© 2003 by Oxford University Press
Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled
1 University of Florence
On 7 February 2002 the White House stated that both Al Qaeda and Taliban members held in the US Guantanamo Bay prison facilities following the 11 September 2001 attacks were not entitled to POW status but were all ‘unlawful combatants’. Over a year after the statement no charge has been formally brought against the detainees, who number over 600. In this paper it is contended that those Guantanamo detainees who are members of the Taliban armed forces must be presumed to be lawful combatants and, upon capture, have the right to POW status. Therefore the US refusal to grant them POW status places the US in violation of Article 5 of the Third Geneva Convention of 1949 requiring, in case of doubt, that POW status be granted until a ‘competent tribunal’ has made a final determination. As for Al Qaeda detainees treated by the US as ‘unlawful combatants’, they may not be held indefinitely in custody without charge. As ‘unlawful combatants’ they are civilians protected by the Fourth Geneva Convention of 1949 and enjoy its judicial safeguards. The protection of the Fourth Geneva Convention may also extend to civilians having the nationality of neutral or cobelligerent states when they take up arms against a friendly state. In any case, ‘unlawful combatants’ continue to be protected by Article 3 common to the Four Geneva Conventions of 1949, the customary rule corresponding to Article 75 of 1977 First Additional Protocol as well as human rights rules. Finally the paper discusses the decision handed down by the US Appeals Court for the District of Columbia on 11 March 2003 in Al Odah and Others, which denied the jurisdiction of US courts over the legality of detention of those held at Guantanamo because the territory over which they are detained is not subject to US but Cuban sovereignty.