Guantanamo — A new legal regime?

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Cited authorities (4)

Cited in

Jurisdiction	South Africa
Citation	(2008) African Yearbook on International Humanitarian Law 1
Author	Chris Oxtoby
Pages	1-32
Published date	22 August 2019
Date	22 August 2019

Guantanamo — A New Legal Regime?

Chris Oxtoby*

‘What the administration is trying to do is create a new legal regime.’

(US Deputy Assistant Attorney General John Yoo)

‘May I have my legal representative present, please?’

‘No you may not. This is not a legal proceeding. It is a military tribunal. . . . I don’t

care about international law. I don’t want to hear the word International Law

again.’

(Exchange between detainee Feroz Abbasi and the President

of a Guantanamo Bay Tribunal)

1INTRODUCTION

During the course of the US-led military campaign in Afghanistan which

followed the attacks of September 11th 2001, individuals linked to both Al-

Qaeda and the Taliban were captured; many were transferred to Guanta-

namo Bay.

By July 2003 an estimated 680 detainees were held,

although

* BSocSc, LLB (cum laude) (UCT) LLM Candidate (NYU), Attorney, Teaching and

Research assistant, Department of Public Law, University of Cape Town. I would like to

thank Christina Murray, Tom Bennett and Cathy Powell for their input and

encouragement, as well as the anonymous referees for their helpful comments.

Quoted in Phillipe Sands Lawless World (2006) 153 154.

As quoted by Paul Reynolds ‘Guantanamo: anatomy of a hearing’, available at

news.bbc.co.uk/2/hi/americas/4774566.stm> (accessed on 17 June 2008).

GuantanamoBay is a naval base in Cuba, held on a long lease by the United States in terms

of a treaty with Cuba. Whilst Cuba retains ultimate sovereignty, the US is empowered to

exercise jurisdiction and control over the area. Amnesty International, ‘Memorandum to

theUS Government on the rights of people in US custody in Afghanistan and Guantanamo

Bay’ 2,available at (ac

cessed on 17 June 2008). Not all of those held at Guantanamo were captured on the

battlefield in Afghanistan for instance, a Somali detainee was alleged to be involvedin

Al Qaedaactivities in East Africa. See JohnR Crook ‘Contemporary Practice of the United

States’(2007) 101 American Journal of InternationalLaw 662. Some of the petitioners in

Boumediene v Bush had been apprehended in Bosnia and Gambia see the judgment of

Justice Kennedy at 11, available at

06 1195.pdf> (accessed on 13 June 2008). (All references to the US Supreme Court

judgments are to the page numbers given on the online versions of the judgments). The

status of those detainees seized outside the Afghanistan battlefield raises complex

questions,since it is by no means apparent that they would be entitled to combatant status

under international humanitarian law. This does not mean that such detainees have no

rights; but the focus of this paper is necessarily narrower, and focuses the status of those

detaineescaptured in the course of thearmed conflict in Afghanistan, under international

humanitarian law.

Duncan Campbell ‘Depression and suicide attempts are reported from Guantanamo

Bay’ The Guardian (London, United Kingdom, 5 July 2003) 4.

(2008) African Yearbook on International Humanitarian Law 1

many have subsequently been released, and in February 2008 it was esti-

mated that around 275 detainees remained.

The legal status of the detai-

nees has become the subject of steadily increasing attention and

controversy; indeed, the British Court of Appeal has described the Guan-

tanamo scenario as a ‘legal black hole’.

This paper seeks to explore the

legal nature of this ‘black hole’. It proceeds from the premise that the

United States has attempted to establish a wholly new legal framework

through which to treat individuals detained in the pursuit of the ‘war on

terror’, and particularly those detained in the course of the armed conflict

in Afghanistan. Statements by the US government have made this goal

explicit. What this paper seeks to do is to examine the legal basis for the

framework, and to examine whether it can be said that a ‘new legal regime’

has indeed been created. Whilst international human rights law and US

domestic law are also potentially applicable, this paper intends only to

examine the ‘legal regime’ from the perspective of international humani-

tarian law.

The paper begins by examining the rights that, it will be argued, the

detainees at Guantanamo Bay should be afforded under international

humanitarian law. It will argue that many of the detainees may be entitled

to prisoner of war status, and the implications of this will be examined. An

examination will then be made of the legal framework under which the

detainees have been held; thereafter, the aims articulated by the US gov-

ernment for Guantanamo Bay as an institution will be considered. The

legislative measures taken, and the response of the courts, will also be

discussed. Finally, the central question will be addressed: can it be said

that the US, through its treatment of the detainees, has created a new legal

regime?

At the outset, some clarification of the question posed is necessary. Any

such ‘new legal regime’ cannot be justified under treaty law – no treaties

have been agreed subsequent to the 1949 Geneva Conventions and their

Protocols (the basis of the applicable international humanitarian law sys-

tem) which could be applicable to the detention, treatment or trial of the

detainees. Furthermore, it will be shown that domestic legislation cannot

create a ‘new legal regime’ that is inconsistent with the US’s international

obligations. Therefore, in order to show that a ‘new legal regime’ – as

distinct from the existing ‘regime’ under international humanitarian law

– has been created, it would be necessary to show that a new rule of

customary international law has been created.

2THE STATUS OF THE DETAINEES UNDER

INTERNATIONAL HUMANITARIAN LAW

Common article 2 to the Geneva Convention Relative to the Treatment of

Richard Lister ‘9/11 charges mark major milestone’, available at

bbc.co.uk/go/pr/fr/ /2/hi/americas/7240159.stm> (accessed on 2 April 2008).

R (Abbasi) v The Secretary of State for Foreign Affairs [2002] EWCA Civ 1598.

2 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

Prisoners of War

(‘the Third Geneva Convention’) provides that the Con-

vention is applicable in all cases of declared war, or other form of armed

conflict between two or more High Contracting Parties, regardless of

whether a state of war is recognised by them. The article brings the

Third Geneva Convention into operation in instances of partial or total

occupation of the territory of a contracting party, and provides that if

one of the powers in a conflict is not a party to the Geneva Conventions,

those who are parties remain bound by the Conventions in their mutual

relations.

Both the United States and Afghanistan are parties to the Geneva Con-

ventions.

Since any differences between two states resulting in the inter-

vention of armed forces constitutes an armed conflict,

and since an

international armed conflict has been defined as existing where one

party uses force of arms against another party,

the Afghanistan conflict

should properly be regarded as one covered by common article 2 to the

Geneva Conventions, in that an armed conflict took place between the US

and the armed forces of the Taliban as the effective government of Afgha-

nistan.

As Aldrich puts it: ‘the armed attacks by the United States and

other nations against the armed forces of the Taliban in Afghanistan clearly

constitute an international armed conflict to which those [Geneva] Con-

ventions . . . apply.’

Even if the conflict in Afghanistan were said to fall short of the threshold

of an international armed conflict, common article 3 provides minimum

standards of treatment to which a party is bound.

The article requires

that persons taking no active part in hostilities be treated humanely, with-

out adverse distinction based inter alia on race, religion or faith, and

Of 12 August 1949 (hereinafter ‘The Geneva Conventions’).

George Aldrich ‘The Taliban, Al Qaeda and the Determination of Illegal Combatants’

(2002) 96 American Journal of International Law 891, 893.

Jean S Pictet (ed) Commentary III Geneva Convention Relative to Treatment of

Prisoners of War (1995) 23.

Dieter Fleck Humanitarian Law in Armed Conflicts (1999) 40 41.

The ICRC has also characterised the conflict in Afghanistan as an International Armed

Conflict see ICRC International Humanitarian Law and the Challenges of

Contemporary Armed Conflicts (2007), (hereinafter ‘IHL and the Challenges of

Contemporary Armed Conflicts’), available at

teeng0.nsf/html/5TALFN> (accessed on 19 October 2008).

Aldrich op cit note 8 at 893.

Whilst the article refers explicitly only to non international armed conflicts, it has

come to be accepted that the article’s rules must be observed in any type of armed

conflict, and no departure from these rules is permitted under any circumstances. See

‘Developments in US policy and legislation towards detainees: the ICRC position’,

available at

191006> (accessed on 17 June 2008); Military and Paramilitary Activities in and

against Nicaragua (Nicaragua v United States of America)(Merits) ICJ Reports

(1986) 218; Toni Pfanner ‘Asymmetrical Warfare from the Perspective of Humanitar

ian Law and Humanitarian Action (2002) 87 International Review of the Red Cross

149, at 163 164.

GUANTANAMO A NEW LEGAL REGIME? 3

absolutely prohibits violence to life and person, or outrages upon personal

dignity. The article further prohibits:

‘the passing of sentences and the carrying out of executions without previous

judgment pronounced by a regularly constituted court affording all the judicial

guarantees which are recognised as indispensable by civilised peoples.’

Thus, where the common article 2 threshold for an international armed

conflict is not met, common article 3 will provide protection to detainees,

unless the individual is detained outside of the context of an armed conflict

altogether, in which case international humanitarian law is not applic-

able.

Perhaps the most significant aspect of the Third Geneva Convention is

that it grants prisoner of war status to those who fulfil the requirements for

combatant status. Article 4A defines prisoners of war as persons who have

fallen into the power of the enemy, belonging to one of the following

categories:

‘(1) Members of the armed forces of a Party to the conflict as well as members of

militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including

those oforganised resistance movements, belonging to a Party to the conflict

and operating in or outside their own territory, even if this territory is

occupied, provided that such militias or volunteer corps, including such

organised resistance movements, fulfil the following conditions:

(a) that of being commanded by a person responsible for his subordinates;

(b) that of having a fixed distinctive sign recognisable at a distance;

(d) that of conducting their operations in accordance with the laws and

customs of war.

(3) Members of regular armed forces who profess allegiance to a government or

authority not recognised by the Detaining Power.’

The provision does not define what is required in order to constitute a

regular armed force under article 4A(1). This is consistent with the position

established in the preceding Brussels Declaration of 1874 and Hague Reg-

ulations of 1907, and may be explained by a universal consensus at the time

as to what constituted a regular army.

IHL and the Challenges of Contemporary Armed Conflicts op cit note 11.

Irregular combatants can more easily be classified as prisoners of war under

Additional Protocol I see Garth Abraham ‘ ‘‘Essential Liberty’’ versus ‘‘Temporary

Safety’’: the Guantanamo Bay Internees and Combatant status’ (2004) 121 South

African Law Journal 843 846. Due to the nature of the conflict in Afghanistan, this

could be significant for some of the detainees. However, as the US is not a party to the

Protocol, and as the status of this section of the Protocol under customary

international law is controversial, this paper will assess the Guantanamo detainees’

entitlement to prisoner of war status in terms of the 1949 Convention only.

Ibid at 839. Article 1 of the Hague Regulations provided that the laws of war applied

both to armies and to militia and volunteer corps fulfilling the same conditions found

in article 4A(2) of the Geneva Convention.

4 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

Article 5 provides that the Third Geneva Convention applies to those

persons defined in article 4 from the time they fall into the power of the

enemy, until their final release and repatriation. The article also provides

that in cases of doubt as to whether a detainee meets the requirements of

article 4, such detainee enjoys the protections of the Third Geneva Con-

vention until such time as their status is determined by a competent tri-

bunal.

Whether the Guantanamo detainees indeed fulfil these criteria will be

discussed when the grounds on which the US has attempted to deny that

they are entitled to such status are assessed. At this stage, it should be

noted that the implications of prisoner of war status are significant. First, it

must be emphasised that whereas combatants are permitted to participate

directly in hostilities, and thus may not be punished merely for fighting,

non-combatants are not entitled to take part, and face penal consequences

should they do so.

Whilst not providing immunity from prosecution, the

Third Geneva Convention provides minimum standards that must be

observed in respect of any trial or incarceration of a prisoner.

Article

84, echoing common article 3, forbids the trial of a prisoner of war by

any court that fails to offer ‘the essential guarantees of independence

and impartiality as generally recognised,’ referring explicitly to article

105, which provides inter alia for defence by qualified counsel of the pris-

oner’s choice, and entitles the prisoner to call witnesses.

In terms of

article 85, a prisoner prosecuted, and even convicted, under the laws of

the Detaining Power for acts committed prior to capture retains the ben-

efits of the Third Geneva Convention, even where the charge is one of a war

crime.

Article 118 is a particularly important provision; it provides that:

‘[p]risoners of war shall be released and repatriated without delay after the

cessation of active hostilities.’ Article 119(5) makes an exception for prison-

ers against whom criminal proceedings are pending – such prisoners may

be detained until the end of the proceedings or the completion of any

punishment imposed.

Detainees entitled to prisoner of war status are, by virtue of such status,

entitled to certain minimum standards of treatment. Article 13 of the Third

Geneva Convention provides that prisoners must ‘at all times be humanely

Fleck op cit note 10 at 65.

For instance, art 82 prohibits any proceedings or punishments contrary to the

Convention. Article 87 further prohibits inter alia imprisonment without daylight,

deprivation of clothing or sustenance, cruelty and torture.

Article 105 requires that an accused’s counsel have at least 2 weeks preparation time

prior to the beginning of the trial, and to have the necessary facilities to prepare the

accused’s defence, including the right to ‘freely visit’ the accused and to interview the

accused in private. Counsel is also empowered to ‘confer with any witnesses’, including

prisoners of war.

Leslie C Green The Contemporary Law of Armed Conflict (2000) 211; Fleck op cit

note 10 at 336.

Fleck op cit note 10 at 367.

GUANTANAMO A NEW LEGAL REGIME? 5

treated’, and goes on to protect prisoners from, inter alia, acts of violence or

intimidation, and against insults and public curiosity. Article 14 provides

that prisoners are ‘in all circumstances’ entitled to ‘respect for their persons

and their honour’, and article 16 requires that the Detaining Power treat all

prisoners alike, without any adverse distinction based, inter alia, on race,

nationality, or religious belief.

Article 17 places limitations on the extent to which prisoners of war may

be interrogated. Prisoners are bound only to give their surname, first name,

rank, date of birth and serial number when questioned. The article goes on

to provide that:

‘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.’

In February 2002, the International Committee of the Red Cross (‘ICRC’)

declared the international armed conflict in Afghanistan to be over.

Assuming the ICRC’s interpretation of the situation to be correct, on

what basis are detainees still being held?

3THE ‘NEW LEGAL REGIME’ AND THE RESPONSE OF

THE US COURTS

In the aftermath of the September 11th attacks, the US Congress adopted a

Joint Resolution (hereafter referred to as the ‘AUMF’), authorising the

President to ‘use all necessary and appropriate force against those nations,

organizations, or persons he determines planned, authorized, committed,

or aided the terrorist attacks . .. in order to prevent any future acts of

international terrorism against the United States by such nations, organi-

zations or persons.’

Pursuant to this authorisation, and during the hosti-

lities in Afghanistan, the President issued an order to govern the

‘Detention, Treatment and Trial of Certain Non-Citizens in the War Against

Terrorism.’

Individuals subject to this order include any non-US citizens

in respect of whom ‘there is reason to believe’ that they are or were mem-

bers of Al-Qaeda, or had engaged or participated in terrorist activities

aimed at, or harmful to, the US.

The order provides that such individual

be tried by military commission ‘for any and all offences triable by military

David Rose Guantanamo: America’s War on Human Rights (2004) 26.

It should be reiterated that this paper is concerned with the status of those detained

during the course of the international armed conflict in Afghanistan. The status of

those detained after, and separately to, that armed conflict is beyond the scope of this

paper.

Authorization for Use of Military Force, 115 Stat. 224, Section 2(a).

66 Fed. Reg. 57833.

Ibid.

6 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

commission’, and allows penalties of imprisonment or death to be

imposed.

As has been discussed, the Geneva Conventions create a system whereby

combatants can be detained for the duration of hostilities. However, the

Administration appears initially to have taken the view that the Geneva

Conventions did not apply to detainees associated with either Al-Qaeda or

the Taliban.

The rationale underlying this view is worth noting. In a

memorandum to the President, the then White House Legal Counsel,

Alberto Gonzalez – in the course of a discussion of the advantages of

determining that the Third Geneva Convention did not apply to Taliban

detainees – remarked as follows:

‘[T]he war against terrorism is a new kind of war. It is not the traditional clash

between nations adhering to the laws of war . . . The nature of the new war places

a high premium on other factors, such as the ability to quickly obtain information

from captured terrorists and their sponsors . . . and the need to try terrorists for

war crimes such as wantonly killing civilians. In my judgment, this new paradigm

renders obsolete Geneva’s strict limitations on questioning of enemy prisoners

and renders quaint some of its provisions requiring that captured enemy be

afforded such things as commissary privileges, scrip (i.e., advances of monthly

pay), athletic uniforms and scientific instruments.’

It would seem, therefore, that at the heart of the ‘new legal regime’ that the

Administration wished to establish was the desire to be unconstrained by

the Third Geneva Convention’s restrictions on intelligence gathering. The

professed need to try individuals for war crimes is a red herring – as has

been shown, such prosecutions would be permitted under the Third Gen-

eva Convention. A distinction should also be drawn between the interna-

tional armed conflict in Afghanistan and the broader ‘war on terror’. The

latter, arguably, does not constitute an armed conflict as defined under

international humanitarian law, and state practice post September 11th has

generally been to take law enforcement measures against terror suspects,

rather than to apply the laws of armed conflict to them.

Prosecutions of

terror suspects within the latter paradigm of course remain possible, and

considerations of prisoner of war status do not arise.

The Administration then changed tack slightly by determining that the

Third Geneva Convention would be applicable to the Taliban detainees. In

February 2002, the White House issued a fact sheet professing that the US

Ibid.

See ‘Memorandum for the President’ from Alberto R Gonzales, titled ‘Decision re

Application of the Geneva convention on Prisoners of War to the Conflict with Al

Qaeda and the Taliban, 25 January 2002’. Available at

~nsarchiv/NSAEBB/NSAEBB127/02.01.25.pdf> (accessed on 17 June 2008).

Ibid at 2. The characterisation of these provisions as ‘quaint’ is misleading. Whilst

certain provisions of the convention may seem inapplicable to detainees captured in

the ‘war on terror’ (for instance, article 40, which permits the wearing of badges of

rank and decorations), this cannot be a basis for arguing that the Convention is not

applicable to the armed conflict in Afghanistan.

IHL and the Challenges of Contemporary Armed Conflicts op cit note 11.

GUANTANAMO A NEW LEGAL REGIME? 7

would continue to treat detainees humanely – and, ‘to the extent appro-

priate and consistent with military necessity’ – consistently with the Third

Geneva Convention.

The fact sheet continued as follows:

‘The President has determined that the Geneva Convention applies to the Taliban

detainees, but not to the al-Qaida detainees.

Al-Qaida is not a state party to the Geneva Convention; it is a foreign terrorist

group. As such, its members are not entitled to POW status.

Although we never recognized the Taliban as the legitimate Afghan govern-

ment, Afghanistan is a party to the Convention, and the President has deter-

mined that the Taliban are covered by the Convention. Under the terms of the

Geneva Convention, however, the Taliban detainees do not qualify as POWs.

Therefore, neither the Taliban nor al-Qaida detainees are entitled to POW

status.

Even though the detainees are not entitled to POW privileges, they will be

provided many POW privileges as a matter of policy.

The detainees will not be subjected to physical or mental abuse or cruel

treatment. . . .’

It is not clear on what precise ‘terms of the Third Geneva Convention’ the

President determined that the Taliban detainees did not qualify as prison-

ers of war, but other public pronouncements by the administration offered

further clues. Former Secretary of Defence Donald Rumsfeld stated that:

‘The Taliban did not wear distinctive signs, insignias, symbols or uniforms. To

the contrary, far from seeking to distinguish themselves from the civilian popu-

lation of Afghanistan, they sought to blend in with civilian non-combatants,

hiding in mosques and populated areas.’

This stance was reiterated just over a year later when a White House press

statement clarified the Administration’s approach to the detainees’ sta-

tus.

After affirming an ‘enduring commitment to the important principles

of the Geneva Convention’, it was stated that ‘the Third Geneva Convention

will apply to the Taliban detainees, but not to the Al-Qaeda international

terrorists.’ The White House’s argument unfolded as follows: Afghanistan

is a party to the Geneva Conventions, and whilst the US did not recognize

the Taliban government, the President determined that Taliban members

were covered under the treaty by virtue of Afghanistan being a party to the

Conventions. However, Taliban detainees were denied prisoner of war

status for failing to fulfil the requirements of article 4 of the Third Geneva

Convention: specifically, as ‘[t]he Taliban have not effectively distinguished

themselves from the civilian population of Afghanistan. Moreover, they

have not conducted their operations in accordance with the laws and cus-

White House Fact Sheet on the status of detainees at Guantanamo, available at

(accessed

on 17 May 2008).

Department of Defence news briefing, available at

transcripts/transcript.aspx?transcriptid=2624> (accessed on 17 June 2008).

Availableat gov/news/releases/2003/05/20030507 18.html>

(accessedon 17 June 2008).

8 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

toms of war. Instead, they have knowingly adopted and provided support to

the unlawful terrorist objectives of Al-Qaeda.’ As far as Al-Qaeda detainees

are concerned, the organisation was again characterised as ‘an interna-

tional terrorist group’ that is not a state party to the Conventions; its

members were therefore not covered by the Third Geneva Convention,

and are not entitled to prisoner of war status.

The basis of the US policy is, however, not always clear or consistent.

Contrast the above justification with the following statement by the First

Secretary of the US Embassy in London, which seems implicitly to accord

to the detainees prisoner of war status:

‘The United States government believes that individuals detained at Guantanamo

are enemy combatants, captured in connection with an on-going armed conflict.

They are held in that capacity under the control of US military authorities. . . .

Detainees are being held in accordance with the laws and customs of war, which

permit the United States to hold enemy combatants at least for the duration of

hostilities.’

This presents a very different justification to that put forward above by the

White House. On the White House version, the laws of war do not apply to

the detainees, nor do they provide them with protected status.

But, on the

Ambassador’s version, it is the laws of war that justify the detention. Simi-

larly, in 2004, then-Secretary Rumsfeld commented that:

‘I recognise that in our society the idea of detaining people without lawyers seems

unusual, detaining people without trial seems unusual . . . We need to keep in

mind that the people in US custody are not there because they stole a car or

robbed a bank. They are enemy combatants and terrorists who are being

detained for acts of war against our country and this is why different rules

have to apply.’

The prospect of detainees continuing to be held following the conclusion of

an armed conflict simply because of their having participated in the armed

conflict (as is necessarily implied by the Rumsfeld statement) is plainly

inconsistent with the provisions of the Third Geneva Convention. One may

well ask why ‘different’ rules need apply to the above scenario, and with

what rules these ‘different’ rules contrast? Insofar as detainees have com-

mitted ‘acts of war’ against the United States, the legal position is, it will be

shown, very clear, and provides no basis for their detention beyond the

duration of the hostilities in question – if the ‘acts of war’ complained of are

limited to mere participation in the armed conflict, as distinct from terror-

ist acts. Indeed, the formulation adopted in the above quote is entirely

Quoted in Abbasi op cit note 6 at para 10.

Either because, in the case of members of Al Qaeda, it is incapable of applying to

them; or, in the case of members of the Taliban, because they have failed to meet the

requirements set down for prisoner of war status to apply to them.The ‘law of war’ is a

synonym for international humanitarian law.

‘Guantanamo regime defended by US’, available at

fr/ /1/hi/world/americas/3487543.stm> (accessed on 17 June 2008).

GUANTANAMO A NEW LEGAL REGIME? 9

based on the Third Geneva Convention: ‘enemy combatants’, detained for

‘acts of war’, are, by definition, prisoners of war.

What the Third Geneva

Convention does not provide for is indefinite detention beyond the dura-

tion of the armed conflict.

4HAMDI, RASUL AND THE COMBATANT STATUS

REVIEW TRIBUNALS

The first decision handed down by the US Supreme Court in answer to a

challenge brought by the detainees came in Hamdi v Rumsfeld.

The court

had to determine whether the detention of US citizens, who had been

defined as ‘enemy combatants’, was justified.

The court found that whilst

Congress had authorised the detention of combatants ‘in the narrow cir-

cumstances alleged here’, due process demanded that a citizen so held be

given a meaningful opportunity to challenge the factual basis for his deten-

tion before a neutral decision-maker.

Further, the detainee must receive

notice of the factual basis on which he is classified as an enemy comba-

tant.

The court found that the government had adduced insufficient evi-

dence to justify Hamdi’s detention.

One might add that allowing a detainee the opportunity to challenge the

factual basis for his detention is consistent – though not necessarily co-

extensive – with article 5’s requirement that a detainee be entitled to assert

prisoner of war status before a competent tribunal. Whilst the court’s

decision is not based on the Geneva Conventions, it appears at least to

be consistent with it. This raises the question as to whether a ‘new legal

regime’ can be said to have been created if, in assessing that regime, the

court is inescapable drawn to apply – albeit indirectly – principles found in

the existing system: namely in the Third Geneva Convention.

This decision may be important for those few US citizens who have been

detained as a result of the conflict in Afghanistan; however, what of the vast

majority of detainees who are not US citizens? In the case of Rasul v

Bush,

the Supreme Court considered the legality of the detention of 2

Australian and 12 Kuwaiti citizens. The court based its decision on US

domestic law, and barely mentioned the Geneva Conventions or any

other provisions of international humanitarian law. Writing for the major-

Assuming that the criteria set out in art 4A are fulfilled.

124 S. Ct. 2633 (2004), available at:

28june20041215/www.supremecourtus.gov/opinions/03pdf/03 6696.pdf> (accessed

on 17 June 2008).

Ibid at 10 11.

Ibid at 3.

Ibid at 28.

Ibid at 21.

Case number 03 334 and 03 343, 6; available at

257/2422/28june20041215/www.supremecourtus.gov/opinions/03pdf/03 334.pdf>

(accessed on 17 June 2008).

10 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

ity, Justice Stevens identified the decisive question as being whether the US

habeas corpus statute afforded a right ‘to judicial review of the legality of

Executive detention of aliens in a territory over which the US exercises

plenary and exclusive jurisdiction, but not ‘‘ultimate sovereignty’’’.

Hav-

ing noted that the petitioners denied that they had been involved in acts of

aggression against the US, and had never been afforded access to any form

of tribunal,

the majority found that the District Court’s jurisdiction over

the petitioner’s custodians was sufficient to vest it with jurisdiction to hear

challenges by the petitioners to their detention, under the habeas corpus

statute.

Following these decisions, an order was issued by the US Defence

Department to establish ‘combatant status review tribunals’ (‘CSRT’).

The order applies only to ‘foreign nationals held as enemy combatants’

at Guantanamo Bay. It defines an ‘enemy combatant’ as ‘an individual

who was part of or supporting Taliban or Al-Qaeda forces, or associated

forces that are engaged in hostilities against the United States or its coali-

tion partners.’

The order notes that every detainee subject to the order

‘has been determined to be an enemy combatant through multiple layers of

review’.

Procedurally, the Order requires that all detainees be notified of the

opportunity to challenge their designation as an enemy combatant in

terms of the procedure set out in the Order (and thereby seems to acknowl-

edge the applicability of article 5 of the Third Geneva Convention), as well

as their right to seek a writ of habeas corpus in the US courts

(a clear

acknowledgment of the Rasul judgment). Detainees are assigned a military

officer as a ‘personal representative’ to assist them in the review process.

The representative may share any information with the detainee that is not

classified;

further, the representative may attend all the CSRT’s proceed-

ings bar its deliberations and voting.

Detainees, too, are permitted to

attend ‘all proceedings’ except those involving voting or deliberation by

CSRT members, ‘or testimony and other matters that would compromise

Ibid at 10.

Ibid at 11 12.

Ibid at 19.

DeputySecretary of Defence ‘Memorandum for the Secretary of the Navy. Subject: Order

Establishing Combatant Status Review Tribunal’, dated 7 July 2004 (hereinafter ‘CSRT

Order’). Available at

pdf> (accessed on 17 June 2008).

Ibid at para a.

Ibid.

Ibid at para b.

Ibid at para c.

Ibid.

Ibid at para g (4).

GUANTANAMO A NEW LEGAL REGIME? 11

national security if held in the presence of the detainee.’

The CSRT is

permitted access to ‘any reasonably available information generated in

connection with the initial determination to hold the detainee as an

enemy combatant.’

The detainee is permitted to call witnesses ‘if reasonably available’, and

to question the witnesses called by the CSRT.

Written statements from

witnesses not readily available may be submitted.

Strikingly, the CSRT ‘is

not bound by the rules of evidence such as would apply in a court of law’,

but is ‘free to consider any information it deems relevant and helpful’, and

may, at its discretion, consider hearsay evidence, taking into account its

reliability.

Detainees may testify or otherwise address the CSRT, but may

not be compelled to testify.

The CSRT itself comprises ‘three neutral commissioned officers of the US

Armed Forces’, who were not previously involved in detaining the detainee,

or in determining the detainee’s status.

A ‘Convening Authority’ is to be

designated by the Secretary of the Navy to appoint the CSRTs and its

members.

On conclusion of a hearing, the CSRT decides by a majority

vote whether the detainee has been properly classified as an enemy com-

batant.

A review procedure by the Convening Authority is provided for,

and should the CSRT determine that a detainee no longer be classified as

an enemy combatant, provision is made for the Department of Defence to

liaise with the Department of State ‘to coordinate the transfer of the detai-

nee for release to the detainee’s country of citizenship or other disposition

consistent with domestic and international obligations and the foreign

policy of the United States.’

This might seem to be a step in the direction of the procedure contem-

plated by article 5 of the Third Geneva Convention, but several features of

these CSRTs are problematic. Most fundamentally, commentators have

pointed out that the CSRTs are in fact not empowered to determine a

detainee’s entitlement to prisoner of war status, but rather to determine

whether a detainee is an ‘unlawful combatant.’

An army officer involved

Ibid.

Ibid at para g (7).

Ibid at para g (8).

Ibid.

Ibid at para g (9).

Ibid.

Ibid at para g (10) and (11).

Ibid at para e.

Ibid at para f.

Ibid at para g (12).

Ibid at para h.

Ibid at para i.

James G Stewart ‘The Military Commissions Act’s Inconsistency with the Geneva

Conventions: An Overview’ (2007) Journal of International Criminal Justice 5, 35. As

has been shown, art 5 requires that a competent tribunal determine whether a

detainee meets the requirements for prisoner of war status, in cases of doubt.

12 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

in the hearings has alleged that the CSRTs relied on vague evidence and

were pressurised into classifying detainees as enemy combatants without

specific evidence to support such findings.

Although permitted a military

representative, detainees do not have access to their own lawyer, and

potentially do not have access to evidence against them if such evidence

is classified; and, whilst their representative is entitled to access such

information, he or she is expressly prohibited from sharing it with the

detainee. The acceptance of hearsay evidence deemed to be ‘relevant and

helpful’ means that a detainee’s ability to question witnesses may be

severely limited.

Perhaps most strikingly, the professed ‘neutral’ CSRT

judges are commissioned officers in the US armed forces (engaged, as that

organisation is, in an armed conflict against the groups of which, it is

alleged, the detainees are members). The United Nations Human Rights

Committee has suggested that the CSRTs ‘may not offer adequate safe-

guards of due process’, due to a lack of independence from the executive

and the military, restrictions on the detainees’ access to evidence, difficul-

ties summoning witnesses, and the possibility of the CSRTs taking evidence

obtained by coercion into account.

The US Supreme Court was later to

find that the procedural protections granted to detainees fell ‘well short of

the procedures and adversarial mechanisms that would eliminate the need

for habeas corpus review.’

Despite these serious imperfections, it is interesting to note is that the

CSRTs do appear at least to be attempting (however unsuccessfully) to

fulfil the requirements of the Third Geneva Convention, and US officials

have explicitly stated that the system introduced derives from the Geneva

Conventions.

This is perhaps most striking in respect of the provision of

the order allowing for the release of those detainees no longer classified as

enemy combatants. Indeed, the US justification for holding the detainees

seems confused if not contradictory. US officials have stated that detainees

are treated as enemy combatants, not prisoners of war, on the grounds that

there is no declared war between ‘the countries’ (presumably this means

between the US and Afghanistan).

Therefore, the Pentagon has argued,

Crook op cit note 3 at 659 660, especially the references at footnote 6.

Boumediene op cit note 3 at 63.

Quoted in Stewart op cit note 67 at 35 36.

Boumediene op cit note 3 at 45 46. The court was particularly troubled by the fact

that the ‘personal representative’ assigned to a detainee was not the detainee’s lawyer;

the limitations on a detainee’s ability to rebut evidence caused by his confinement and

lack of access to counsel; and that the review process ‘cannot cure all defects in the

earlier proceedings.’

US Navy Secretary Gordon England, quoted in the BBC News article ‘US defends

Guantanamo tribunals’, available at

stm> (accessed on 17 June 2008).

Ibid.

GUANTANAMO A NEW LEGAL REGIME? 13

these detainees may be held indefinitely without charge.

This position

was described as follows in the separate judgment of Justice Souter in the

Hamdi case:

‘The Government asserts a right to hold Hamdi . . . indefinitely, that is, until the

Government determines that the United States is no longer threatened by the

terrorism exemplified by the attacks of September 11, 2001.’

As we have seen, the absence of a declared war is no bar to the operation of

the Geneva Conventions, since only a state of armed conflict is required to

bring the Third Geneva Convention into operation. The US appears, on this

version, to accept that if the detainees were entitled to prisoner of war

status, they would have to be released.

As this is what the Geneva Con-

ventions also require, the question as to whether the US is indeed creating

a new legal system in dealing with the Guantanamo detainees comes into

sharp focus.

5HAMDAN

The military tribunal process was brought to a halt by the decision of the

Supreme Court in Hamdan v Rumsfeld.

Hamdan, a Yemeni national, was

captured in Afghanistan by Afghan militia forces, and handed over to the

US military.

He was transported to Guantanamo Bay, and, over a year

later, deemed eligible for trial by military commission, for offences which

had yet to be specified.

After a further year, he was charged with one

count of conspiracy to commit offences triable by military commission.

CSRT subsequently upheld his continued detention at on the grounds that

he was an enemy combatant.

Hamdan conceded that a court-martial constituted in accordance with

the US Uniform Code of Military Justice (‘UCMJ’) would have authority to

try him, but argued that the military commission lacked such authority. A

majority of the court agreed, on the ground that the commission’s struc-

tures and procedures violated the UCMJ and the Geneva Conventions. The

court found that the military commission in question had not been

authorised by congress, and that the President did not have a general

‘Panels dismiss Guantanamo cases’, available at

hi/world/americas/3563890.stm> (accessed on 17 June 2008).

Hamdi op cit note 38 at 36 37.

This seems to be contemplated by the release provision of the CSRT Order op cit note

47 at para i.

Case No 05 184, available at

184.pdf> (accessed on 17 June 2008).

Ibid at 9.

Ibid.

Ibid at 13.

14 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

authority to establish military commissions in the absence of specific con-

gressional authorisation.

The specific procedures found to be problematic were: the possible

exclusion of the accused and his counsel from ‘closed’ proceedings (includ-

ing being excluded from learning what evidence was presented in such

proceedings);

the admission of any evidence deemed by the presiding

officer to have probative value (which could include hearsay and coerced

evidence, as well as unsworn oral testimony or written statements);

the

denial of access by the accused and counsel to evidence classified as ‘pro-

tected information’;

and the composition of the appellate body, a three

person ‘review panel’, only one of whom was required to have had experi-

ence as a judge.

The majority noted that the UCMJ empowered the

President to make regulations prescribing the procedures to be followed

in courts martial, military commissions and military tribunals,

but with

two restrictions: no procedural rule may be ‘contrary to or inconsistent

with’ the UCMJ; and there must be uniformity between the rules applied to

military commissions and those applied to courts martial, unless imprac-

tical.

The court then considered the provisions of the Presidential Order that

excluded the accused from proceedings and denied him access to evidence

against him.

The court noted that the order dispensed with virtually all

the rules of evidence that would be applicable in a court-martial.

The

court found that the President had not determined that it was impractic-

able to apply the court-martial rules to Hamdan’s commission, and that

nothing before the court showed that this would be so.

Accordingly, the

commission order violated the UCMJ.

Whilst the court was considering

the military commissions’ compatibility with US domestic law, this is rele-

vant to determining whether the commissions are ‘regularly constituted

courts’ under common article 3,

and arguably also to determining

whether a court offers the ‘essential guarantees of independence and

impartiality’ under article 84 of the Third Geneva Convention.

The court also found that the procedures violated the Geneva Conven-

tions. The government had argued that Hamdan had been captured in a

connection with a ‘war’ against Al-Qaeda, as distinct from the war against

Ibid at 37 38.

Ibid at 58.

Ibid at 59.

Ibid.

Ibid at 59 60.

article 36 of the UCMJ, cited in Hamdan op cit note 77 at 65.

Hamdan op cit note 77 at 65.

Ibid at 66.

Ibid at 67 68.

Ibid.

Ibid at 77.

GUANTANAMO A NEW LEGAL REGIME? 15

the Taliban, and that the war against Al-Qaeda fell outside the provisions of

the Geneva Conventions, as in terms of common article 2, the Conventions

only apply to a declared war or other armed conflict between two or more

contracting parties.

As Al-Qaeda was not a contracting party, the govern-

ment argued, the Conventions were not applicable to Hamdan.

This is

essentially the justification for the detention of Al-Qaeda members that had

previously been put forward by the White House.

The majority avoided pronouncing on this argument by finding that

common article 3 applied, even if the conflict was not one between signa-

tories to the Geneva Conventions.

The majority noted that common arti-

cle 3’s requirement that a detained person not have sentence passed by a

court that is not ‘regularly constituted’ has been interpreted as including

ordinary military courts, and courts established and organised according to

the existing laws and procedures in the country in question.

The majority

found that the military commission set up to try Hamdan could only be

‘regularly constituted’ in terms of the standards of the US military justice

system if a practical need could be shown for the deviations from the

practice of courts martial, which had not been done.

A plurality of four of the justices went on to consider the question of

whether the procedures governing the commission afforded the guarantees

required by common article 3. The plurality found that this requirement

incorporated, as a minimum, the trial protections recognised under cus-

tomary international law, identifying specifically the right to be tried in

one’s presence.

The plurality also found that various provisions of the

order dispensed with principles ‘indisputably’ part of customary interna-

tional law, particularly that an accused should be present at his own trial,

and be privy to evidence against him.

The plurality also found that the

offence of conspiracy with which Hamdan had been charged was not an

offence that, under the laws of war, could be tried by military commission,

and accordingly, that the commission lacked jurisdiction to try Hamdan.

It is interesting to note that, at the conclusion of the plurality judgment,

it is emphasised that the court did not address (and nor did Hamdan

challenge) the government’s power to detain Hamdan for the duration of

‘active hostilities’, in order prevent the harm which would be caused if the

Ibid at 73.

Ibid at 74.

Ibid at 77.

Ibid at 78.

Ibid. The plurality located these customary law rules in article 75 of Additional

Protocol I. Whilst acknowledging that the US is not a party to the Protocol, the

plurality found that US objections were not directed to article 75. Justice Kennedy, in

his separate opinion, was reluctant to consider the question of whether article 75 was

‘binding law’ see ibid at 101.

Ibid at 79.

Ibid at 56 57.

16 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

allegations against Hamdan were true.

100

This seems to be an implicit

acceptance of the applicability of the prisoner of war regime provided by

international humanitarian law. It is, however, unfortunate that the court

did not decide on the status of the Afghanistan conflict under common

article 2, since this could have forced consideration of when the detainees

were entitled to be released. If the court were to have accepted the Admin-

istration’s argument, then a legal basis for detention outside of interna-

tional armed conflict would have to have been identified, and its

compatibility with international humanitarian law assessed. If it is

accepted that the conflict amounted to an international armed conflict,

then the question of the detainees’ ultimate release would have to be con-

fronted. As Common article 3makes no provision for the release of detai-

nees, the Hamdan decision left the Guantanamo detainees without any end

in sight for their detention.

6THE MILITARY COMMISSIONS ACT

Following Hamdan, the Military Commissions Act

101

(‘MCA’) was passed.

The MCA makes ‘any alien unlawful enemy combatant’ subject to trial by

military commission,

102

and defines an ‘unlawful enemy combatant’ as

anyone who ‘has engaged in hostilities or . . . who has purposefully or

materially supported hostilities’ against the US and its allies, and specifi-

cally includes members of the Taliban or Al-Qaeda.

103

The MCA’s defini-

tion of a ‘lawful enemy combatant’ refers to a person who is:

‘(A) a member of the regular forces of a State party engaged in hostilities against

the United States’, or

(B) a member of a militia, volunteer corps, or organized resistance movement

belonging to a State party engaged in such hostilities, which are under

responsible command, wear a fixed distinctive sign recognizable at a dis-

tance, carry their arms openly, and abide by the law of war; or

engaged in such hostilities, but not recognized by the United States.’

104

This definition appears to have been taken almost verbatim from article 4A

of the Third Geneva Convention. One significant difference is that whereas

article 4A(1) refers to members of armed forces and to members of militias

or volunteer corps forming part of the armed forces of a party to a conflict,

the MCA refers only to a member of regular armed forces. It seems likely

that this was deliberately done to counter the argument, discussed below,

that Al-Qaeda members could be entitled to prisoner of war status as

militia or volunteers forming part of the Taliban armed forces.

100

Ibid at 80.

101

Of 2006, PL 109 366 (S 3930), October 17 2006.

102

Military Commissions Act }948c.

103

Ibid at }948(a)(1)(i).

104

Ibid at }948a.

GUANTANAMO A NEW LEGAL REGIME? 17

The MCA establishes procedures to try such combatants by military

commission, for ‘violations of the law of war and other offences triable

by military commission’

105

and, rather strikingly, purports to define the

military commissions it establishes as ‘a regularly constituted court, afford-

ing all the necessary ‘‘judicial guarantees which are recognized as indis-

pensable by civilized peoples’’ for purposes of common article 3of the

Geneva Conventions.’

106

A commission may be convened by the Secretary

of Defence or his appointee,

107

and is headed by a military judge.

108

Any

evidence may be adduced if the judge determines that it would have pro-

bative value to a reasonable person.

109

Providing that the other party is

given a fair opportunity to ‘meet’ the evidence, hearsay evidence is admis-

sible,

110

unless it is shown to be unreliable or lacking probative value.

111

accused may present evidence, cross-examine witnesses, and examine and

respond to evidence admitted against him.

112

The Act expressly precludes

evidence obtained under torture,

113

but the possibility exists that evidence

obtained under coercion prior to the enactment of the Detainee Treatment

Act of 30 December 2005 (‘DTA’) could be admitted.

114

Appellate jurisdic-

tion is limited to questions of law, and to considering whether the com-

mission’s decision was consistent with the standards and procedures

specified in the MCA, and ‘to the extent applicable’ US Law.

115

Recourse

to the writ of habeas corpus

116

or to the Geneva Conventions

117

is expressly

prohibited, as is reference to foreign or international sources of law in

interpreting the US legislation that criminalises grave breaches of common

article 3.

118

The MCA attempts to codify offences that have traditionally been tried by

military commission. Whilst it is beyond the scope of this paper to consider

these in depth, some points may be highlighted. First, it is striking that the

Act defines a ‘protected person’

119

as one who is ‘entitled to protection

105

Ibid at }948b(a).

106

Ibid at }948b(f).

107

Ibid at }948h.

108

Ibid at }948j(a), 948m(a), and 949m(c).

109

Ibid at }949a(2)(A).

110

Ibid at }949a(2)(E)(i).

111

Ibid at (ii).

112

Ibid at }949a(b)(A).

113

Ibid at }948r(b).

114

Ibid at }948r(c). The section provides that a statement obtained prior to the

enactment of the DTA may, if coercion is alleged, be admitted only if the

circumstances render the statement reliable and of sufficiently probative value, and

if the interests of justice would be best served by the statement being admitted.

115

Ibid.

116

Ibid at Section 7(e)(1).

117

Ibid at Section 5(a).

118

Ibid at Section 6(a)(2).

119

Ibid at }950(v)(b)(1).

18 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

under one or more of the Geneva Conventions’.

120

The MCA is thus forced

to look to international humanitarian law to establish the category of per-

sons to be protected from attack in the course of an armed conflict. Sec-

ondly, an offence that should be highlighted is that of ‘wrongfully aiding the

enemy’. In terms of this provision, it is an offence for anyone subject to the

MCA to, ‘in breach of an allegiance or duty to the United States’, aid an

enemy of the US.

121

As the MCA expressly makes unlawful alien enemy

combatants liable to be tried by military commission, it is hard to see how

such accused could ever be guilty of wrongfully aiding the enemy, since

they, by virtue of their status as ‘alien’, will never owe any allegiance to the

United States.

122

The United Nations Special Rapporteur on the Promotion and Protection

of Human Rights and Fundamental Freedoms while Countering Terrorism

has expressed the view that a number of the MCA’s provisions ‘contradict

the universal and fundamental principles of fair trial standards and due

process as enshrined in common article 3.

123

Problematic areas highlighted

by the Special Rapporteur include the power of the President to declare

anyone to be an ‘unlawful enemy combatant’, a term said to be unknown in

international humanitarian law; the material scope of the crimes to be tried

under the MCA being broader than ‘war crimes’ under the Geneva Con-

ventions; and the denial of the right to see exculpatory evidence if such

evidence is classified.

124

The ICRC expressed concerns about the ‘very

broad definition’ of an unlawful enemy combatant, and with the fact that

the MCA omits from its offences certain acts which are war crimes in US

domestic law.

125

Such considerations would presumably apply with equal

force to the trial provisions applicable to detainees in international armed

conflicts, particularly those found in article s 84 and 105 of the Third

Geneva Convention.

The MCA has also been the subject of considerable academic criticism. It

has been argued that, by denying detainees the opportunity to invoke the

Geneva Conventions as a source of rights, and by prohibiting references to

international sources of law, the MCA potentially authorises the US to

breach the Geneva Conventions, should it adopt a narrower interpretation

120

The killing of such a person is an offence. Ibid at }950v.

121

Ibid at }950v(26).

122

George P Fletcher ‘On the Crimes Subject to Prosecution in Military Commissions’

(2007) Journal of International Criminal Justice 5, 46.

123

United Nations Press Release ‘UN Expert on Human Rights and Counter terrorism

concerned that Military Commissions Act is now law in United States’, dated 27

October 2006. Available at

(httpNewsByYear en)/9A78DBC02294E830C12572140033DE76?OpenDocument>

(accessed on 17 June 2008).

124

Ibid.

125

International Committee of the Red Cross, ‘Developments in US policy and legislation

towards detainees: the ICRC position’, available at:

siteeng0.nsf/html/kellenberger interview 191006> (accessed on 17 June 2008).

GUANTANAMO A NEW LEGAL REGIME? 19

than international consensus allows.

126

It has also been argued that the

term ‘unlawful enemy combatant’ conflates an accused’s status as a com-

batant with their culpability for acts committed – in other words, the fact

that an individual does not have the status of a ‘lawful combatant’ is not in

itself a crime, but it does expose that individual to criminal sanctions for

acts committed by taking part in the conflict

127

(whereas lawful combatants

would be liable only for war crimes, but not for taking part in the conflict

per se). Whilst creating the status of ‘unlawful enemy combatant’ may be

necessary to provide military commissions with a jurisdictional foundation,

it is argued that this status is not supported by the legal history of non-

international armed conflict.

128

The MCA has also been criticised for adopting a ‘one size fits all’

approach to characterising armed conflict, ‘inaccurately borrowing selected

privileges from international humanitarian law without fully granting the

corresponding protections.’

129

It has been argued that this approach, of

classifying all terrorist acts as part of an international armed conflict, mis-

reads the provisions of the Geneva Conventions relating to international

armed conflicts in order to apply the rules allowing detention without

charge for the duration of hostilities to individuals from states not involved

in the armed conflict between the US and Afghanistan.

130

These criticisms

highlight the argument that the ‘new legal regime’ purportedly created at

Guantanamo is forced to draw heavily on the existing regime of interna-

tional humanitarian law, in order to have any meaningful content.

It has been further been argued that the MCA denies fundamental judi-

cial guarantees under international humanitarian law, particularly com-

mon article 3’s requirement of trial by a regularly constituted court

affording proper judicial guarantees.

131

(Again, such concerns would be

applicable in respect of article 84’s guarantees in the sphere of interna-

tional armed conflicts). It has been argued that the degree of executive

influence evidenced by the Secretary of Defence’s powers under the MCA is

greater than that found to have deprived other judicial bodies of indepen-

dence.

132

It has also been argued that public statements made by senior

officials in the US military threaten the Commissions’ independence, by

exposing members of the Commissions to executive and command influence,

126

Michael C Dorf ‘The Orwellian Military Commissions Act of 2006’ (2007) Journal of

International Criminal Justice 5, 16 18.

127

Mark David Maxwell and Sean M. Watts ‘Unlawful Enemy Combatant’: Status,

Theory of Culpability, or Neither?’ (2007) Journal of International Criminal Justice

5, 22 25.

128

Ibid at 25.

129

Stewart op cit note 67 at 27 28.

130

Ibid at 28.

131

Ibid at 29.

132

Ibid at 29 30, particularly the authorities referred to at footnote 26.

20 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

and that such comments have, in other circumstances, been held to

infringe the presumption of innocence.

133

Further concerns have been raised that the MCA may conflict with the

requirement under international humanitarian law that an individual

charged with an offence has a right to examine witnesses, by denying an

accused access to exculpatory witnesses.

134

The MCA has also been criti-

cised for allowing the possibility of coerced evidence to be admitted in

contravention of the applicable international humanitarian law stan-

dards,

135

and for creating a ‘novel and unfounded’ concept of grave

breaches of common article 3.

136

A particularly serious aspect of this latter

criticism is that these ‘grave breaches’ exclude ‘the provisions of common

article 3that well-documented practices at Guantanamo unquestionably

violate, namely the denial of the right to fair trial and the prohibition

against outrages upon personal dignity, in particular humiliating and

degrading treatment.’

137

Two common themes, it is suggested, run through these criticisms of the

‘legal regime’ created under the MCA. The first is that it draws heavily on

elements of international humanitarian law, in order to establish, for

instance, the basis on which individuals acquiring combatant status enti-

tling them to take part in an armed conflict, and in order to define those

‘protected persons’ who may not be subject to attack. A related point is that

the MCA appears at times to acknowledge the legally binding status of the

humanitarian law regime – for example, in asserting that the military

tribunals are compliant with common article 3. But – and this is the second

theme – it nevertheless fails to meet the standards required by interna-

tional humanitarian law in several respects, such as the lack of indepen-

dence and impartiality of the military commissions, and in attempting to

redefine combatant status.

An unexpected challenge to the Guantanamo system emerged in June

2007 when charges against Hamdan and another detainee were dismissed

by a US military judge, on the grounds that the detainees had been classi-

fied as ‘enemy combatants’ by a CSRT, but, as we have seen, the MCA gives

133

Ibid at 30 31.

134

Ibid at 31 32. Stewart comments that the CSRT’s rejected three quarters of the

requests for exculpatory witnesses to attend hearings, and all requests in respect of

witnesses situated outside Guantanamo. He argues that if the relevant MCA

provisions are interpreted in the same way, the Act will not meet the requirements

of international humanitarian law.

135

Ibid at 32. Stewart refers to article 99(2) of the Third Geneva Convention, which

prohibits moral or physical coercion being exerted on a prisoner in order to obtain an

admission of guilt.

136

Ibid at 33. Stewart’s criticism is that grave breaches of the Conventions are

‘exhaustively defined’, apply only during an international armed conflict, and do not

include common article 3, which is in effect a self standing convention.

137

Ibid.

GUANTANAMO A NEW LEGAL REGIME? 21

the commissions jurisdiction over ‘unlawful enemy combatants’.

138

Thus,

the judge found, the military commission lacked jurisdiction.

139

This deci-

sion was subsequently overturned by a military appeals court, and prose-

cutors were permitted to present new evidence to show that detainees were

indeed unlawful enemy combatants.

140

Conversely, detainees will presum-

ably have the opportunity to prove otherwise. It appears that the case was

sent back to the judge of first instance for further consideration, holding

that he did have authority to decide whether a detainee was an unlawful

enemy combatant, contrary to the judge’s original finding.

141

It is notable

that the appeals court had yet to be established when the original decision

dismissing the charges was made,

142

giving the impression that the Guan-

tanamo ‘regime’ is one that is being made up as it goes along. This incident

raises a fundamental question of whether, even on its own terms, a coher-

ent ‘legal regime’ can in fact be said to exist at Guantanamo.

The latest instalment in the legal odyssey of Guantanamo came with the

Supreme Court’s June 2008 judgment in Boumediene v Bush.

143

By the

narrowest of margins (5–4), the Court found that the petitioners, aliens of

the United States who had been designated as enemy combatants and

detained at Guantanamo Bay, had a constitutional right to habeas corpus,

and that the MCA served as an unconstitutional suspension of the writ.

144

The court did not consider whether there was indeed authority to detain

the petitioners, holding that the legality of their detention must be

resolved, in the first instance, by the district court.

145

Exactly what the implications of this ruling will be are not yet certain.

The first trials of detainees alleged to have been involved in the September

11th attacks had started only a week prior to the Supreme Court’s judg-

ment,

146

and the US attorney general has indicated that trials would con-

138

‘Guantanamo pair’s charges dropped’, available at

fr/ /2/hi/americas/6720315.stm> (accessed on 17 June 2008).

139

Ibid.

140

William Glaberson ‘Court Advances Military Trials for Detainees’, available at

(accessed on 17

June 2008). Conversely, detainees will presumably have the opportunity to prove

otherwise, and it might be argued that this procedure goes some way to meeting

article 5’s requirement that detainees be given the chance to assert their entitlement

to prisoner of war status.

141

Ibid.

142

‘Guantanamo pair’s charges dropped’, available at

fr/ /2/hiamericas/6720315.stm> (accessed on 17 June 2008).

143

Case numbers 06 1195 and 06 1196, available at

opinions/07pdf/06 1195.pdf> (accessed on 13 June 2008).

144

Ibid at 9 10. The Court’s judgments in Hamdi (op cit note 38) and Rasul had been

based on a statutory, rather than constitutional, habeas right. See Ken Gude,

‘Guantanamo justice’, available at

2008/jun/12/guantanamo.usa> (accessed on 13 June 2008).

145

Boumediene op cit note 3 at 10.

146

‘Guantanamo 9/11 suspects on trial’, available at

2/hi/americas/7437164.stm> (accessed on 5 June 2008).

22 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

tinue despite the ruling.

147

But with both candidates for the 2008 US

Presidential election in favour of closing down the detention centre,

148

the future of Guantanamo is anything but clear.

7HAS A ‘NEW LEGAL REGIME’ BEEN CREATED?

7.1 Consistency of the ‘new regime’ with international

humanitarian law

In order to assess whether a new legal regime has come into existence, the

first question to be addressed is the consistency of that regime with the

existing system of international humanitarian law. This in turn demands

an enquiry into whether the detainees may indeed be entitled to prisoner of

war status. In this regard, the distinction drawn by the US administration

between Taliban and Al-Qaeda detainees is notable. As we have seen, it

accepts the applicability of the Geneva Conventions to Taliban detainees,

but denies that such detainees are entitled to its protections due to their

alleged failure to meet the requirements of article 4A of the Third Geneva

Convention. By contrast, the Conventions are said to be inapplicable to Al-

Qaeda members. Two grounds of non-compliance by Taliban detainees

with the Third Geneva Convention’s requirements are relied on: first, a

failure to wear distinctive signs, insignia, symbols or uniforms; and sec-

ondly, a failure to conduct operations in accordance with the laws and

customs of war, by adopting and supporting the terrorist objectives of

Al-Qaeda.

As regards the first ground, it appears that the US accepts that Taliban

combatants fall to be classified as members of the armed forces of a party

to the conflict in terms of article 4A(1), but fail to meet the requirements set

out in article 4A(2). Since these requirements are not listed in article 4A(1),

it is debateable whether this approach is correct, since the text of article

4A(1) makes no mention of any such requirement.

149

On the other hand, in

the case of Mohamed Ali v Public Prosecutor the Privy Council found that a

soldier who showed membership of an armed force but failed to fulfil the

four conditions of article 4A(2), the soldier would not be entitled to POW

status.

150

Whilst the decision might be justified on the grounds that the

article 4A(2) requirements are inherently part of a regular armed force, the

147

‘US Guantanamo trials ‘‘to proceed’’’, available at /

2/hi/americas/7452125.stm> (accessed on 13 June 2008). Of course, the Supreme

Court decision means that detainees would be able to bring a habeas corpus challenge

before US federal courts to challenge the basis for their detention, regardless of

whether the trials at Guantanamo continue.

148

Ewen MacAskill ‘Supreme Court ruling on right to trial puts Guantanamo future in

doubt’, available at

georgebush> (accessed on 13 June 2008).

149

See Aldrich op cit note 8 at 894 895; Abraham op cit note 15 at 848.

150

[1968] 3 All ER PC 488, 494.

GUANTANAMO A NEW LEGAL REGIME? 23

court unfortunately did not explain the basis on which it applied the article

4A(2) requirements to regular armed forces. Thus, whilst the case may be

persuasive authority, it cannot be said to have resolved the question deci-

sively.

However, even assuming that the article 4A(2) requirements are applic-

able, it has been argued that whilst neither Taliban nor Northern Alliance

fighters wore uniforms, and so the requirement of a ‘fixed distinctive sign’

cannot be fulfilled literally, most of the combatants were not attempting to

disguise themselves as civilians, and therefore the lack of uniforms should

not prevent those captured from being recognized as prisoners of war.

151

On this argument, the requirement of article 4A(2)(b) (of having a fixed

distinctive sign) is only required to distinguish combatants from the civi-

lian population; any clear insignia would suffice.

152

The fact that the Tali-

ban combatants may not have worn a uniform cannot be a ground for

denying them prisoner of war status, unless it was indeed the case that

they wore absolutely no form of sign or symbol and were thus indistin-

guishable from civilians. Writers have argued that whilst Taliban comba-

tants did not wear western-style uniforms, they were distinguished by black

turbans, and conformed to a strict hierarchy of command.

153

Regarding the second ground, that the Taliban supported the terrorist

objectives of Al-Qaeda, Aldrich argues that whilst these would be wrongs

on the part of the state involved, they cannot be equated with failing to

carry out one’s own military operations in accordance with the laws of

war.

154

This ground confuses jus in bello (which regulates the manner in

which armed conflicts are conducted, and thus prisoner of war status

155

)

with jus ad bellum (which relates to grounds on which war may be

fought).

156

The application of the jus in bello is not in any way dependent

on the jus ad bellum, which becomes irrelevant (from the point of view of

international humanitarian law) once an armed conflict has begun.

157

The

use of the word ‘objectives’ by the US in this context suggests a wider

strategic aim, some overall plan of action on the part of the organisations

in question. This being so, the ‘terrorist objectives’ in question relate not to

the jus in bello, but rather to the jus ad bellum.

Thus the fact that the Taliban, as the government of Afghanistan, may

have adopted terrorist objectives impacts on the jus ad bellum in that it

could have provided a basis for the US to use military force against Afgha-

151

Aryeh Neier, ‘The Military Tribunals on Trial’, The New York Review of Books, 14

February 2002, available at (accessed on

17 June 2008).

152

Green op cit note 20 at 113.

153

Rose op cit note 22 at 29.

154

Aldrich op cit note 8 at 895.

155

Green op cit note 20 at 15.

156

Ibid.

157

Abraham op cit note 15 at 850 851.

24 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

nistan. It bears no relation to the jus in bello and accordingly no relation to

the entitlement of individual Taliban combatants to prisoner of war status.

The US seems to base this ground for denying prisoner of war status on

article 4A(2)(d), which requires operations to be conducted in accordance

with the laws of war. This clearly relates to the conduct of Taliban fighters

in combat against US forces, not to whatever relationship the Taliban as a

political entity might have with Al-Qaeda.

The denial of prisoner of war status to Al-Qaeda detainees was based on

the fact that Al-Qaeda is not a state party to the Geneva Conventions and

therefore its members are not entitled to prisoner of war status. However,

an argument has been advanced whereby they may nevertheless be entitled

to prisoner of war status, on the basis that they would appear to have

fought shoulder to shoulder with the Taliban, in an international armed

conflict.

158

Al-Qaeda detainees could thus be brought within article 4A(1),

which includes as members of armed forces members of militias ‘forming

part of such armed forces’ – in this instance, forming part of the Taliban

armed forces.

159

(The exclusion of this category from the definition of

‘lawful combatant’ in the MCA was noted earlier). If this view is correct,

then the same considerations regarding the applicability of the four

requirements of article 4A(2) to article 4A(1) would apply to Al-Qaeda as

well as to Taliban combatants.

Whether the requirement of a ‘fixed distinctive sign’ is fulfilled will

largely be an individual, case-by case enquiry, but if it is correct that

Taliban and Al-Qaeda units effectively formed one armed force, then the

same considerations mentioned with relation to Taliban fighters would be

applicable here. More problematic would be compliance with the require-

ment that operations be conducted in accordance with the laws and cus-

toms of war. Does the organisation’s involvement in acts such as September

11th preclude prisoner of war status? Or can it be argued that the enquiry

should be limited to whether these combatants conducted their operations

on the battlefield in Afghanistan in accordance with the laws of war? It is

submitted that the latter approach is preferable in light of the broad pro-

tective mandate of international humanitarian law, being a dynamic body

of law which aims to be inclusive, rather than exclusionary, in according its

protections.

160

If this approach is followed, it will still need to be shown

that such individual conducted their combat operations in accordance with

the laws of war. What this does suggest is that there at least seem to be

158

Amnesty International op cit note 3 at 32.

159

Writing in his personal capacity, former US Department of Defence official, William

Hays Parks, arguedthat ‘[r]eferences to Al Qaedaand the Talibanas separate entities

constituted an incomplete and inaccurate picture. The enemy consisted of a loose

amalgamation of at least three groups: the Taliban regime, . . . the Al Qaeda terrorist

group, used as the Praetorian Guard for the Taliban leadership . . . and foreign

Taliban. See William Hays Parks ‘Special Forces Wear of Non Standard Uniforms’

(2003) 4 Chicago Journal of International Law 493, 505 507.

160

Abraham op cit note 15 at 851.

GUANTANAMO A NEW LEGAL REGIME? 25

grounds to trigger the application of article 5, entitling those detainees

whose status is in doubt to assert prisoner of war status. A blanket denial

of prisoner of war status by the administration is not sufficient to meet this

requirement.

161

It should of course be pointed out that this in no way

accords legitimacy to what would be regarded as terrorist acts – such

conduct may be prosecuted as a war crime (if it occurred in the course

of international armed conflict) or within the normal criminal justice sys-

tem (if it occurred independently of the armed conflict).

Al-Qaeda combatants might also be classified as ‘members of militias or

other volunteer corps’ in terms of article 4A(2),

162

although whether they

can truly be said to ‘belong’ to a party to the conflict is debateable, parti-

cularly in light of the stateless nature of Al-Qaeda. These arguments sug-

gest that at least some of the detainees seized in the course of the armed

conflict in Afghanistan may be entitled to prisoner of war status, or at least

entitled to assert that status as contemplated by article 5.

Although not providing a focus for this paper, it should be added that

aspects of the US treatment of the detainees appear to violate the provi-

sions of the Third Geneva Convention relevant to the standard of treatment

owed to prisoners of war. Allegations have been made of torture and

threats of torture, of physical abuse, of invasions of privacy, of inhumane

and degrading treatment, of coercive interrogation techniques, of isolation

in solitary confinement for periods of up to 30 days at a time, and of

inadequate provision of food.

163

Most insidious of all, the uncertainty sur-

rounding their future appears to be having a serious impact on the mental

health of detainees.

164

Thus, the purported ‘legal regime’ is inconsistent with that of interna-

tional humanitarian law. And strong arguments exist for rejecting the

contention that the Gunatanamo system constitutes a ‘new legal regime’,

on the grounds that it is inconsistent with that existing regime. The Third

Geneva Convention is binding on the US both as an international treaty

and as part of domestic law.

165

It is simply inconceivable, as a matter of

legal principle, to argue that a state may legitimately abrogate its obliga-

tions by establishing a legal ‘system’ which is fundamentally incompatible

with that state’s existing legal obligations and with an existing legal system

which that state is bound to follow. As internal law cannot absolve a state of

its international obligations,

166

the MCA’s departures (and by extension,

161

Aldrich op cit note 8 at 897.

162

Abraham op cit note 15 at 848.

163

See for examples a letter by the former detainee Moazzam Begg, reproduced in the

BBC news article ‘A letter from Guantanamo: In full’, available at

news.bbc.co.uk/go/pr/fr/ /1/hi/uk/3706428.stm> (accessed on 17 June 2008); Rose

op cit note 22 at 53, 70 77, 88 89 (noting possible links to treatment of prisoners at

Abu Ghraib in Iraq), 94 103.

164

Rose op cit note 22 at 10.

165

Neier op cit note 162.

166

Article 27 of the Vienna Convention on the Law of Treaties, UNTS vol 1155, 331.

26 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

any other departures) from binding legal standards are, in Stewart’s words,

‘best viewed as violations not developments’ of the international humani-

tarian law regime.

167

As Stewart points out, the International Court of

Justice has held that cases of state conduct inconsistent with a rule of

international law will normally be treated a breach of that rule, rather

than as establishing a new rule of international law.

168

7.2 The overlap between the ‘new regime’ and international

humanitarian law

The apparent overlap between aspects of the Guantanamo ‘regime’ and

existing international humanitarian law has already been alluded to. It is

notable that the Mobbs Declaration, filed by the US government in the

Hamdi case in an attempt to provide evidentiary support for Hamdi’s

detention, makes the following assertion:

‘[B]ecause Al-Qaeda and the Taliban ‘‘were and are hostile forces engaged in

armed conflict with the armed forces of the United States,’’ ‘‘individuals asso-

ciated with’’ those groups ‘‘were and continue to be enemy combatants.’’’

169

Two points should be made here. Firstly, if the individuals in question are

indeed ‘enemy combatants’, then they must by definition have fulfilled the

Third Geneva Convention requirements and are therefore entitled to pris-

oner of war status upon capture. Secondly, the Declaration seems to make

no distinction between Taliban and Al-Qaeda combatants, lending weight

to the suggestion that, on the battlefield, there was little to distinguish the

two. As we have already seen, once it is established that the detainees are

entitled to prisoner of war status, they must then be released once the

armed conflict in respect of which they are entitled to that status is over.

This is recognised in the plurality judgment in Hamdi, which makes refer-

ence to article 118 and acknowledges that this prevents prisoners from

being detained for longer than the active hostilities in question.

170

This internal contradiction in the justification put forward by the US

government is identified in the separate judgment of Justice Souter in

Hamdi, where it is noted that:

167

Stewart op cit note 67 at 37 38.

168

Ibid at 38, citing Military and Paramilitary Activities in and against Nicaragua

(Merits) ICJ Reports (1986) at 186. It is, in any event, highly doubtful whether the

Guantanamo system could be said to create a new norm of customary international

law. There do not appear to be any other comparable systems to establish state

practice, and widespread international condemnation appears to rule out the

presence of opinio juris. Even the United Kingdom, the US’ closest ally in the war

on terror, has formally called for Guantanamo to be closed. Jamie Dowd and Mark

Townsend ‘Attorney General calls for Guantanamo to close’, available at

www.guardian.co.uk/politics/2006/may/07/uk.iraq> (accessed on 17 June 2008).

169

Hamdi op cit note 38 at 7, as quoted in the plurality judgment.

170

Ibid at 14.

GUANTANAMO A NEW LEGAL REGIME? 27

‘the Government here repeatedly argues that Hamdi’s detention amounts to

nothing more than customary detention of a captive taken on the field of bat-

tle.’

171

Justice Souter found it unnecessary to address the merits of this argument,

remarking instead that:

‘[f]or now it is enough to recognise that the Government’s stated position in it’s

campaign against the Taliban . . . is apparently at odds with its claim here to be

acting in accordance with the customary law of war and hence to be within the

terms of the Force Resolution [the AUMF] in its detention of Hamdi.’

172

Justice Souter went on to refer to the government’s statement of its posi-

tion in the Fact Sheet of 7 February 2002, and noted further that:

‘Hamdi is presumably such a detainee, since according to the Government’s own

account, he was taken bearing arms on the Taliban side of a field of battle in

Afghanistan. He would therefore seem to qualify for treatment as a prisoner of

war under the Third Geneva Convention, to which the United States is a party . . .

By holding him incommunicado, however, the Government obviously has not

been treating him as a prisoner of war, and in fact the Government claims that no

Taliban detainee is entitled to prisoner of war status . . . This treatment appears

to be a violation of the Geneva Convention provision that even in cases of doubt,

captives are entitled to be treated as prisoners of war ‘‘until such time as their

status has been determined by a competent tribunal.’’ . . . The Government

answers that the President’s determination that Taliban detainees do not qualify

as prisoners of war is conclusive as to Hamdi’s status and removes any doubt that

would trigger application of the Convention’s tribunal requirement . . . But reli-

ance on this categorical pronouncement to settle doubt is apparently at odds with

the military regulation . . . adopted to implement the Geneva Convention,

173

and

setting out a detailed procedure for a military tribunal to determine an indivi-

dual’s status . . .’

174

Justice Souter observed that persons determined by a competent tribunal

not to be entitled to prisoner of war status may not be executed, impri-

soned or otherwise penalised without additional proceedings to determine

what acts they have committed,

175

and that detainees retain the Third

Geneva Convention’s protections in cases of doubt, until their status has

been determined by a competent tribunal.

176

Justice Souter concluded that:

‘[t]hus, there is reason to question whether the United States is acting in accor-

dance with the laws of war it claims as authority.’

177

Justice Souter refrained from pronouncing on whether and to what extent

the Third Geneva Convention was indeed being violated, but found that the

171

Ibid at 46.

172

Ibid.

173

And with the Convention itself, which requires the decision to be made by an

independent decision maker see art 5.

174

Hamdi op cit note 38 at 46 47.

175

Ibid at 48.

176

Ibid, as per art 5 of the Convention.

177

Ibid.

28 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

government had not shown that it was detaining Hamdi under the laws of

war.

178

The judge seems to have picked up on some noteworthy submis-

sions made by counsel for the US government during oral argument. Coun-

sel began by asserting that:

‘. . . [I]t has been well established . . .that the Government has the authority to

hold both unlawful enemy combatants and lawful prisoners of war captured on

the battlefield in order to prevent them from returning to the battle. . . . No

principle of law or logic requires the United States to release an individual from

detention so that he can rejoin the battle against the United States.’

179

This proposition is based fundamentally on the legal regime established by

the Geneva Conventions. As we have seen, the holding of enemy comba-

tants (‘unlawful’ or otherwise) for the duration of hostilities is entirely

consistent with the Third Geneva Convention – indeed, it is a consequence

of prisoner of war status.

Counsel was then asked to justify the fact that some detainees were being

criminally charged, whilst others were subject to indefinite detention. The

response was to the following effect:

‘There are some individuals who may be captured in a situation where they do

not have any particular intelligence value . . . and those individuals can be dealt

with in the Article III system. But there are plenty of individuals who either have

a paramount intelligence value that putting them into the Article III system

immediately and providing them with counsel whose first advice would certainly

be to not talk to the Government is a counterproductive way to proceed in these

cases.’

180

When asked what the outer bounds of a detention would be in order to

obtain the desired value from interrogation, counsel’s response was:

‘. . . I’m not sure I can give you the outer bounds, but . . . the case here . . .

suggests that the amount of time that is necessary to allow for interrogation

without access to counsel in order to get intelligence is not an indefinite period of

time.’

181

Counsel was then asked whether there was any authority for the proposi-

tion that detaining a person incommunicado over a long period of time, for

the purpose of obtaining information from them, was legitimate.

182

Coun-

sel was unable to refer to any specific authority, but argued that it was

recognised that a major justification for the detention of enemy combatants

is to gather intelligence.

183

The idea that the time period for release and

detention of a detainee, if such detainee is entitled to prisoner of war

178

Ibid.

179

At 26 27 (hereinafter ‘Hamdi oral argument’). Available at

courtus.gov/oral arguments/argument transcripts/03 6696.pdf> (accessed on 17

June 2008).

180

Ibid at 27 28.

181

Ibid at 28 29.

182

Ibid at 45.

183

Ibid at 47.

GUANTANAMO A NEW LEGAL REGIME? 29

status, can be influenced by the desire of the captor to obtain information

from a detainee has no basis in the Geneva Conventions, and is therefore

irreconcilable with the entitlement for their detention asserted by the US

administration. As discussed above, article 17 expressly limits the informa-

tion a prisoner is obliged to give under interrogation, and prohibits them

from being coerced into giving information. This is acknowledged in the

plurality judgment in Hamdi, where the court agreed that indefinite deten-

tion for the purpose of interrogation was ‘not authorized.’

184

Counsel was also questioned on the apparently indefinite nature of the

armed conflict, and responded as follows:

‘[W]ith respect to Al-Qaeda and individuals who are hard core Al-Qaeda opera-

tives, the end of the war is a very difficult thing to perceive. But with respect to

somebody who is captured on the battlefield with the Taliban, this war may

eventually – the executive may make the judgment or Congress may help us

make the judgment that the war in Afghanistan is effectively over.

And individuals who only really posed a danger of rejoining the battle in

Afghanistan would be released. Now, there may be a few individuals who . . .

are hard core Al-Qaeda operatives and they’re going to join the battle against the

United States wherever it’s waged. They’re just in Afghanistan because that’s

where the action is.’

185

And then later:

‘There are troops still on the ground in Afghanistan. It makes no sense whatso-

ever to release an individual detained as an enemy combatant in Afghanistan

while the troops are still on the ground in Afghanistan.’

186

Again, this formulation is inescapably founded on the Geneva Conventions.

It expressly recognizes that those detained for having been combatants in

the fighting in Afghanistan would be released once that armed conflict has

concluded.

187

The rationale for detaining Al-Qaeda members appears to be

premised on the existence of an ongoing armed conflict, being the ‘war on

terror’. The ongoing detention of Al-Qaeda members is premised on their

being an ongoing armed conflict which prevents their release, to prevent

them from rejoining that armed conflict.

This acknowledgement of Geneva principles is also evident in the Order

establishing CSRTs, which states:

‘i. Non-Enemy Combatant Determination. If the Tribunal determines that the

detainee shall no longer be classified as an enemy combatant, . . . The Secretary

[of Defence] or his designee shall so advise the Secretary of State, in order to . . .

coordinate the transfer of the detainee for the release to the detainee’s country of

184

Hamdi op cit note 38 at 15

185

Hamdi oral argument op cit note 191 at 48.

186

Ibid at 53.

187

The suggestion that such release would be determined by the US executive or

congress is highly problematic. The Geneva Convention requirement that prisoners of

war be released upon the cessation of hostilities is triggered by a factual situation (the

end of the armed conflict), and not by a determination by the Executive of one of the

parties to the conflict.

30 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

citizenship or other disposition consistent with domestic and international obli-

gations and the foreign policy of the United States.’

188

This provision can clearly be explained within the framework of the Geneva

Conventions: once it has been established that the individual is not a

combatant and therefore cannot be held as a prisoner of war, provision

is made for the detainee’s release, since there is no justification for holding

a detainee who has not been involved in the armed conflict in question. It is

worth recalling that the applicability of the Third Geneva Convention to

Taliban detainees is accepted by the US – it is only argued to be inapplic-

able in the case of Al-Qaeda detainees. It cannot therefore be argued, even

on the US’s own version, that a ‘new legal regime’ has been created in

respect of Taliban detainees, since it is accepted that the Geneva Conven-

tions are the governing law.

8CONCLUSION

Two distinct, but overlapping, strands of argument have been presented.

Firstly, it has been argued that the ‘legal regime’ purportedly established is

incompatible with the existing regime under international humanitarian

law. Arguments as to why many of the detainees may be entitled to pris-

oner of war status have been considered, and it has been seen that their

treatment under the ‘new regime’ falls short of the standard of treatment

required for prisoners of war, both in terms of the treatment they are

subjected to while detained, and in terms of their trial rights. Even for

detainees not entitled to prisoner of war status, Common article 3provides

many protections which the Guantanamo regime does not provide. As it is

incompatible with an existing, binding legal system, it has been argued that

the Guantanamo regime is incapable of being a valid ‘legal system’, since

this system is inconsistent with a pre-existing, binding system of interna-

tional law and thus a breach of those rules, rather than a system of new

rules.

Secondly, it has been argued that the Guantanamo regime does not in

fact constitute a new and distinct legal system at all. It appears, when

stripped down to its essence, to be unavoidably derived from existing

principles of international humanitarian law in some fundamental

respects, such as in defining those entitled to combatant status. Frequently,

it distorts and misapplies these principles. But, by drawing on these prin-

ciples in the first place, the claim that it is a new and distinct legal system is

undercut. Even the argument that such detainees could be ‘indefinitely’

detained appears to be founded in a Geneva Convention framework, since

it presupposes an indefinite armed conflict, and justifies (at least

188

CSRT Order op cit note 47.

GUANTANAMO A NEW LEGAL REGIME? 31

implicitly) the detention of Al-Qaeda members on the basis that the ‘war on

terror’ is ongoing.

189

As far as the process by which detainees are tried is concerned, it is

arguable that, at least post-Hamdan, an attempt is being made to try

and fit these trials into the framework established by the Geneva Conven-

tions. Whether they reach the standard required by the Third Geneva

Convention or not, whilst a very important question, is incidental to the

point that these trials are essentially trying to follow some kind of Geneva

Convention framework, which indicates a tacit acceptance that this Geneva

framework is indeed binding. The ‘legal regime’ at Guantanamo is there-

fore perhaps best described as a distorted Geneva system. There does not

seem to be any significant basis on which to argue that a new rule of

customary international law has been created. The Guantanamo ‘regime’

is therefore best described as a deviation from existing rules, and not a new

legal system in its own right.

189

The question of whether the war on terror is capable of such a classification is of

course a vital one, but one that is beyond the scope of this paper to consider.

32 AFRICAN YEARBOOK OF INTERNATIONAL HUMANITARIAN LAW

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Comprehensive legal content with documents across 100+ jurisdictions

Trusted by 2 million professionals including top global firms

Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

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Transform your legal research with vLex

Complete access to the largest collection of common law case law on one platform

Generate AI case summaries that instantly highlight key legal issues

Advanced search capabilities with precise filtering and sorting options

Comprehensive legal content with documents across 100+ jurisdictions

Trusted by 2 million professionals including top global firms

Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial

Transform your legal research with vLex

Complete access to the largest collection of common law case law on one platform

Generate AI case summaries that instantly highlight key legal issues

Advanced search capabilities with precise filtering and sorting options

Comprehensive legal content with documents across 100+ jurisdictions

Trusted by 2 million professionals including top global firms

Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial

Transform your legal research with vLex

Complete access to the largest collection of common law case law on one platform

Generate AI case summaries that instantly highlight key legal issues

Advanced search capabilities with precise filtering and sorting options

Comprehensive legal content with documents across 100+ jurisdictions

Trusted by 2 million professionals including top global firms

Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Unlock full access with a free 7-day trial

Transform your legal research with vLex

Complete access to the largest collection of common law case law on one platform

Generate AI case summaries that instantly highlight key legal issues

Advanced search capabilities with precise filtering and sorting options

Comprehensive legal content with documents across 100+ jurisdictions

Trusted by 2 million professionals including top global firms

Access AI-Powered Research with Vincent AI: Natural language queries with verified citations

Start Your 7-day Trial