© 2004 by Oxford University Press
Symposium on the Guantánamo Entanglement |
The Status of Persons Held in Guantánamo under International Humanitarian Law
1 University of Quebec in Montreal, Canada
Every component of the ‘war on terrorism’, every situation in which persons held in Guantánamo were involved and every individual detained there have to be qualified separately. Many persons held in Guantánamo are not at all covered by international humanitarian law (IHL). Others benefit from the fundamental guarantees of IHL of non-international armed conflicts, which do not offer a legal basis for their detention - an issue dealt with by domestic law. Those persons who were arrested in Afghanistan are protected by IHL of international armed conflicts. In such conflicts, there are two categories of ‘protected persons’: combatants, who become prisoners of war protected by the Third Geneva Convention if they fall into the power of the enemy; and civilians protected by the Fourth Geneva Convention when in enemy hands. The US administration claims that the persons it holds in Guantánamo are neither combatants nor civilians, but ‘unlawful combatants’. However, no one can fall in between the two aforementioned Conventions and therefore be protected by neither of the two. There are good reasons to consider the captured Taliban as prisoners of war. As for the al Qaeda members captured in Afghanistan, it may be justified to deny them prisoner of war status, on a number of legal grounds. However, as protected civilians, they may not be deported to Guantánamo, but may be detained in Afghanistan for the prosecution and punishment of criminal offences (including for having directly participated in hostilities); or they may be interned for imperative security reasons, upon individual decision made in a regular procedure which must include a right of appeal.