Abstract
The belief that humanitarian norms apply to prisoners of war and others detained during armed conflicts has eventually, achieved near-universal acceptance. Most famously realized in the various Geneva Conventions negotiated in the wake of the two world wars, these norms confer upon detainees both substantive rights and the right to a judicial determination of their proper status, thereby providing an unsurprising level of protection to those who are among the most vulnerable of the victims of war. Knoll, et al (1970).
Under the Geneva Conventions position of individual prisoners determines what rights they are entitled to. The rights of POWs vary considerably from those of so-called unlawful or no privileged combatants. Nevertheless, all detainees may be put on trial for war crimes, crimes against humanity, and criminal acts unrelated to the armed conflict. Michael J. Matheson, (2004).Similarly, all persons in detention, must be treated compassionately, in a humane manner regardless of their status. “An important measure to ensure humane treatment, provided under the Geneva Conventions, is to permit visits by the International Committee of the Red Cross and for the detaining government to follow their recommendations”. Aspen Institute (1989).
According to Goldstone, Richard (1997) pp15-24 the, “Third Geneva Convention specifies the rights and privileges of POWs while the unlawful combatants are protected under the Fourth Geneva convention, customary international law and, where applicable, Protocol I to the Geneva Conventions.” The US administration is not a party to Protocol I, the U.S. administration recognizes its provisions as part of fundamental international law; particularly relevant is article 75 on fundamental guarantees, that outlines the basic normalcy of humane treatment and due process of law required of all persons affected by the conflict, despite of their status.
“However the United States of America has come under heavy condemnation for her treatment of captured fighters of war. The government has placed the POW under brutal conditions and consequently labeled these captives as detainees in bid to execute criminality against these war prisoners” Goldstone, Richard (1997)
The rights and protections granted to POWs
Humane Treatment
POWs must be humanely cared for at all times. They must be sheltered against acts of violence or threats, pressure and against insults or public inquisitiveness. Aspen Institute (1989). They should be kept in under the same conditions as those of the forces of the detaining Power in the same areas. In particular, “the premises provided for the use of prisoners of war…shall be entirely protected from dampness and adequately heated and lighted.” (Third Geneva, Arts. 13, 25, 34). “Nonprivileged combatants are entitled to humane treatment as well. While the prisoners can be denied certain privileges that would compromise security, such restrictions should be completely essential, and should not lead to cruel or humiliating treatment” Levie, Howard S. (2006)
Interrogation
The detaining power has a right to interrogate POWs and they are only required to make available their family name, first names, grades, date of birth, and their army, regimental, personal or serial number during questioning. Aspen Institute (1989). POWs are not required to provide additional information.
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. (Third Geneva, Art. 17).
However the nonprivileged or unlawful combatants are not entitled to these protections under interrogation as POWs; but, like all the other detainees, they are protected from torture and other cruel, inhuman or degrading treatment as stipulated in international human rights law and customary international law. Levie, Howard S. (2006). Article 2 of the Convention against Torture, which the U.S. has approved, states: “No exceptional circumstance whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Violation of this article is a criminal offense of widespread jurisdiction.
Prosecution
POWs cannot be tried or punished simply for their participation in the armed conflict; they may be prosecuted for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law. Levie, Howard S. (2006) POWs are entitled to substantial legal protections during the trial: they have the right to be tried before the same courts and facing the same procedures that the detaining power’s military personnel would face, offering “the essential guarantees of independence and impartiality.” Michael J. Matheson, (2004). They are entitled to experienced counsel to represent them at the trial, and must be informed of the charges against them. POWs are also entitled to have an appeal of their conviction and sentence.
POW status provides security only for the act of taking up arms against opposing military forces, and if that is all a POW has done, then repatriation at the end of the conflict would be required. But as Article 82 of Third Geneva explains, POW status does not protect detainees from criminal offenses that are applicable to the detaining powers’ soldiers as well. Levie, Howard S. (2006).
That is, if appropriate evidence can be collected, the United States would be perfectly entitled to charge the Guantanamo detainees with war crimes, crimes against humanity, or other violations of U.S. criminal law, whether or not they have POW status. As Article 115 of the Third Geneva Convention explains, POWs detained in connection with criminal prosecutions are entitled to be repatriated only “if the Detaining Power [that is, the United States] consents.” Levie, Howard S. (2006)
Nonprivileged or unlawful combatants may be charged with criminal offenses arising out of their participation in the armed conflict because they are not entitled to the immunity that is often called the “combatant’s privilege.” Michael J. Matheson, (2004) pp36.Like POWs, they can also be charged with committing war crimes, crimes against humanity, and common crimes or other serious offenses. While nonprivileged combatants are not entitled to the extensive trial rights of POWs under the Third Geneva Convention, they are entitled to a just and normal trial and the trial protections provided by the Fourth Geneva Convention.
It is a fundamental provision of the Geneva Conventions that all detainees are entitled to “all the judicial guarantees recognized as indispensable by civilized peoples.” (Third Geneva, Art. 14). Nonprivileged combatants are entitled to trial before a properly constituted, non-political military court, to be informed of the charges against them, to present their defense and call witnesses, to be assisted by qualified counsel of their own choice, to have an interpreter, and to mount an appeal against the conviction and sentence. As an exceptional measure, trials may be held in camera if the security of the state so requires.
No country as ever given express rights to habeas corpus to POWs since the beginning of the Geneva Conventions. Levie, Howard S. (2006)pp66. Moreover, such action is not guaranteed by the U.S. Constitution. The Supreme Court ruled in 2004 that, at most, some detainees were covered by a statutory privilege to habeas corpus. The Court concluded, in other words, that Congress had inherently bestowed habeas corpus rights to certain individuals, but the Military Commissions Act of 2006 repealed that privilege and, so far, Congress has not acted to reinstate it.
Writs of habeas corpus
The right of writs of habeas corpus is granted in Article I, Section 9, clause 2 of the Constitution, which states, “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it”. Aspen Institute (1989). The writ requires that a prisoner be brought before the court of law to determine whether or not he had been lawfully imprisoned and if not he or she should be released from prison. A habeas corpus petition is a petition filed with a court by a person who challenges his detention or imprisonment or the detention of some one else and it has to prove that the court made a legal or factual error in ordering detention or imprisonment. The right is granted constitutionally to a person to present evidence before a court that he or she has been wrongly imprisoned.
In the early days of the U.S. Civil War President Abraham Lincoln suspended writs of habeas corpus. After Japan attacked Pearl Harbor, President, Franklin Delano Roosevelt (FDR) signed Executive Order 9066, authorizing the transfer of all Japanese Americans to chosen sites around the United States. On Oct. 17, 2006, President Bush signed a law suspending the right of habeas corpus to persons determined by the United States to be an “enemy combatant” in the Global War on Terror. Levie, Howard S. (2006) pp22 Both presidents based their action on the dangers of war, and both presidents faced sharp criticism for carrying out what many believed to be an attack on the Constitution.
President Bush’s action drew severe criticism, mainly for the law’s failure to specifically designate who in the United States will determine who is and who is not an “enemy combatant.” Levie, Howard S. (2006) pp27
Suspension during the Civil War and Reconstruction
In a reaction to riots, local militia actions and the threat that the state of Maryland would break away from the Union and leave the nation exposed to a hostile territory Abraham Lincoln suspended the habeas corpus on April 27, 1861.These actions of the president were also was inspired by requests made by the military to set up military courts to rein in Peace Democrats, and everyone else in the Union who supported the Confederate States of America. But although this decision was challenged and overturned by the US circuit court in Maryland, the president ignored the order. Levie, Howard S. (2006)pp74.
Also, inorder to spur industrial growth and preserve order brought about by recession in the South, Jefferson Davis also suspended habeas corpus and imposed martial law in the Confederacy. In the early 1870s, President Ulysses S. Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act. Daniels, Roger. (2004).pp56-64
Japanese treatment during World War II
The Japanese Americans were mercilessly treated during the world war II, an experience that left the American human rights record in question. On December 7, 1941, after Japan attacked Pearl Harbor, the then President, Franklin Delano Roosevelt (FDR) signed Executive Order 9066, sanctioning the transfer of all Japanese Americans to chosen sites around the United States. This executive order increased the anti- Japanese sentiments that had been growing in the US and led to internment of Japanese Americans many of who were US citizens. Daniels, Roger. (2004)pp14
After they were gathered in the camps, all the internees had their citizenship rights revoked and were treated as enemy aliens, supplied with poor living conditions and minimal wages in direct contravention of the Third Geneva convention that they be treated humanly. Levie, Howard S. (1993) This led to demonstrations in the Manzanar relocation centre in December 1942 and in October 1942 when the internees were banished to the Tule Lake Relocation Center in north California.
As a result of this , Jackman (1957)observed that “Major disturbances started being witnessed due to poor organization in Manzanar.On the other hand the unkindness of the authorities at Tule Lake caused the Japanese Americans to become hostile, thus promoting maturation of insurgencies in its internees. As a matter of fact it was the government by their mistreatment of the internees that led to the Japanese Americans to hold demonstrations.”
Again in February 1942 the government called for the immediate evacuation of the Japanese Americans, without giving any sufficient explanations. Even the Nisei, the American citizens of Japanese descent otherwise known as the second generation of Japanese immigrants, were forced to desert their homes.
The American government used cruel methods when handling the Japanese Americans shortly after the command for their mass departure was issued. Daniels, Roger.(2004) observed that“ Many internees, especially the Issei, the first generation of Japanese immigrants, reported that the administration had caused them physical and psychological damages beginning directly after they were arrested on December 7, 1941”.Internees also stated that at one camp, physicians administered unwanted medications and questionable injections.Jackman, Norman R. (1957)
To the outside world the, authorities seemed were seen to be treating the internees with utmost respect since they were allowed to communicate their views through the free press at Manzanar but on the other hand the government was “again confining the internees without appropriate explanation by obstructing their right for freedom of press.” Feeley, Francis McCollum. (1999) “Resistance by the ‘submissive’ Japanese was depicted as sporadic and uncharacteristic.” Jackman, Norman R. (1957)
Unlike the evacuees, the administration supported the need for the relocation of all Japanese Americans, including the Nisei, despite the fact that “no Nisei in Hawaii were ever convicted of any crime of spying or espionage.” Kashima, (2003). Kurihara, a veteran as well as an American citizen, was exasperated by the government’s lack of respect for Japanese Americans, especially for those who had given up their lives for the United States. The unexpectedness of the mass departure was surprising to the Japanese Americans and caused most of them to view the American authorities in a plainly different light since the American government was treating those who had risked their lives for the United States as enemy aliens. The harsh living conditions that they were subjected led many to desire for life in Japan. Jackman (1957).
An additional source of tension resulted from the administration’s infringement on the personal privacy of the Japanese Americans. Even though the internees had never been proven as treacherous, white Americans were unwavering in believing that it was necessary to separate the Japanese Americans from the greater population of the United States and assign them no emancipations. Feeley, Francis McCollum. (1999) pp34-35.
Defining the Japanese Americans as a collectively unassimilable group, this constricted perspective of thinking was built on racist values. Jackman, Norman R. (1957) Discontent was stirring throughout the camps. Avoiding the consciousness of its unlawful activities, the American government did not want to acknowledge that they were mistreating the internees. Prompting exasperation in an even more excessive way, the registration method and the loyalty questionnaire typified how the administration misused their authority and demanded unreasonable ultimatums of the internees.
The inhumane treatment of the camps had caused the general self-esteem of the Japanese to depreciate, sparkling uncertainty when the evacuees decided if they would offer themselves to the American military. A prime example of the misadministration in the camps took place in Manzanar in late 1942 when the center supervisor progressively removed the sugar that was allocated for the internees with babies from the camp.
According to Jackman, Norman R. (1957),“Although the Japanese tradition does not encourage controversy and opposition, these Japanese internees were moved to partake in some form of protest in order to defend their individual rights. After one year of predominantly non-physical arguments, aggressive violence erupted between the American governmental forces and the Japanese people restrained in concentration camps in late 1942.” The mounting tension between the Japanese American Citizens League (JACL) who supported the administration and a group of Issei and Kibei ultimately broke out into the Manzanar Riot of December 1942. Although chosen as model Japanese Americans, the JACL members did not effectively articulate the internees’ concerns in the camps.
Forming a united front, the internees hoped to convey how they were all opposed to the absurd conditions of the camp. Putting the internees, who were dedicated enough to demand respect, in more restrictive settings gave those evacuees additional motivation to pressure the administration. In late October, Tule Lake residents grew infuriated when they learned that the authorities were not following camp regulations and updating the center equipment when necessary. Jackman (1957)
Instead of mounting them on the designated farm truck, the Tule Lake Administrator sold the new tires, and consequently the old tires caused a truck accident where twenty internees were injured and one Japanese man died. When the administration did not recognize a public funeral for the dead man, there was not a calm and passive face among the Japanese internees. Furious at the entire situation, 14,000 of the Japanese internees at Tule Lake went on strike and refused to harvest their assigned crops. Jackman, Norman R. (1957)
An even greater uprising occurred after the Tule Lake internees witnessed two semi-truckloads of food being taken out of camp by the Caucasians. In order to prevent the theft of more food, the Japanese internees thought that they should guard the warehouse. The administration was continually growing more fearful of the strength of the Japanese authority figures were able to recognize one of the instances where camp administration officials were unjustly treating the Japanese Americans.
Placed in concentration camps where their individual rights were not considered, the outspoken and honorable internees had no choice but to rebel against the administration. Facing miserable living conditions and regarded as inferior creatures, these Japanese Americans felt responsible to defend their rights as human beings devoted to the United States. The administrative force, composed of Caucasians who were always yearning dominance over the evacuees, posed a challenging threat to the Japanese Americans.
“The Japanese Americans faced a cultural control that prescribed to them a decidedly inferior status.” Feeley, Francis McCollum. (1999) By October 1943, the internees attempted to overturn the authorities at Tule Lake segregation center, but many of the commanding officials had been swept up in the popular belief that all people of Japanese ethnicity deserved to be detained.
Bush’s Suspension of Habeas Corpus
On Oct. 17, 2006, President Bush signed a law suspending the right of habeas corpus to persons determined by the United States to be an enemy combatant in the Global War on Terror. His actions were heavily censured, because the law did not specifically state who in the United States will decide who is an enemy combatant. Levie, Howard S. (2006) The President suspended writs of habeas corpus through his support and signing into law of the Military Commissions Act of 2006.
The bill grants the President of the United States almost unlimited authority in establishing and conducting military commissions to try persons held by the U.S., and considered to be unlawful enemy combatants in the Global War on Terrorism. In addition, the Act suspends the right of internees. Finally American unlawful enemy combatants to present, or to have presented in their behalf, writs of habeas corpus.
Distinctively, the Act states, “No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination.” Levie, Howard S. (2006)
Importantly, the Military Commissions Act does not affect the of writs for habeas corpus already filed in federal civilian courts on behalf of persons held by the U.S.as unlawful enemy combatants. The Act only suspends the accused person’s right to present writs of habeas corpus until after their trial before the military commission has been completed. The Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism November 13, 2001 Presidential Military Order purported to give the President of the United States the power to detain non-citizens suspected of connection to terrorists or terrorism as an enemy combatant.
As a result of this, such person could be held for an indefinite period, without charges being preferred against him or her, without a court hearing, and without prerogative of a legal advisor a situation challenged by several legal and constitutional scholars as being in direct contravention with the provisions of habeas corpus, and the United States Bill of Rights. As a result it was no surprise that the court re-affirmed the right of US citizen to habeas corpus even when declared an enemy combatant in ‘‘Hamdi v. Rumsfeld”, 542 U.S. 507 (2004).
In ‘‘Hamdan v. Rumsfeld”, 548 U.S.(2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the Guantanamo military commission set up by the George W. Bush administration to try Guantanamo Bay detainment camp “violate both the UCMJ and the four Geneva Conventions. In a 5-3 ruling the Court rejected Congress’s attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Though Congress had previously passed the Detainee Treatment Act of 2006 which stated in Section 1005(e), “Procedures for Status Review of Detaineed Outside the United States.”: The Bush administration is the world’s leading violator of the provisions of the Geneva Conventions regarding the treatment of prisoners of war.
It is illegally holding hundreds of Taliban soldiers captured in Afghanistan at Guantanamo Bay in Cuba. Michael J. Matheson, (2004) When the first of the detainees arrived in Guantanamo in January 2002, the Pentagon released photographs and footage of them in orange jumpsuits, kneeling before US soldiers, shackled, handcuffed and wearing blacked-out goggles over their eyes and masks covering the mouth and nose. The images shocked world opinion, but Bush, Rumsfeld and Powell refused to recognize the detainees as POWs.
On the same day that Bush and Rumsfeld attacked Iraq’s filming of American POWs, about 30 more detainees were flown from Afghanistan to Cuba. According to Amnesty International, “This brought to about 660 the number of foreign nationals held in the base. They come from more than 40 countries. Most were taken into custody during the international armed conflict in Afghanistan. Some have been held in Guantánamo, without charge or trial, and without access to lawyers, relatives or the courts, for more than a year. Their treatment has flouted international standards.” Levie, Howard S. (2006).
As required under Article 5 of the Third Geneva Convention, the US government from the beginning refused to have the status of the Taliban captives determined by a capable tribunal. Levie, Howard S. (2006) It unilaterally declared them to be terrorists and unlawful combatants, terms that are not used in the Conventions even though they were fighting with the armed forces of the Taliban government, then the UN-recognized administration of Afghanistan, which was a party to the Conventions. Cohen, Stanley (1996).
In its definition of POWs, Article 4 of the Conventions specifically includes “members of militias or volunteer corps forming part of a country’s armed forces, as well as organized resistance movements and inhabitants who, of your own accord, take up arms to oppose invading forces, without having had time to form themselves into regular armed units. Feeley, Francis McCollum. (1999). “Despite condemnation by UN Human Rights Commissioner the Inter-American Commission on Human Rights, and the International Committee of the Red Cross (ICRC), the most reliable body on the stipulations of the Geneva Conventions the US government maintained its stance” Levie, Howard S. (2006).
The US continues to hold the Guantanamo detainees in poor conditions, most of them incarcerated in tiny cells for 24 hours a day and reportedly allowed to exercise in manacles for only 30 minutes a week pointing to clear violation of the 1949 Geneva Conventions. Michael J. Matheson, (2004). Article 13 states: “Prisoners of war must at all times be humanely treated.” Article 25 states: “Prisoners of war shall be quartered under conditions as favorable as those for the forces of the Detaining Power who are billeted in the same area.” Article 21 prohibits close confinement, except to safeguard detainees’ health. Levie, Howard S. (2006)
The detainees at Guantanamo are confined in a legal black hole, unable to challenge the lawfulness of their imprisonment and with no suggestion as to how long they will be in incarceration. Michael J. Matheson, (2004) pp45. At the government’s application, US federal courts have refused to accept jurisdiction over the prisoners, blocking their habeas corpus motions to be brought before a court. As a result, there have been numerous suicide attempts.Levie, Howard S. (2006).
The Bush administration has also refused an Amnesty International call for an inquiry into claims of torture and ill-treatment by US personnel against alleged Taliban and Al Qaeda detainees held at the US Air Base in Bagram, Afghanistan. Autopsies revealed that two prisoners who died in the Bagram detention facility in December 2002 had sustained blunt force injuries. It has also been alleged that detainees have been subjected to stress and duress techniques, including hooding, prolonged standing in uncomfortable positions, sleep deprivation and 24-hour illumination. Michael J. Matheson, (2004).
In late November and early December 2001, US and British Special Forces in Afghanistan joined with troops loyal to Northern Alliance warlord General Rashid Dostum to massacre 400 to 800 non-Afghan Taliban supporters who had surrendered the previous day in Kunduz. The slaughter inside the Qala-i-Janghi fortress, which involved American air strikes, was justified on the grounds that the captives had staged an uprising, but all the evidence pointed to a one-sided killing spree. “In any case”, observed Levie, Howard S. (2006) “the Geneva Conventions prohibit reprisals and executions and ban the use of weapons against POWs, especially those attempting to escape except in extreme circumstances”.
Except as provided in section 1005 of the Detainee Treatment Act of 2005, “no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba. The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination… was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals, and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States.” Michael J. Matheson, (2004)
Under the MCA, the law confines habeas appeals for only those aliens detained as enemy combatants, or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. Knoll, et al (1970). If the status is upheld, then their imprisonment is deemed lawful; if not, then the government can change the prisoner’s status to something else, at which point the habeas restrictions no longer apply. Michael J. Matheson, (2004)
Conclusion
The desire for compassionate standards that are relevant to prisoners of war and others arrested during armed conflicts has attained near-universal acceptance. Particularly realized in the various Geneva Conventions, these norms confer upon detainees comprehensive rights and the right to legal recourse so that their proper status is established, and by extension, providing protection to those who are among the most vulnerable of the victims of war. The United States has ratified the Geneva Conventions, expressly incorporated them into its written military regulations, and adhered to them in prior conflicts. Over the past half-century, moreover, the United States has played a prominent role in demanding that detainees be treated by foreign governments in accordance with the Geneva Conventions.
Recently, however, the United States’ treatment of detainees captured during the war on terrorism and its reluctance to reconcile its actions with the norms of the Geneva Conventions or submit them to the scrutiny of the courts, has resulted in widespread doubt about the United States’ actual commitment to those norms. Genuine, demonstrated commitment to the principles of the Geneva Conventions is vital to the United States’ moral authority to demand compliance by other nations with those agreements.
Contrary to the D.C. Circuit’s believe that the courts should not be involved in this process, development of this body of law requires rather than excludes a legalinvolvement. Even where executive discretion is broadest, the fact of review is a formidable protection. And there is law to apply here: impartial tribunals are particularly well-suited to determine whether the detentions at issue comply with the procedural and substantive guarantees that find expression in the Geneva Conventions, United States military regulations, and the United States Constitution.
The Geneva Conventions and military regulations expressly consider the involvement of knowledgeable tribunals in making these determinations. Independent judicial review would remove the doubts of executive involvement or overreach and provide the international community with assurances that the United States’ detentions are not subjective or in violation of the Geneva Conventions, in cases where the detainees’ claims lack merit. Moreover, judicial assessment will enable the courts of the United States to add to the long-term improvement and advancement of international humanitarian law by giving relevance to the governing rules. This, in turn, will lead to a established and secure body of rules that can be inevitably applied by, and demanded of, all nations in all future clashes.
References
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Cohen, Stanley (1996). Government responses to human rights reports: claims, denials, and counterclaims. Human Rights Quarterly, 18: 517-543.
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Jackman, Norman R. (1957) “Collective Protest in Relocation Centers.” The American Journal of Sociology Vol. 63, No. 3: 264-272.
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Third Geneva convention, Arts. 13, 14, 25, 34.