Andrews, 2004).
There is a need to consider that it is the basic human right of the prisoners to prove that they are in fact not guilty of any criminal wrongdoing. However not giving them the rights to prove it is in fact holding them captives without any proof of reasonable cause. In addition to this, many people believe that many of these captives especially those coming from Afghanistan are not really combatants but rather mere citizens of Afghanistan. What worsened the case is the increasing speculation of maltreatment and abuses being received by these prisoners. Also, it is important that the prisoners of war be accorded a humane treatment since we also require that they treat our military members in the same manner if they were captured, thus, we must exercise the same kind of consideration of their rights.
Fogarty, Gerard. 2005. Is Guantanamo Bay Undermining the Global War on Terror?
Article Retrieved June 15, 2008 at:
Andrews, J. (2004). Bush administration claims police-State powers in Guantanamo arguments before US Supreme Court. Article Retrieved June 15, 2008 at:
Brittain, V. (2006). Guantanamo: A feminist perspective on U.S. human rights violation. Meridians: Feminism, Race, and Transnationalism 6(2), 209-219.Maran, R. (1999). International human rights in the U.S.: A Critique. Social Justice, 26(1), 49-50.Article selected:
Fogarty, Gerard. 2005. Is Guantanamo Bay Undermining the Global War on Terror?
Article Retrieved June 15, 2008 at:
“The basic proposition here is that somebody who comes into the United States of America illegally, who conducts a terrorist operation killing thousands of innocent Americans, men, women, and children, is not a lawful combatant. They don’t deserve to be treated as a prisoner of war. They don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process. . . . [T]hey will have a fair trial, but it’ll be under the procedures of a military tribunal. . . . We think [it] guarantees that we’ll have the kind of treatment of these individuals that we believe they deserve.”— Vice President Dick Cheney14 November 20011
Prosecution of the war against terror has resulted in the detention by the United States of at least 650 citizens from more than 40 countries at military detention facilities on the US naval base at Guantanamo Bay, Cuba.2 Although the Bush Administration has held firm to the position expressed in the above quotation by the Vice President almost four years ago, the legality of this position continues to elicit significant worldwide commentary and, indeed, the interest of the US Supreme Court.
3 While the Administration’s position has a number of prominent defenders,4 much international expert opinion has weighed in on the other side of the debate. Some of this opinion has been particularly critical. Justice Richard Goldstone,5 for example, the former Chief Prosecutor in the International Criminal Tribunals for Yugoslavia and Rwanda, stated in a BBC interview in late 2003 that “a future American President will have to apologize for Guantanamo.”6 In the spring and early summer of 2005, a number of US politicians—Republicans as well as Democrats—suggested that perhaps the time had come to close the Guantanamo prison.
The question of how to deal with the detainees in the ongoing Global War on Terrorism (GWOT) is, however, an extremely difficult issue. The subject has not only generated worldwide commentary, but rifts within the Bush Administration itself.7 Following 9/11, the Administration invoked extraordinary wartime powers to establish a new system of military justice that would match a very different type of conflict. As the Administration sought to apply those powers, it became mired in problems that it is still struggling to solve.
In this article, the competing positions on the legal status of the detainees are assessed. First, the article outlines why Guantanamo Bay was chosen as a location for detainee operations. It then outlines the competing positions on the Prisoner of War (POW) status of the detainees and the competing views on the due process protections that should be provided detainees charged with war crimes.
The article then discusses the wider effects that the Administration’s policies in Guantanamo Bay are having on the Global War on Terrorism. The article concludes with recommendations for an alternative approach to deal with the detainees. The recommended approach outlined in this article aims to regain the initiative for the Bush Administration. It seeks to recapture much-needed international legitimacy, thereby creating greater diplomatic space within which opportunities to harness broader international support and involvement in the Global War on Terrorism can be pursued.
Why Guantanamo Bay?
The United States and its coalition partners remain at war against al Qaeda and its affiliates, both in Afghanistan and in further operations around the world. Since Osama bin Laden declared war on the United States in 1996, al Qaeda and its affiliates have launched repeated attacks that have killed thousands of innocent Americans and hundreds of civilians from other countries.
8 The Bush Administration states that the law of armed conflict governs what it terms “the war between the US and al Qaeda” and therefore establishes the rules for detention of enemy combatants.9 The US Congress, however, has not formally declared war. Instead, the President has authorized the detention, treatment, and trial of non-citizens in the Global War on Terrorism under a “Military Order” derived from the constitutional authority vested in his position as the President and Commander in Chief of the armed forces of
the United States.10 In order to protect the nation and its citizens, and for the effective conduct of military operations to prevent further terrorist attacks, the Administration states that it is necessary to detain certain individuals to prevent them from continuing to fight and, subsequently, to try those who violate the laws of war.11
A leaked classified report prepared by Defense Department lawyers for Secretary Donald Rumsfeld in 2003 appears to substantiate why Guantanamo Bay was preferred by the Administration as the location to detain individuals in the GWOT. The report cited the long-held view that Guantanamo Bay offers the Administration certain legal “advantages” because its location falls outside the jurisdiction of US courts.
12 These advantages lie principally in the areas of removing detainees’ possible rights to question in US courts the legality of their detention and to facilitate permissive interrogation techniques which would otherwise be constrained by US statutes. The leaked report was the outcome of a working group of executive branch lawyers appointed by the General Counsel of the Department of Defense to address, inter alia, the legal constraints on the interrogation of persons detained by the United States.13
Some critics have linked the permissiveness of the legal interpretation for interrogation at Guantanamo, which underpinned Defense Secretary Rumsfeld’s approval of 24 specific interrogation techniques there, including “significantly increasing the fear level in a detainee,” to abuses that unfolded late in 2003 at the Abu Ghraib prison in Iraq.14 The Administration has denied such a link even though the Defense Department’s investigation into Abu Ghraib revealed that some of the techniques authorized for “unlawful combatants” in Guantanamo Bay had been used in Iraq.15 Seymour Hersh’s 2004 book, Chain of Command:
The Road from 9/11 to Abu Ghraib, which attributes the Abu Ghraib abuse to the Administration’s interrogation policies in Guantanamo, added fuel to the debate. Hersh’s theory about Guantanamo and Abu Ghraib resonates with an increasingly critical domestic and international audience, and lends credence to the claims of torture by the International Committee of the Red Cross16 and by four former British detainees who have sued Secretary Rumsfeld and ten others in the military chain of command for mistreatment at Guantanamo.17
The Administration unsuccessfully argued before the US Supreme Court in June 2004 its position that Guantanamo Bay lies outside the jurisdiction of US courts. The Supreme Court ruled that prisoners at Guantanamo could challenge their detention by writ of habeas corpus in US federal court.18 The ruling means that foreign detainees have the right to use a US court to question the legality of their imprisonment, even though they are being held outside the country. This finding could be the basis for future rulings applica-
ble to other US detention facilities as well. Many critics advocate that Guantanamo is the best-known detention facility, but that there are others operated by the Administration in Afghanistan and elsewhere.19
Lawful or Unlawful Combatants?
The official US position is that the detainees do not meet the criteria of legal combatants as outlined in the 1949 Geneva Conventions and are therefore “unlawful combatants” not entitled to POW status and other privileges specified by the Geneva Conventions.20 The detainees are not being treated as common criminals to be tried in civil courts, as has previously been the case with terrorists in the United States, because criminal law is too weak a weapon.21 Instead, the detainees are being treated as members of a military force, either al Qaeda or the Taliban, and as combatants in an armed conflict against the United States.
Secretary Rumsfeld has commented that “the detainees are not being labeled as prisoners of war because they did not engage in warfare according to the precepts of the Geneva Convention—they hide weapons, do not wear uniforms, and try to blur the line between combatant and noncombatant.”22 One of Rumsfeld’s legal advisers, Ruth Wedgwood, adds that the detainees are not covered by the Geneva Conventions because they are not fighting for a state, and that there has never been a recognized right to make war on the part of private groups.23
The Administration has not differentiated between al Qaeda or Taliban detainees in its position that the detainees are unlawful combatants. Additionally, it has advocated from as early as 2002 that no doubt exists as to the status of each individual detainee.24 The Administration also advocates that under the law of armed conflict the detainees can be held at Guantanamo Bay until the conclusion of the war against terror25 and without the full-dress procedure of criminal trials.26 Detainees, therefore, have been held in Guantanamo since January 2002 without charges,27 access to lawyers, or, until recently when the Supreme Court intervened, the right to challenge the legality of their detention.
In June 2004 the Administration announced the release of 26 detainees after an internal legal review conducted by Pentagon lawyers in Guantanamo Bay determined that the individuals had been wrongly detained.
28 The timing of this announcement was unfortunate for the Administration since it immediately preceded the Supreme Court hearing at which the Administration argued that detainee cases were being properly reviewed. Critics leaped on this fact, suspecting the Administration was releasing some individuals before the Supreme Court case in an attempt to demonstrate to the Court that
it was reviewing the individual status of detainees.29 More recently, the Administration announced that it has continued reviewing the status of detainees before an administrative tribunal.30 While the intent of the internal review conducted early in 2004 may be debatable, the fact is that as a result of the June 2004 Supreme Court ruling, the Administration is now reviewing the individual cases of all detainees.
The Bush Administration announced in September 2004 the format for these reviews. The first is called a “Combatant Status Review Tribunal,” which aims to determine whether each detainee meets the criteria of an enemy combatant. The second is called a “Detainee Administrative Review,” which is an annual review to determine the need to continue to detain the unlawful combatant. Following this review a board will determine whether the detainee should be released, transferred, or continue to be detained.31 As of 2 November 2004, 295 Combatant Status Review Tribunals had been conducted. Only one detainee was determined not to be an enemy combatant and was released.
32 But once again, the Administration’s procedures attracted the attention of the US courts. A Federal District Court Judge ruled on 8 November 2004 that the Administration must treat the detainees as POWs unless they appear before a special tribunal described in Article 5 of the Third Geneva Convention that determines they are not. The judge ruled that the Combatant Status Review Tribunals do not satisfy the Geneva Convention and are therefore insufficient to deny POW status.33
The Administration has stated that despite its determination that the detainees are unlawful combatants, it has treated them humanely at all times and provided privileges similar to those that POWs are entitled to under the Geneva Conventions.
34 The principal area of difference between how an “unlawful combatant” and a POW must be treated lies in more permissible interrogation methods and a reduced entitlement to various due process provisions. POW status under the Geneva Conventions prohibits various methods of interrogation, many of which have been authorized by the Administration for use at Guantanamo Bay, and demands a much higher level of due process protections than that which the Administration has planned for detainees charged with war crimes.35 POW status demands the same due process protections, for example, that a US soldier would receive under a courts-martial proceeding.
The Opposing View
An article in The New York Times reported that in the days following the President’s determination that the Geneva Conventions would not apply to detainees in the GWOT, Colin Powell, then Secretary of State, supported by Secretary Rumsfeld and also the Chairman of the Joint Chiefs of Staff, General Richard Myers, asked the President to reconsider applying POW status to the Taliban fighters.36 Secretary Powell, and a wide range of critics, believed that since the Taliban fighters were members of the regular armed forces of the de facto government of Afghanistan, they met the criteria for POW sta-
tus as outlined in the Geneva Conventions.37 Secretary Powell was particularly concerned about the increased risk US troops would face in Afghanistan and future conflicts if the Administration failed to consider the Geneva Conventions as applicable.38 Among other things, POW status would entitle detainees to humane treatment during interrogation and different procedural and evidentiary rights39 to those which the Administration has established for its Military Commissions.40
Secretary Powell’s view about the POW status of the Taliban fighters is shared by many US and international experts,41 including subject specialists at the UN.42 These critics also argue that any al Qaeda detainees who were acting as militia or volunteer corps members that formed part of the Taliban armed forces are also entitled to POW status.43 Moreover, even if the al Qaeda members do not qualify as members of the Taliban armed forces or as members of its integral militia, they may still qualify for POW status under the Geneva Conventions if they were part of an independent militia and meet the criteria44 outlined in the Conventions.
45 Regardless, as the critics point out, the Geneva Conventions and US military regulations that precede 9/1146 require findings by a competent tribunal before detainees are deprived of POW status.47 As discussed, tribunals are being convened by the Administration, but they have been ruled by a Federal District Court Judge as insufficient to deny POW status.
Due Process Protections
In the ongoing war against terror, the Bush Administration advocates that US civic ideals should not frustrate an effective defense.48 To overcome the limitations of US criminal law, for example, and in keeping with the detainees’ status as unlawful combatants, the Administration has established Military Commissions49 to try designated detainees.50 Military Commissions are a type of US military tribunal last used in World War II for the trial of spies, saboteurs, and war criminals.
These commissions are applicable only to non-US citizens and are designed to protect the individual rights of the accused while also safeguarding classified and sensitive information used as evidence in the proceedings.51 The Administration outlines that the commissions are recognized by the Geneva Conventions and have been used by many countries in the past.52 Egypt is among the countries that have used military commissions, but when Egypt did use this form of tribunal in 2000 it was
openly rebuked in the US State Department’s yearly report on human rights abuses. The State Department report, which was presented to Congress, averred that this type of military court deprived hundreds of civilian defendants of their constitutional rights.53
The Administration’s “forward-leaning” system of justice for detainees charged with war crimes was crafted by a small group of young lawyers who were settled into important posts in September 2001 at the White House, the Justice Department, and other agencies.
The work was conducted under the direction of Vice President Cheney and coordinated by the White House counsel at that time, Alberto Gonzales, who has since been elevated to Attorney General. The work commenced little more than a week after 9/11.54 The idea of using Military Commissions had been investigated thoroughly a decade before when options were being considered to try suspects in the bombing of Pan Am Flight 103 over Lockerbie, Scotland.55 The interagency group investigated four options: Military Commissions, criminal trials, military courts-martial, and tribunals with both civilian and military members, like the Nuremberg trials.
By October 2001, the White House lawyers had grown impatient with the “dithering” of the interagency group and took over the work themselves. It has been reported that at this stage all other options were abandoned and planning for Military Commissions moved forward more quickly, but with whole agencies, including the Defense Department, being left out of the discussions completely.56 The legal basis for the Administration’s approach was laid out on 6 November 2001 in a then-confidential memorandum sent to Mr. Gonzales by the Attorney General’s office. Attorney General John Ashcroft subsequently refused congressional requests to provide a copy of the document, but its contents were leaked and reported by The New York Times.
The memorandum said that the President, as Commander in Chief, has “inherent authority” to establish Military Commissions without congressional authorization and that the Administration could apply international law selectively. In particular, the memorandum outlined the legal precedent under which due process rights do not apply to Military Commissions.57
The Administration moved quickly after receiving the Attorney General’s advice, releasing the Presidential Military Order on “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism” a week later, on 13 November 2001. Rear Admiral Don Guter, who was the Navy Judge Advocate General at the time, has commented that many of the Pentagon’s experts on military justice were kept in the dark until the day before the order was issued, and when it was issued the order included none of their hastily prepared amendments.58 It was also reported that senior staff from the National Security Council and the State Department were also excluded from the
final discussions on the order, with the National Security Adviser and the Secretary of State finding out the details of the order only after it was issued.59
In World War II, when the US last used Military Commissions, the tribunals were fashioned generally on the prevailing standard of military justice.60 Following 9/11, however, the Administration saw no reason why it could not depart materially from current military justice standards and write new law for the commissions. Those involved believed a paradigm shift was needed to deal with terrorism.
The presidential Military Order outlined the concept for the revised approach, which enabled a lower standard of proof, expanded secrecy provisions, permitted a more liberal application of the death penalty, and denied judicial review of convictions.61 The order announced that the exact rules were to be established later by Secretary Rumsfeld.62 Criticism of the order was immediate, but not all the criticism came from outside the Administration.
It is widely reported that the respective judge advocate generals within the Pentagon supported the use of commissions, but argued strongly that the system would not be fair without amendment.63 In the end, when Secretary Rumsfeld published the rules for the commissions, it became obvious that he had taken their counsel into consideration and had compromised. He granted defendants a presumption of innocence and set “beyond a reasonable doubt” as the standard for proving guilt, but did not allow judicial review of convictions by civilian courts.64
On 3 July 2003, the Administration designated six detainees for the first commissions.65 Two of the six were British. News of the men’s prosecution became public in the United Kingdom just as British Prime Minister Tony Blair was beginning a major public relations campaign to overcome his unpopular support for the Iraq War. Under pressure from the British Parliament, Blair declared that any tribunals involving British citizens would follow “proper international law.”66 Blair was under increasing pressure from his Parliament to secure custody of a total of nine British detainees at Guantanamo.
A series of negotiations involving the British Attorney General, Peter Goldsmith, and officials from the Bush Administration were initiated quickly in order to agree on an acceptable process for the trial of the two British detainees. Lord Goldsmith would not budge from a basic demand that civilian courts review verdicts from the commissions.
67 The Administration argued that such a change would render the commissions unworkable. During a state visit to the UK in late November 2003, President Bush agreed to shelve the cases of the two British suspects for the foreseeable future.68 It remains unclear how many detainees will ultimately appear before a Military Commission, but the Administration has indicated that most of the detainees will not face a commission and will simply be released when they no longer pose a threat—or will remain interned for the duration of the Global War on Terrorism.69
The Opposing View
The Administration’s intent to try selected detainees by Military Commission has received widespread criticism. Spain, for example, has announced it will not extradite terrorist suspects to the United States if they are to face the tribunals.70 In essence, the opposing view characterizes the commissions as providing second-class justice. Amnesty International has been most vocal in its criticism, but it has received extensive support from a wide range of scholars and organizations.
71 The critics argue the commissions are discriminatory because they do not apply to US nationals, they allow a lower standard of evidence than is admissible in ordinary courts, there is no right of appeal to an independent and impartial court, and they lack independence from the executive branch.72 The Army Lawyer, a US Department of the Army periodical, published an article in November 2003 by a retired senior military lawyer that added weight to this view. I