Journal of International Criminal Justice

Journal of International Criminal Justice Advance Access originally published online on November 22, 2005
Journal of International Criminal Justice 2006 4(1):12-30; doi:10.1093/jicj/mqi088

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Rethinking Guantánamo

Unlawful Confinement as Applied in International Criminal Law

James G. Stewart^*

* BA (Phil), LLB (Hons), Dip. IHL (ICRC), LLM (Centre Universitaire de Droit International Humanitaire). Kind thanks are owed to Marco Sassòli, William Schabas, Claire Harris, James Cockayne, Rebecca Bland and Simon Meisenberg who offered insightful criticisms of an earlier draft without necessarily endorsing errors, oversights or conclusions.

	Abstract

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
Although criticism of US-led detention at Guantánamo Bay has been extensive, little attention has been placed on evaluating the implications of international humanitarian law standards as applied in international criminal law. This paper concludes that there is a striking resemblance between allegations made of Guantánamo and many of the scenarios that have given rise to individual criminal responsibility for unlawful confinement as a grave breach of the Geneva Conventions in other contexts. In this regard, arguments that individuals who do not enjoy prisoner-of-war status fall into a legal vacuum or that international humanitarian law has somehow been rendered obsolete by the ‘War on Terror’ ignore the fact that international criminal precedents unambiguously disagree. If nothing else, an analysis of international criminal law's treatment of unlawful confinement highlights the urgent need to rethink the legal basis for detention at Guantánamo and the risks of individual criminal responsibility for purporting to develop international humanitarian law through unilateral changes in policy rather than formal international law-making processes.

	1. Introduction

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
On 11 January 2002, 20 prisoners captured as part of the United States of America's ‘War on Terror’ were transferred from Afghanistan to a United States-controlled military base in Guantánamo Bay, Cuba.¹ Since then, the number of detainees held at Guantánamo has markedly increased in parallel with international anxiety about the legal basis for their detention, the apparent lack of respect for due process rights and the suggestion that similar practices are widespread elsewhere. Consequently, recent estimates place the total number of individuals detained at Guantánamo at the United States’ behest at somewhere near 520 people, against a backdrop of massive international critique from a variety of quarters.

The refrain from US authorities and its proponents maintains that the detainees are ‘unlawful combatants’,² detained under the auspices of a Presidential Order ostensibly authorized by Congress.³ Although US authorities pledge that detainees are treated humanely, that humanity does not derive from the Geneva Conventions because the Conventions ‘simply [do] not cover every situation in which people may be captured or detained by military forces ... ’.⁴ Similarly, the US administration argues that the ‘paradigm of human rights law is inapplicable to the circumstances of armed conflict in which the detentions at Guantánamo arise’⁵ and, in spite of a long tradition of US control over the territory, the US government has until recently argued that ‘such control does not entitle the aliens held at Guantánamo to the privilege of litigating in United States courts’.⁶

The reasoning has prompted a member of Britain's highest Court to publicly denounce the situation as a ‘monstrous failure of justice’ and Guantánamo as ‘a legal black hole’.⁷ The United Nations Working Group on Arbitrary Detention evidently agreed, confessing that it ‘[could] not but conclude that no legal basis justifies the deprivation of liberty’ of various detainees at the camp.⁸ The Inter-American Commission on Human Rights, likewise, ordered the United States to observe aspects of international humanitarian and human rights law vis-à-vis Guantánamo captives,⁹ and the Presidents of various Bar Associations from at least eight different Organisation for Economic Co-operation and Development (OECD) countries exceptionally engaged in joint and public criticism.¹⁰

Yet, the tendency throughout the now complex legal debate surrounding Guantánamo has been to focus on the applicability of domestic legal protections within the United States,¹¹ international human rights norms¹² and nuanced distinctions in the structure and negotiating history of international humanitarian law.¹³ In so doing, an essential body of law that draws on, interprets and implements these standards has largely escaped scrutiny, despite its clearly expressed supremacy over domestic detention law, its uncontested applicability, an increasingly robust and clear body of jurisprudence that at times bears striking resemblance to the allegations made of Guantánamo and the potential availability of various legal fora capable of exercising jurisdiction over such issues.

This article assesses the conformity of detention practices at Guantánamo with international criminal law. More particularly, it focuses exclusively on previous international practice concerning unlawful confinement as a grave breach of the Geneva Conventions, despite the clear possibility that conduct associated with Guantánamo may violate a wider range of international criminal norms.¹⁴ The paper does not address the much criticized and increasingly discredited decision not to grant any Guantánamo detainees prisoner-of-war status.¹⁵ Instead, it identifies the serious risks of individual criminal responsibility for unlawful confinement of individuals who do not enjoy prisoner-of-war status and the consequent dangers associated with claims that the ‘War on Terror’ has somehow rendered international humanitarian law obsolete.

The analysis remains relevant despite the US Supreme Court's rulings requiring US authorities to afford Guantánamo detainees the opportunity to challenge the grounds of their detention in domestic courts.¹⁶ To an extent, this continuing pertinence derives from the fact that the Court's analysis of unlawful combatant status was premised on highly criticized domestic jurisprudence that pre-dated the entry into force of the Geneva Conventions.¹⁷ But, more importantly and as this paper will show, the Supreme Court's reasoning was both inconsistent with and of only secondary relevance to the interpretation of unlawful confinement in international criminal law.

	2. The Definition of Unlawful Confinement

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
The term ‘grave breach’ denotes a core of prohibitions in the laws of armed conflict, violation of which attracts individual criminal responsibility. Article 147 of Geneva Convention IV defines ‘unlawful confinement of a protected person’ as a grave breach of the Convention, and the offence explicitly features as such in the Statutes of the International Criminal Tribunal for the Former Yugoslavia (ICTY),¹⁸ the International Criminal Court (ICC)¹⁹ and the Iraqi Special Court.²⁰

Unlawful confinement is also criminalized in the majority of domestic legal systems as a consequence of the obligation contained in the Geneva Conventions that compels States Parties to ‘enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention ... ’.²¹ States have fulfilled this obligation through a variety of legislative approaches. In the United States, for example, unlawful confinement is criminalized by section 2441 of Title 18, United States Code, which makes ‘war crimes’ federal crimes and defines the term as including ‘a grave breach in any of the international conventions signed at Geneva 12 August 1949’. Other states implement the offence through reference to the ICC Statute,²² by criminalizing war crimes as defined in ‘customary and conventional international law’²³ or by explicitly prohibiting unlawful confinement in criminal legislation.²⁴

There is thus little doubt that the offence is well established as an offence in convention, custom, statute and legislation. On the other hand, none of the various codifications expands on the circumstances under which unlawful confinement might be committed, rendering recourse to international criminal jurisprudence almost inevitable in plotting the parameters of the offence.

In this regard, the Appeals Chamber of the ICTY has defined unlawful confinement on the basis that ‘clear guidance can be found in the provisions of Geneva Convention IV’,²⁵ most notably Articles 42 and 43. Under the former:

... [t]he internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

Article 43 of Geneva Convention IV, in turn, defines particular procedural protections that act as checks on the detaining power's ability to make such determinations, by requiring, in the relevant part, that:

Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If the internment or placing in assigned residence is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit.

Having identified relevant standards based on these rules, the Appeals Judgment in Delali concluded that the offence of unlawful confinement could be committed in one of two ways, namely where:

[An Accused] has no reasonable grounds to believe that the detainees pose a real risk to the security of the state; or

He knows that they have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not).²⁶

The remainder of this paper addresses each of these elements in relation to detentions at Guantánamo that arise out of the international armed conflict that took place between Afghanistan and Coalition Governments from 7 October 2001.

	3. Guantánamo Detainees as Protected Persons

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Grave breaches of Geneva Convention IV can only be committed against ‘protected persons’. Article 4(1) of Geneva Convention IV defines the term as including:

... those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

Although the exceptions created by Article 4(2) of the Convention may also have some relevance in determining whether Guantánamo detainees constitute ‘protected persons’,²⁷ the more fundamental challenge derives from the US designation of all individuals captured during hostilities in Afghanistan as ‘unlawful combatants’. According to the US Secretary of Defense, ‘technically unlawful combatants do not have any rights under the Geneva Convention [sic.]’.²⁸ Yet, in sharp contrast to the now extensive and deeply polarized political and academic debate surrounding the existence and scope of unlawful combatant status,²⁹ the position adopted in international criminal precedents is markedly more uniform.

In determining the status of hostile individuals not incorporated into the structure of a state during international armed conflict, international criminal law is inspired by the reasoning espoused by the ICRC Commentaries to the Fourth Geneva Convention, which states that:

... [e]very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law.³⁰

On this basis, the Delali Trial Judgment declined to consider as prisoners of war a group of Bosnian Serb detainees who had spontaneously taken up arms to resist the invading forces without having had time to form themselves into regular armed units. Despite the Chamber's expressed doubt as to whether members of the group had at all times carried their arms openly and observed the laws and customs of war, it concluded that they were protected persons, declaring that:

It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied.³¹

In a similar vein, the Blaki Trial Judgement responded to the prosecution's argument that a group of Bosnian Muslim combatants held by the Croatian Defence Council (HVO) were prisoners of war by finding that:

... those who did not enjoy this protection were civilians and thereby enjoyed the protection accorded by the Fourth Geneva Convention.³²

In the Simi Judgment, Trial Chamber II of the ICTY adopted the same thinking in finding that:

... [t]he evidence demonstrates that only a small number of detainees belonged to an armed SDA [Party of Democratic Action] paramilitary formation, giving rise to consideration as to whether they could be classified as combatants. The fact that most of them were arrested from their homes, combined with a lack of evidence that they participated in the armed conflict, clearly shows that they were not combatants, but rather, civilians, and consequently were not taken as prisoners of war.³³

In granting protected person status even to hostile civilians directly engaged in combat or individuals presumed to belong to non-state armed groups, these Judgments certainly acknowledge a detaining party's ability to derogate from particular protections offered to more peaceful protected persons. Article 5 of Geneva Convention IV provides a state or occupying power with the ability to limit certain rights and privileges of an individual protected person definitely suspected of or engaged in activities hostile to the security of the state. Likewise, Article 27 of Geneva Convention IV stipulates that ‘the Parties to the conflict may take such measures of control and security in regard to protected persons as may be necessary as a result of the war’.

However, in applying these restrictions, international criminal law is emphatic that a state's ability to deprive protected persons of benefits enshrined in the Geneva Convention IV does not include the procedural obligations in Article 43 of the Convention, since the latter are specifically intended to verify the continuing existence of ‘a well founded security threat’. In short, Articles 5 and 27 of Geneva Convention IV do not allow for a total abandonment of the Convention. In recognition of this proposition, the Delali Appeals Judgment stated that:

This provision [Article 5] reinforces the principle behind Article 42, that restrictions on the rights of civilian protected persons, such as deprivation of their liberty by confinement, are permissible only where there are reasonable grounds to believe that the security of the State is at risk.³⁴

The Kordi and erkez Judgment independently followed the same approach, in which it emphasized that ‘[c]ivilians interned in accordance with Articles 5, 27 or 42 of Geneva Convention IV should be granted the procedural rights set forth in Article 43 of Geneva Convention IV ... ’.³⁵

The argument that these precedents can be distinguished from detentions made in relation to the ‘War on Terror’ is overstated, since the very function of Articles 5, 27, 42 and 43 is to account for security threats posed by protected persons. As Sassòli concludes, Geneva Convention IV ‘fully takes into account the security needs of a state confronted with dangerous people’.³⁶ The veracity of the claim is perhaps best reflected in the Israeli Supreme Court's seemingly more accurate judicial treatment of the issue in Leah Tsemel et al v. Commander of Ansar Camp. In Leah Tsemel, the Israeli Supreme Court applied Article 78 of Geneva Convention IV to the detention of ‘hostile aliens who belonged to terrorist organisations’.³⁷ Article 78 of Geneva Convention IV more or less replicates the terms of Article 43 of Geneva Convention IV, except that it applies in occupied territories.³⁸

Regrettably, the US Supreme Court in Hamdi made no mention of this reasoning or provisions of Geneva Convention IV more generally. Instead, the Court's reasoning would appear to have perhaps inadvertently compounded the tendency among advocates of unlawful combatant status by relying on US Supreme Court decisions that pre-dated the entry into force of the Geneva Conventions.³⁹ Such arguments find little favour in international criminal law. The Delali Trial Judgment rendered Ex parte Quirin and its domestic progeny of secondary relevance to international criminal law, where it affirmed that:

It is irrelevant for the determination of the instant charge whether, as alleged by the Defence, this detention was in conformity with Bosnian domestic law. The question that the Trial Chamber must address is instead whether the confinement of these civilians was justified under the relevant rules of international humanitarian law.⁴⁰

The Kordi and erkez Trial Judgment adopted the same reasoning in more striking terms. In dismissing two US Supreme Court decisions that addressed wartime detention during the Second World War as inapposite, the Trial Chamber concluded that:

... the [United States] Supreme Court decisions were rendered prior to the adoption of the Geneva Conventions, the Chamber cannot consider these decisions as constituting a precedent with regard to the question of what constitutes unlawful confinement of civilian persons under the Geneva Conventions.⁴¹

The reasoning would seem all the more valid where the US Army's own Field Manual on the Law of Land Warfare, adopted in response to the United States’ ratification of Geneva Convention IV, confirms international criminal law's interpretation. Article 247(b) of the Manual explicitly states that ‘those protected by [Geneva Convention IV] also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war’.⁴²

On this basis, if a court adjudicating charges of unlawful confinement at Guantánamo accepted the validity of the US Administration's announcement on 7 February 2002 that ‘neither the Taliban nor al-Qaida detainees are entitled to POW status’,⁴³ the application of established international criminal law standards would render such detainees ‘protected persons’. In such instances, the individual criminal responsibility of their captors turns on whether there exist reasonable grounds to believe that the detainees posed a real risk to the security of the United States such that their detention was rendered ‘absolutely necessary’ and, if so, whether those responsible for the detention ‘respect[ed] the basic procedural rights of the detained persons’.

	4. Guantánamo Detainees as Threats to Security

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
The first of the two bases on which the Delali Appeals Judgment considered the detention of protected persons unlawful involves a situation in which individuals responsible for the detention had ‘no reasonable grounds to believe that the detainees pose a real risk to the security of the state’.⁴⁴ In determining whether such ‘reasonable grounds’ exist, international war crimes jurisprudence has rightly afforded a wide margin of deference to a state's own subjective appreciation of both security and risk.⁴⁵ For that very reason, the assessment of allegations of unlawful confinement has not involved a reappraisal of the grounds on which each and every individual is purportedly held; nor has it sought to doubt that particular detention facilities where unlawful detention occurs contain even large numbers of civilians legitimately detained. The Delali Appeals Judgment, for instance, accepted evidence indicating that a large number of the civilians in the camp were in the possession of weapons at the time of their capture and were alleged to have committed acts of armed resistance through active participation in hostilities, but refrained from making any finding as to whether the detaining power could legitimately have formed the view that the detention of this category of persons was necessary for the security of the state.⁴⁶ Instead, the Chamber focused on other less ambiguous cases, since:

... [e]ven taking into account the measure of discretion which should be afforded to the detaining power in assessing what may be detrimental to its own security, several of the detained civilians could not reasonably have been considered to pose any sufficiently serious danger to warrant their arrest.⁴⁷

In this sense, the threat posed by selected and identified Guantánamo detainees in no way precludes the possibility that other captives cannot reasonably be considered to pose a sufficiently ‘serious security threat’ that renders their detention absolutely necessary.⁴⁸

In defining the term ‘serious security threat’, international criminal decisions have suggested that ‘the party must have good reason to think that the person concerned, by his activities, knowledge or qualifications, represents a real threat to its present or future security’.⁴⁹ In a similarly liberal fashion, other dicta indicate that mere membership of a subversive organization may suffice to constitute a security threat.⁵⁰ Nevertheless, the same precedents are clear that these grounds require acts that ‘involve material, direct harm to the adversary, rather than merely granting support to the forces of the party with which the civilian is aligned’.⁵¹

It thus seems clear as regards the first of these criteria, namely detention based on activities, knowledge or qualifications, that the terms are to be read as limiting the power of detention to individuals whose activities, knowledge or qualifications will directly harm the detaining power, such as would be the case with ‘terrorists who continue to express their commitment to kill Americans and conduct suicide attacks if released’⁵² or an individual ‘who served as an explosives trainer for al Qaida and designed a prototype shoe bomb for destroying airplanes and a magnetic mine for attacking ships’.⁵³

Conversely, a growing body of official information suggests that a number of other individuals within Guantánamo may be detained purely for their intelligence value as distinct from any ‘material, direct harm’ to the United States. The US government's submissions to the Supreme Court suggest that ‘[i]n the past year and a half, more than 60 Guantánamo detainees who the military has determined should no longer be detained for intelligence-gathering or other purposes have been released or repatriated to the custody of other nations’.⁵⁴ In other instances, US officials are quoted as stating that ‘[t]he objective is to produce a relationship in which the subject perceives that he is reliant on his interrogators for his basic needs and desires. Achieving that objective can take a significant amount of time ranging from months even to years’.⁵⁵ A Secretary of Defense commissioned Working Group charged with evaluating Detainee Interrogations in the Global ‘War on Terror’ even distinguished Guantánamo from other military controlled detention facilities by describing the Cuban centre as an example of ‘strategic interrogation facilities’.⁵⁶ The same distinction was made by White House Counsel Judge Alberto Gonzales during a press briefing, in which he stated that ‘[t]hose select few make their way to Guantánamo for development of their intelligence value’.⁵⁷ And, in the same way, the once commander of Guantánamo, Major-General Geoffrey D. Miller, is said to have declared as recently as May 2004 that:

We’re enormously proud of what we have done at Guantánamo to be able to set that kind of environment where we were focused on getting the maximum amount of intelligence.⁵⁸

It was presumably on this basis that a Senior Red Cross official took the exceptional step of publicly objecting to ‘the fact that the complex [at Guantánamo] is being used as an "investigation centre", not detention centre’,⁵⁹ apparently on the grounds that in some instances, ‘individuals of interest’ were detained who pose little direct threat to security. The evidence is alarming, since, as the US Supreme Court in Hamdi declared, ‘[c]ertainly, we agree that indefinite detention for the purpose of interrogation is not authorised’.⁶⁰

In relation to the membership of a subversive organization criterion, a range of evidence points to the conclusion that numerous Guantánamo detainees bear no relationship to the Taliban or al Qaeda. Human Rights Watch, for example, argues that at least ‘fifty-nine detainees at Guantánamo had no meaningful ties to the Taliban or al-Qaeda’⁶¹ and were simply farmers, taxi drivers and labourers.⁶² Similarly, the Deputy Commander of Camp X-Ray is reported to have accepted that some of the detainees are ‘victims of circumstance’⁶³ and the former operational commander of Guantánamo, Major General Michael E. Dunlavey, is alleged to have travelled to Afghanistan in 2002 to complain that too many ‘Mickey Mouse’ detainees were being transferred to the base.⁶⁴ Other military personnel are more critical. Lieutenant-Colonel Anthony Christino III recently retired after 20 years of service with US Military Intelligence, most immediately as a Senior Watch Officer within the Joint Intelligence Task Force—Combating Terrorism (JITF—CT). In that capacity, Christino was directly charged with supervision of ‘every piece of information that went in or out of the unit’ concerning Guantánamo. He reports that ‘at least two-thirds’ of the 600-and-something detainees held at Cuban base as of May 2004 could be released immediately without hesitation.⁶⁵

But perhaps the most striking aspect of an assessment of security threat posed by specific detainees at Guantánamo lies in the camp's similarity to evidential findings deemed pivotal in previous international criminal law judgments. In applying the tests for unlawful confinement in the Delali Appeals Judgment, the determinative factor was found to be the presence of two particular detainees who ‘appeared so unlikely to pose a security threat that it must have raised doubts as to whether any reasonable grounds has ever existed for their initial detention’.⁶⁶ The detainees included Grozdana eez, a 42-year-old mother of two children who testified that she was neither armed nor a member of any armed group at the time of the military operation against her village, and Sepo Gotovac, a man of 70 years of age.⁶⁷ There is evidence that the Guantánamo detainees include similarly implausible cases. Indeed, even the then United States Secretary of State, Colin Powell, is said to have expressed in writing his dismay that the military is holding ‘one 13-year-old, one 14-year-old, two 15-year-olds, one 16-year-old, an 88-year-old, and a 98-year-old at Guantánamo’.⁶⁸ Several other authoritative sources corroborate aspects of the evidence and share the sentiment,⁶⁹ reinforcing the supposition that in some instances, detention may serve purely intelligence rather than more direct state security purposes.

All in all, publicly available evidence concerning the cases of selected detainees quantitatively surpasses that deemed sufficient to establish ‘reasonable grounds to believe that the detainees do not pose a real risk to the security of the state’ beyond reasonable doubt in a range of previous international criminal trials. In this sense, the detention of several individuals at Guantánamo would seem to satisfy the first of the criteria the Delali Appeals Judgment found to constitute unlawful confinement as a grave breach.

	5. Post-Detention Procedural Requirements

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
According to the test defined by the Delali Appeals Judgment, unlawful confinement may also be committed where an individual ‘knows that [protected persons] have not been afforded the requisite procedural guarantees (or is reckless as to whether those guarantees have been afforded or not)’.⁷⁰ The jurisprudence is clear that the offence can be committed even when the detention may have been initially legitimate and that the relevant procedural guarantees in question derive from Article 43 of Geneva Convention IV.⁷¹

Evidence suggests that Guantánamo detainees have not enjoyed several of these procedural entitlements. For instance, determinations that individuals are unlawful combatants would not seem to have been carried out by an ‘appropriate court or administrative board’, as required by Article 43. The United States Secretary of Defense has revealed that the internal screening process by which the threat posed by individuals held at Guantánamo was initially assessed involved an evaluation by an integrated team of interrogators, analysts, behavioural scientists and regional experts, followed by progressive review by the commander of Southern Command, a panel of experts from the Pentagon and an inter-agency experts group.⁷² Yet, it seems doubtful whether any of the parties constituted an ‘appropriate court or administrative board’. In Krnojelac, for example, the Trial Chamber noted that there was no basis under Article 42 which could be called to justify the deprivations of liberty in question because:

After the initial arrest of the non-Serb detainees, there was no lawful mechanism in place by which the lawfulness of their detention could be reviewed. ‘Interrogations’ were carried out in an atmosphere of terror and fear of mistreatment, and did not constitute a process of review.⁷³

The US Supreme Court in Hamdi found similarly when it declared that ‘[a]n interrogation by one's captor, however effective an intelligence-gathering tool, hardly constitutes a constitutionally adequate fact-finding before a neutral decision-maker’.⁷⁴ This would seem only more true in light of recent evidence from at least one implicated senior army intelligence official indicating that the screening process ‘was flawed from the get-go’.⁷⁵

However, the perhaps most telling indicator that the review process did not constitute a ‘court or administrative board’ stems from its inability to release detainees without the subsequent approval of members of the US executive. The Delali Appeals Judgment seized on precisely this phenomenon as a ground for establishing responsibility for unlawful confinement where it found that the accused in question knew that a Military Investigative Commission established to assess the legality of the detentions under the Geneva Conventions within the elebii camp ‘did not have the power to finally decide on the release of wrongfully detained prisoners’.⁷⁶ As regards Guantánamo, the final referral in the chain of review is to the Secretary of Defense,⁷⁷ thus approximating the review process to the Delali Commission's degree of power, which, according to the ICTY, was unacceptably:

... limited to initiating investigations of the prisoners and conducting interviews with prisoners in order to obtain relevant information concerning other individuals suspected of armed rebellion outside the prison-camp. The members of the Commission did not have any possibility to supervise the actual release of prisoners who were suggested for release by its members.⁷⁸

Perhaps as an attempt at addressing these inadequacies, the US administration announced in February 2004 that it intended to establish an ‘Administrative Review Panel’ that ‘will review each detainee's case annually to determine whether that detainee continues to pose a threat to the United States’.⁷⁹ The US Administration reports that these administrative review panels will continue to carry out this function in parallel with Combatant Status Review Tribunals established in the wake of the Supreme Court's decisions.⁸⁰ However, the Administrative Review Panel's annual review is in direct contradiction to the minimum standards mandated by Article 43 that require review ‘at least twice yearly’. The Administrative Review Panel will also seem to have jurisdiction over a limited category of detainees present at Guantánamo,⁸¹ and will still make mere recommendations to the Secretary of Defense.⁸² In fact, given suggestions by the Pentagon's General Counsel that even if a detainee was tried and acquitted by military commission, that detainee ‘may not necessarily automatically be released’,⁸³ the chances that a Review Panel could enjoy greater potency seem slim.

Even absent these various failings, the decision not to institute such a Review Panel in over two years cannot be read as being consistent with the wording of Article 43 of Geneva Convention IV, which requires review by such an institution ‘as soon as possible’.⁸⁴ The Appeals Chamber in Delali affirmed in this regard that ‘the reasonableness of this period is not a matter solely to be assessed by the detaining power’⁸⁵ and that ‘as soon as possible’ denotes ‘the minimum time necessary to make enquiries to determine whether a view has an objective foundation’.⁸⁶ Aside from the two-year delay in instituting an administrative review panel, it is noteworthy that for the initial four months of the Afghan conflict, the US government made no official pronouncement whatsoever concerning its understanding of the nature of the hostilities, the applicable law or the legal status of individuals detained.⁸⁷

On all these bases, a conservative reading of international criminal law precedents suggests that if some individuals not entitled to prisoner-of-war status were initially legitimately detained at Guantánamo as part of international hostilities in Afghanistan, their continued detention occurs in circumstances under which procedural protections defined by Article 43 of Geneva Convention IV are not met. This, according to an increasingly robust body of international criminal practice, constitutes unlawful confinement.

	6. Conclusion

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
On 16 November 1998, the ICTY sentenced Zdravko Muci to seven years’ imprisonment for unlawful confinement as a grave breach of the Geneva Conventions—a sentence later increased to nine years on appeal. Blagoje Simi was sentenced to 17 years’ incarceration for persecution based in part on unlawful arrest and detention of Bosnian Muslim and Bosnian Croat protected persons. Dario Kordi and Mario erkez were likewise both convicted of unlawful confinement together with other crimes and are presently serving sentences of 25 and 15 years, respectively.

This article has shown a consistent and at times striking resemblance between many of the legal bases that justified relevant aspects of these sentences and circumstances surrounding US-led detention at Guantánamo Bay, Cuba. For instance, Zdravko Muci was convicted for unlawful confinement, in part, as a result of his responsibilities for the detention of two particular individuals for whom there were no ‘reasonable grounds to believe that the detainees pose a real risk to the security of the state’. Credible evidence suggests that Guantánamo contains similarly improbable cases. In fact, the US Administration's apparent detention of ‘individuals of interest’ for purely intelligence-related reasons appears to be inconsistent with international criminal law's interpretation of ‘real risk to the security of the State’ generally. Even in instances in which detainees may have initially been legitimately detained, the failure of US authorities to provide timely review by a court or administrative board that is independent of executive influence closely approximates the circumstances of detention at Guantánamo to incidents that have attracted individual criminal responsibility elsewhere. And alarmingly, the sole basis on which detentions at Guantánamo are distinguished from these international criminal law precedents rests on the contention that Guantánamo detainees constitute ‘unlawful combatants’. As has been seen, international criminal jurisprudence categorically disagrees.

The implications of these conclusions are broad but seemingly ill-considered. Most immediately, the academic and political debate surrounding the existence and scope of ‘unlawful combatant’ status would not seem to have adequately considered which side of the argument is likely to prevail if criminal charges for unlawful confinement are brought. Likewise, wider contentions that the ‘War on Terror’ has rendered international humanitarian law obsolete would seem to have ignored the increasing relevance, at both domestic and international levels, of criminal prosecution based on established interpretations of international humanitarian law standards. In this light, international criminal law's treatment of unlawful confinement not only highlights the urgent need to re-think the legal basis of detention at Guantánamo, but it also underlines the importance of addressing perceived inadequacies of international humanitarian law through formal international law-making processes rather than unilateral changes in policy.

After all, the risks associated with a more independent approach to the amendment and development of international humanitarian law are serious. As the then US Attorney General cautioned in a letter to President Bush dated 1 February 2002 ‘[i]f a court chose to review for itself the facts underlying a Presidential interpretation that detainees were unlawful combatants, it could involve substantial criminal liability for involved US officials’.⁸⁸ The potential that a prosecutor, international or otherwise, might agree is not merely academic. A former Chief Prosecutor for the United Nations International Criminal Tribunals for Rwanda and the former Yugoslavia has publicly affirmed that ‘[e]ven suspected terrorists shouldn't be treated in a manner which is unlawful’.⁸⁹ When provoked as to whether ‘unlawful’ is the appropriate word to describe the Guantánamo process, he replied in a calm but solemn tone, ‘absolutely’.⁹⁰

	Notes

Top Abstract 1. Introduction Notes 2. The Definition of... 3. Guantanamo Detainees as... 4. Guantanamo Detainees as... 5. Post-Detention Procedural... 6. Conclusion

 
1 See Posture Statement of Major General Gary D. Speer, United States Army Acting Commander in Chief United States Southern Command before the 107th Congress Senate Armed Services Committee, 5 March 2002, at 10, available online at http://www.defenselink.mil/dodgc/olc/docs/test02-03-05Speer.rtf (last visited 14 June 2005).

2 The labels ‘Unlawful Combatant’, ‘Enemy Combatant’ and ‘Unprivileged Combatant’ are apparently used interchangeably. See the conclusion to this effect in James R. Schlesinger et al., Final Report of the Independent Panel of Experts to Review DoD Detention Operations, August 2004, at 81, available online at http://www.defenselink.mil/news/Aug2004/d20040824finalreport.pdf (last visited 14 June 2005).

3 Article 1(e) of the Presidential Military Order of 13 November 2001 states that in order ‘[t]o protect the United States and its citizens, and for the effective conduct of military operations and prevention of terrorist attacks, it is necessary for individuals subject to this order pursuant to section 2 hereof to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals’ (emphasis added). Presidential Order, ‘Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism’, Military Order of 13 November 2001, 66 Fed. Reg. 57, 833 (16 November 2001). The order was arguably issued under the auspices of Congress’ Joint Resolution 23 that permitted the President ‘to use all necessary and appropriate force against those nations, organizations, or persons he determine[d] planned, authorized, committed, or aided the terrorists attacks on September 11, 2001 ... ’, Authorization for the Use of Military Force, SJ Res. 23, 107th Cong., 115 Stat. 224 (2001).

4 Statement by the Press Secretary on the Geneva Convention, 7 May 2003, available online at http://www.whitehouse.gov/news/releases/2003/05/20030507-18.html (last visited 14 June 2005).

5 See US pleadings before the Inter-American Commission on Human Rights, ‘Additional Response of the United States to Request for Precautionary Measures—Detainees in Guantánamo Bay, Cuba’, 15 July 2002, at 9, available online at http://www.ccr-ny.org/v2/legal/september_11th/docs/7-23-02GovtResponsetoObservations_andIACHR_Decision.pdf (last visited 14 June 2005).

6 US Government submissions to the Supreme Court in Shafiq Rasul et al. v. George W. Bush et al., ‘Brief for the Respondents in Opposition’, October 2003, at 18.

7 J. Steyn, ‘Guantánamo Bay: The Legal Black Hole’, 53 International and Comparative Law Quarterly (2004), at 11 and 1, respectively.

8 United Nations Working Group on Arbitrary Detention, Opinion No. 5/2003 (United States of America), E/CN.4/2004/3/Add.1, 26 November 2003, at 34. For more generalized findings, see also Report of the Working Group on Arbitrary Detention, E/CN.4/2003/8, 16 December 2002.

9 Inter-American Commission on Human Rights, ‘Detainees in Guantánamo Bay, Cuba Request for Precautionary Measures’, 13 March 2002, available online at http://www.ccr-ny.org/v2/legal/september_11th/docs/3-13-02%20IACHRAdoptionofPrecautionaryMeasures.pdf (last visited 14 June 2005).

10 See The Guardian, ‘The Law and Camp Delta’, 21 August 2003, available online at http://www.guardian.co.uk/letters/story/0,3604,1026073,00.html (last visited 14 June 2005).

11 See J.J. Paust, ‘Judicial Power to Determine the Status and Rights of Persons Detained Without Trial’, 44 Harvard International Law Journal (2003), at 503–532; G.P. Fletcher, ‘Black Hole in Guantánamo Bay’, 2 Journal of International Criminal Justice (JICJ) (2003) 121–132; D.M. Amann, ‘Guantánamo’, 42 Columbia Journal of Transnational Law (2004) 263–348.

12 L. Condorelli and P. De Sena, ‘The Relevance of the Obligations Flowing from the UN Covenant on Civil and Political Rights to U.S. Courts Dealing with Guantánamo Detainees’, 2 JICJ (2004) 107–120; S. Borelli, ‘The Treatment of Terrorist Suspects Captured Abroad: Human Rights and Humanitarian Law’, in A. Bianchi (ed.), Enforcing International Law Norms Against International Terrorism (Oxford: Hart Publishing, 2004) 107–120.

13 See K. Dörmann, ‘The Legal Situation of "Unlawful/Unprivileged Combatants"’, 849 International Review of the Red Cross (2003) 45–74; M. Sassòli, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’, 2 JICJ (2004) 96–106; R.K. Goldman and B.D. Tittemore, ‘Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian and Human Rights Law’, American Society of International Law Task Force on Terrorism, December 2002, available online at www.asil.org/taskforce/goldman.pdf (last visited 14 June 2005); Shafiq Rasul et al. v. George W. Bush President of the United States et al., ‘Brief Amicus Curiae of Law Professors, Former Legal Advisers of the Department of State and Ambassadors, Retired Judge Advocates General and Retired Military Commanders, and Other International Law Specialists in Support of Respondents’ (hereafter Law Professors et al.); J. Yoo, ‘The Status of Soldiers and Terrorists under the Geneva Conventions’, 3 Chinese Journal of International Law (2004) 135–150.

14 Article 147 of Geneva Convention IV also defines deportation, torture, inhuman treatment and wilfully depriving a protected person of the rights of fair and regular trial prescribed in the Convention as grave breaches.

15 Article 5 of Geneva Convention III stipulates that ‘[s]hould any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal’. The United States’ much disputed position is that no such doubt arises. See Pierre Prosper, ‘Prosper Sees Good Progress With Article 98 Bilateral Agreements’, available online at http://usinfo.state.gov/dhr/Archive/2003/Oct/15-289416.html (last visited 14 June 2005). For recent judicial disagreement citing the failure to convene Article 5 Geneva Convention III tribunals as grounds for staying trial by Military Commission, see Salim Ahmed Hamdan v. Donald H. Rumsfeld, Civil Action No. 04–1519 (JR), United States District Court for the District of Columbia, available online at http://news.findlaw.com/hdocs/docs/tribunals/hamdanrums110804opn.pdf (last visited 14 June 2005).

16 See the US Supreme Court Cases in Hamdi et al. v. Rumsfeld, Secretary of Defense et al., No. 03–6696, 28 June 2004; Rumsfeld, Secretary of Defense v. Padilla et al., No. 03–1027, 28 June 2004; Shafiq Rasul et al. v. George W. Bush, President of the United States, et al., No. 03–334, 28 June 2004.

17 According to Justice Scalia, the majority in Hamdi ‘places primary reliance upon Ex parte Quirin’, 317 United States Reports (US) 1 (1942), a World War II case upholding the trial by military commission of eight German saboteurs, one of whom, Hans Haupt, was a US citizen. The case was not this Court's finest hour. The Court upheld the commission and denied relief in a brief per curiam issued the day after oral argument concluded [...], a week later the Government carried out the commission's death sentence upon six saboteurs, including Haupt. The Court eventually explained its reasoning in a written opinion issued several months later’, Hamdi, supra note 16, Justice Scalia Dissenting, at 17.

18 See Art. 2(g) ICTYSt.

19 See Art. 8(2)(a)(vii) ICCSt.

20 See Art. 13(a)(7) of the Statute of the Iraqi Special Tribunal.

21 Article 146 of the Geneva Convention IV.

22 In the United Kingdom, Art. 51 of the International Criminal Court Act 2001 (UK) states that ‘[i]t is an offence against the law of England and Wales for a person to commit genocide, a crime against humanity or a war crime’. Article 50(1) of the Act defines the term ‘war crime’ as ‘a war crime as defined in article 8.2 [of the ICC Statute]’.

23 Article 6 of the Canadian Crimes Against Humanity and War Crimes Act 2000 defines ‘war crimes’ as including ‘an act or omission committed during an armed conflict that, at the time and in the place of its commission, constitutes a war crime according to customary international law or conventional international law applicable to armed conflicts ...’ (emphasis added).

24 The Australian International Criminal Court (Consequential Amendments) Act 2002 implements ICC-based crimes into the Australian criminal code offence by offence. Section 268.33 of the Act prohibits unlawful confinement.

25 Judgment, Delali (IT-96–21-A), Appeals Chamber, 20 February 2001, 320.

26 Ibid., 378.

27 Article 4(2) of Geneva Convention excludes nationals of neutral and co-belligerent states from the definition of ‘protected persons’ when ‘the State of which they are nationals has normal diplomatic representation in the State in whose hands they are’. Whilst many Guantánamo detainees herald from various states that were either neutral or co-belligerent during the Afghan conflict, it seems unlikely that the diplomatic representation afforded them is consistent with international criminal jurisprudence's insistence on ‘effective and satisfactory diplomatic representation’. See Judgment, Blaki (IT-94–14-A), Appeals Chamber, 29 July 2004, 186.

28 Secretary of Defense, News Briefing, 11 January 2002, available online at http://www.defenselink.mil/transcripts/2002/t01112002_t0111sd.html (last visited 14 June 2005).

29 For reasoned accounts of the US legal position, see Yoo, supra note 13 and Law Professors et al., supra note 13. For commentary to the contrary, see G.H. Aldrich, ‘The Taliban, Al Qaeda, and the Determination of Illegal Combatants’, 96 American Journal of International Law (2002) 891–898; L. Vierucci, ‘Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantánamo Bay Detainees are Entitled’, 1 JICJ (2003) 284–314; K. Dörmann, ‘The Legal Situation of ‘Unlawful/Unprivileged Combatants’, 849 International Review of the Red Cross (2003) 45–74; M.H. Hoffman, ‘Terrorists are Unlawful Belligerents, Not Unlawful Combatants: A Distinction with Implications for the Future of International Humanitarian Law’, 34 Case Western Reserve Journal of International Law (2002) 227–230; J.J. Paust, ‘War and Enemy Status After 9/11: Attacks on the Laws of War’, 28 Yale Journal of International Law (2003) 325–335; J.J. Paust, ‘Post-9/11 Overreaction and Fallacies Regarding War and Defense, Guantánamo, the Status of Persons, Treatment, Judicial Review of Detention, and Due Process in Military Commissions’, 79 Notre Dame Law Review (2004) 1335–1364; M. Sassòli, ‘The Status of Persons Held in Guantánamo under International Humanitarian Law’, 2 JICJ (2004) 96–106; M. Sassòli, ‘"Unlawful Combatants": The Law and Whether it Needs to be Revised’, 97 American Society of International Law Proceedings (2003) 196–203. G. Rona, ‘Interesting Times for International Humanitarian Law: Challenges from the "War on Terror"’, 27 The Fletcher Forum of World Affairs (2003) 55–74; E.J. Wallach, ‘The Logical Nexus between the Decision to Deny Application of the Third Geneva Convention to the Taliban and Al Qaeda and the Mistreatment of Prisoners in Abu Ghraib’, 36 Case Western Reserve Journal of International Law (2004) 541–638.

30 Commentaries to Geneva Convention IV, at 51, cited with approval in Judgment, Delali (IT-96–21-T), Trial Chamber, 16 November 1998, 271.

31 Ibid.; see also Judgement, Branin (IT-99–36-T), 1 September 2004, 125.

32 Judgment, Blaki (IT-95–14-T), Trial Chamber, 3 March 2000, 147.

33 Judgment, Simi (IT-95–9-T), Trial Chamber, 17 October 2003, 659.

34 Delali Appeals Judgment, supra note 25, 321 (emphasis added).

35 Judgment, Kordi and erkez (IT-95–14/2-T), Trial Chamber, 26 February 2001, 286 (emphasis added).

36 In particular, the approach still allows civilians who participate directly in hostilities to be legitimately attacked, does not bar their punishment for unlawful participation in those hostilities, permits administrative detention without criminal trial for imperative security reasons and derogations from protected substantive rights of civilians within the territory of a state and from communication rights within occupied territory. See Sassóli, ‘"Unlawful Combatants": The Law and Whether it Needs to be Revised’, supra note 29, at 198.

37 See Leah Tsemel et al. v. Commander of Ansar Camp, HCJ 593/82 (1983) reprinted in the Palestine Yearbook of International Law, Volume 1 (1984), at 164–174.

38 Article 78 reads, in relevant part, that ‘[i]f the Occupying Power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said Power’.

39 See, in particular, Ex Parte Quirin, 317 US 1 (1942), available online at http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=317&invol=1 (last visited 14 June 2005).

40 Delali Trial Judgment, supra note 30, 1130.

41 Kordi Trial Judgment, supra note 35, 291.

42 Department of the Army, Field Manual 27–10: The Law of Land Warfare, Washington, DC, 18 July 1956. Evidence also indicates that only months prior to Guantánamo's establishment, the Commander of Operation Enduring Freedom explicitly ordered that the Geneva Conventions were to be applied to all captured individuals in Afghanistan in accordance with this more orthodox interpretation. According to the US-commissioned Schlesinger Report, the order issued by the Commander of CENTCOM on 17 October 2001 specifically stated that ‘[i]f the individual was found not to be entitled to Geneva Convention III protections, he or she might be detained and processed under the US criminal code, a procedure consistent with Geneva Convention IV’, Schlesinger Report, supra note 2, at 80 (emphasis added).

43 ‘Fact Sheet: Status of Detainees at Guantánamo’, 7 February 2002, available online at http://www.whitehouse.gov/news/releases/2002/02/20020207-13.html (last visited 14 June 2005).

44 Delali Appeals Judgment, supra note 25, 378.

45 The Kordi and erkez Trial Judgment, for example, emphasized ‘it is, to a large extent, up to the Party exercising this right to determine the activities that are prejudicial to the external or internal security of the State’, Kordi Trial Judgment, supra note 35, 254.

46 Delali Appeals Judgment, supra note 25, 323.

47 Ibid. (emphasis in original).

48 For an official précis of the threats posed by a small number of individuals detained at Guantánamo, see Department of Defense, ‘Guantánamo Detainees’, 16 March 2004, available online at http://usinfo.state.gov/dhr/Archive/2004/Mar/17-718401.html (last visited 14 June 2005).

49 Delali Trial Judgment, supra note 30, 577 (emphasis added).

50 See, e.g. the Kordi and erkez Trial Judgment, which states that ‘[...] if activities threatening the security of the State, such as subversive activities or direct assistance to the enemy, may permit a Party to intern people or place them in assigned residence—but only if it has a serious and legitimate reason to think that they are members of a subversive organization ... ’, Kordi Trial Judgment, supra note 35, 284.

51 Delali Trial Judgment, supra note 30, 568. The full passage reads: ‘[c]learly, a civilian cannot shoot a passing enemy soldier, secrete a bomb in the enemy encampment, or otherwise directly and intentionally harm his enemy and hope to retain all the protections of the Fourth Geneva Convention. However, all of these acts involve material, direct harm to the adversary, rather than merely granting support to the forces of the party with which the civilian is aligned.’

52 16 March 2004 Statement, supra note 48.

53 Ibid.

54 US Government submissions to the Supreme Court in Shafiq Rasul et al. v. George W. Bush et al., ‘Brief for the Respondents in Opposition’, October 2003, at 4 (emphasis added).

55 Government's Motion for Reconsideration in Part (January 9, 2003), cited in Human Rights First, ‘Assessing the New Normal: Liberty and Security for the Post-September 11 United States’, September 2003, at 67.

56 Department of Defense Working Group Report on Detainee Operations, ‘Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy and Operational Considerations’, 4 April 2003, at 70, available online at http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf (last visited 14 June 2005).

57 See ‘Press Briefing by White House Counsel Judge Alberto Gonzales, DoD General Counsel William Haynes, DoD Deputy General Counsel Daniel Dell’Orto and Army Deputy Chief of Staff for Intelligence General Keith Alexander’, Office of the Press Secretary of the White House, 22 June 2004, available online at http://www.whitehouse.gov/news/releases/2004/06/20040622-14.html (last visited 14 June 2005).

58 D. Rose, Guantánamo: America's War on Human Rights (London: Faber and Faber, 2004), at 82.

59 Neil A. Lewis, ‘Red Cross Criticizes Indefinite Detention In Guantánamo Bay’, 10 October 2003, available online at http://query.nytimes.com/gst/abstract.html?res=F7081EFE3F5B0C738DDDA90994DB404482 (last visited 14 June 2005).

60 Hamdi, supra note 16, at 13.

61 Human Rights Watch, Letter to Donald Rumsfeld, 6 March 2003, available online at http://www.hrw.org/press/2003/03/us030603-ltr.htm (last visited 14 June 2005).

62 Human Rights Watch, ‘United States: Guantánamo Two Years On—US Detentions Undermine the Rule of Law’, 9 January 2004, available online at http://www.hrw.org/english/docs/2004/01/09/usdom6917.htm (last visited 14 June 2005).

63 K.Q. Seelye, ‘A Nation Challenged: Captives—An Uneasy Routine at Cuba Prison Camp’, New York Times, 16 March 2002.

64 G. Miller, ‘Many Held at Guantánamo Not Likely Terrorists’, Los Angeles Times, 22 December 2002, available online at http://www.latimes.com/la-na-gitmo22dec22,0,2294365.story (last visited 14 June 2005).

65 D. Rose, Guantánamo: America's War on Human Rights, supra note 58, at 42–43. For practical illustrations of individual cases that appear to support the conclusion, see Miller, supra note 64.

66 Delali Trial Judgment, supra note 30, 1133.

67 Ibid.

68 B.B. Auster and K. Whitelaw, ‘Terror's Cellblock’, US News and World Report, 12 May 2003.

69 See International Committee of the Red Cross, ‘Operational Update: US Detention Related to the Events of 11 September 2001 and its Aftermath—The Role of the ICRC’, 26 July 2004; see also The Guardian, ‘Cuba? It Was Great, Say Boys Freed from US Prison Camp’, 6 March 2004, http://www.guardian.co.uk/guantanamo/story/0,13743,1163435,00.html (last visited 14 June 2005).

70 Delali Appeals Judgment, supra note 25, 378.

71 See ibid., 377.

72 Department of Defense Statement, ‘Briefing on Detainee Operations at Guantánamo Bay’, 13 February 2004, available online at http://www.defenselink.mil/transcripts/2004/tr20040213-0443.html (last visited 14 June 2005) (hereafter ‘13 February Briefing’).

73 Judgment, Krnojelac (IT-97–25-T), Trial Chamber, 15 March 2002, 123 (emphasis in original).

74 Hamdi, supra note 16, at 31.

75 Lieutenant-Colonel Anthony Christino III (retired) cites the youth of interrogators, lack of training, cultural difference, inadequate translation facilities and strong incentives favouring detention as justifying the flawed nature of the screening process. D. Rose, Guantánamo: America's War on Human Rights, supra note 58, at 43–48. For apparently corroborative practical evidence, see Miller, supra note 64.

76 Delali Appeals Judgment, supra note 25, 382.

77 According to the official Statement made by Principal Deputy Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, Paul Miller, and Army Major General Geoffrey D. Miller, Commander, Joint Task Force Guantánamo, ‘[e]ach one of the interagency experts votes on the [screening] recommendation and the entire package is then sent up to the Secretary of Defense or his designee for review. A decision is then made on whether somebody will be released, transferred or remain in detention’ (emphasis added), 13 February Briefing, supra note 72.

78 Delali Trial Judgment, supra note 30, 1137.

79 Secretary Rumsfeld Remarks to Greater Miami Chamber of Commerce, 13 February 2004, available online at http://www.defenselink.mil/transcripts/2004/tr20040213-0445.html (last visited 14 June 2005).

80 Defense Department Background Briefing on the Combatant Status Review Tribunal, 7 July 2004, available online at http://www.defenselink.mil/transcripts/2004/tr20040707-0981.html (last visited 14 June 2005).

81 According to senior military and government officials, the categories of detainees at Guantánamo include ‘those who will potentially be eligible for release, those who will be eligible for transfer to their foreign governments, and those who will remain in continued detention’ (emphasis added). The same officials state that the envisaged Administrative Panel will only assess the latter category. See 13 February Briefing, supra note 72. More recently, the Los Angeles Times reports that ‘[d]espite pledging yearly reviews for all prisoners held by the US military at Guantánamo Bay, Cuba, Pentagon officials tentatively agreed during a high-level meeting last month to deny that process to some detainees and to keep their existence secret "for intelligence reasons," senior defense officials said Thursday’, Los Angeles Times, ‘Pentagon Reportedly Aimed to Hold Detainees in Secret’, 10 July 2004.

82 Principal Deputy Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, Paul Miller, and Army Major General Geoffrey D. Miller state that ‘the panel will consider all of the information, including intelligence information gained on the detainee and the information presented by the detainee and his government, and to make an independent recommendation about whether the detainee should be held’ (emphasis added), 13 February Briefing, supra note 72.

83 US Department of Defense, News Transcript, ‘DoD News Briefing on Military Commissions’, 2