The ICJ sent the following letter to the American Secretary of State.
07 February 2002
Secretary of State
Mr. Colin L. Powell
U.S. Department of State
Washington, D.C. 20520
Dear Mr. Secretary,
The International Commission of Jurists (ICJ), an international non-governmental organisation committed to upholding the rule of law and the legal protection of human rights, is deeply concerned about the situation of captured Taliban and Al Qaida fighters currently detained at Guantanamo Bay, Cuba. The refusal by the United States to grant these persons prisoner-of-war status, as well as the reasons given for this decision, are not consistent with United States’ legal obligations under international humanitarian law and human rights law. We are particularly disturbed by the degree of legally inaccurate debate on the issue that is occurring within the United States, which is not being corrected by the US Government.
The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949 (the Third Geneva Convention), to which the United States is a party, applies to all situations of international armed conflict, regardless of whether war has been officially declared (Article 2). It is important to note also that the United States must comply with its obligations under the Third Geneva Convention in all circumstances, that is, even when its opponent does not observe its obligations and irrespective of whether the conflict is just or unjust.
Article 4 of the Third Geneva Convention establishes the categories of persons who must be considered prisoners of war for the purposes of the Convention, should they fall into the power of the enemy.
As members of the armed forces, captured Taliban fighters are entitled to prisoner-of-war status according to Article 4 (A), paragraphs 1 and 3. In particular, the latter paragraph clarifies that, for the purpose of considering these persons prisoners of war, the fact that the United States has never recognized the Taliban authorities as the legitimate Government of Afghanistan is irrelevant.
As far as the Al Qaida is concerned, it is a militia, the members of which would have prisoner-of-war status if this militia falls into one of the two categories listed in paragraphs 1 and 2 of Article 4 (A), respectively. More precisely, if captured Al Quaida members were acting under the same command as the Taliban armed forces, so as to form part of such forces, they would fall within the scope of Article 4 (A), paragraph 1. As such they would be entitled to prisoner-of-war status. Otherwise, these persons would have prisoner-of-war status provided that Al Quaida as a group fulfils the four conditions enumerated in paragraph 2 of the same article, i.e.: 1) to be commanded by a person responsible for his subordinates; 2) to have a fixed distinctive emblem recognizable at a distance; 3) to carry arms openly; and 4) to conduct their operations in accordance with the laws and customs of war. These conditions, which apply to militias not forming part of the armed forces of a Party to a conflict, should be interpreted according to subsequent practice. Significant State practice, which includes military manuals (for example, those of Argentina, Hungary, Italy, Kenya, the Netherlands, New Zealand, Russia, Spain and Switzerland) and official statements, shows that States generally consider as combatants all persons who fight for a party to a conflict, without strictly distinguishing between regular and irregular armed forces. In particular, the conditions listed under points 2 and 3 of Article 4 (A), paragraph 2, should not be interpreted too restrictively, but rather in the light of their purpose, i.e. that during combat members of the militia can be distinguished from the civilian population so that it is clear to the adversary when it is facing enemy combatants. Finally, such a militia must not in general operate in a manner contrary to the laws and customs of war.
The legal status of detainees at Guantanamo Bay must be assessed on a case-by-case basis. If the United States considers that there are doubts as to whether any of these persons is entitled to prisoner-of-war status, it must allow a “competent tribunal” to decide upon the matter, in accordance with Article 5 (2) of the Third Geneva Convention. It is up to an independent US court following due process to determine, for each person whose particular status is in question, whether he is a member of the Taliban armed forces, having as such prisoner-of-war status, or a member of the Al Qaida. If it is determined that the person is a member of the Al Quaida, then it needs to be assessed whether the group falls into Article 4 (A), paragraph 1, or Article 4 (A), paragraph 2, as described above. An official of the US administration does not have the authority to make this determination. In the Ex Parte Quirin case, it was such a tribunal, i.e. the Supreme Court, who determined the legal status of the German saboteurs, which is what Article 5 (2) requires and which represents customary practice. There are many cases arising from the Second World War and subsequent conflicts that bear this out. Article 5 (2) must be read in the context of well-established, long-standing State practice, which corresponds to customary international law, whereby in principle those persons captured on the battlefield in an international armed conflict are prisoners of war. The few exceptions to this practice were always based on the captor asserting that the persons at issue were “criminals” and therefore not entitled to prisoner-of-war status. This is what the North Vietnamese claimed with reference to captured US soldiers. The US Government will surely agree that similar examples should not occur again.
The ICJ would draw your attention to the fact that prisoner-of-war status provides protection only for the act of taking up arms against the enemy. Thus, the granting of such status to fighters held in Guantanamo Bay would only imply that they cannot be tried for the mere fact of having taken part in the armed conflict. It would not prevent the United States from interrogating and prosecuting them for any alleged actions that amount to war crimes or crimes against humanity as well as for other acts that would be crimes if committed by US soldiers. In particular, although, under Article 17 of the Third Geneva Convention, prisoners of war are not bound to answer questions beyond “surname, first names and rank, date of birth, and army, regimental, personal or serial number”, nothing in the same Convention would preclude the US authorities from interrogating the persons detained in Guantanamo Bay on other matters. The prohibition to inflict any form of coercion upon prisoners of war when interrogated, which is established in the same article, simply affirms with specific regard to prisoners of war the general obligation arising from a fundamental, non-derogable rule of human rights law, whereby torture and other cruel, inhuman or degrading treatment or punishment are prohibited. Furthermore, if charged with an international crime, or a crime over which the United States has jurisdiction that is not mere participation in the armed conflict, these persons would not be entitled to voluntary repatriation at the cessation of active hostilities.
In addition to Article 5 (2), reference must also be made to the provisions of the Convention dealing with judicial guarantees that are to be respected when prisoners of war are submitted to trial by the Detaining Power (Articles 82 to 88 and 99 to 108). Under Article 130, “wilfully depriving a prisoner of war of the rights of fair and regular trial” prescribed in those provisions amounts to a grave breach of the same Convention. It must finally be noted that it is only if the persons at issue are prisoners of war that the United States can be considered to have had the right to remove them from Afghanistan and to keep them detained in Guantanamo Bay. Without such status, they could not have been transferred to US territory without an extradition order given by a tribunal.
Irrespective of their legal status under international humanitarian law, the detainees at Guantanamo Bay must enjoy the fundamental rights and guarantees granted to every human being by international human rights law, which applies to the situation at issue in addition to international humanitarian law.
The International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, provides in Article 9 (1) the right to liberty and security of person, including the right not to be subjected to arbitrary arrest or detention. According to paragraphs 2 to 4 of the same article, arrested persons must be informed of charges against them at the time of arrest, be brought promptly before a judicial authority, have the right to challenge the lawfulness of their detention under habeas corpus proceedings, and be entitled to a trial or release within a reasonable time.
We are not aware of the United States having declared a state of emergency. If the United States had wished to derogate from any of its obligations under Article 9 of the ICCPR with reference to the persons detained at Guantanamo Bay, it needed to have considered itself to be under a state of emergency “which threatens the life of the nation” within the meaning of Article 4 (1) of the same Covenant. It should then have immediately provided notification thereof to the United Nations Secretary-General, as required under paragraph 3 of Article 4. It must be noted, however, that any measure undertaken in derogation of Article 9 should be strictly required by the exigencies of the emergency situation, and must not remove the right to habeas corpus. This was recently affirmed by the United Nations Human Rights Committee, the body responsible for supervising the implementation of the Covenant, in its General Comment No. 29 on states of emergency.
Article 14 (1) of the ICCPR establishes the fundamental right of all persons to a fair and public hearing by a competent, independent and impartial tribunal established by the law. The subsequent paragraphs of the same article provide for a number of guarantees, which form part of the right to a fair trial, including the presumption of innocence, the right to be informed promptly and in detail of the nature and causes of the charge, the right to defense by counsel of one’s own choosing, the right to cross-examine witnesses and the right to appeal to a higher tribunal.
The ICJ has already expressed its concerns about the military commissions proposed by the US President to trial persons accused of terrorist activities and their conformity with international due process standards. I refer in particular to our letter to President Bush dated December 6, 2001, and to an ICJ press release issued on January 17 this year. I would reaffirm here that those embodied in Article 14 of the ICCPR are fundamental, non-derogable human rights, which must be respected by the United States with reference to detainees in Guantanamo Bay, even if it proclaims itself to be in an emergency situation. In this regard, I would quote paragraph 16 of General Comment No. 29 of the United Nations Human Rights Committee, which states that:
“as certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant”.
We have also noted with concern that there appears to be different treatment between US nationals and others in relation to the trial modalities that are to be provided. Article 26 of the ICCPR specifies that:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as… national or social origin,… birth or other status”.
The right to non-discrimination was defined as non-derogable by the United Nations Human Rights Committee in its General Comment No. 29.
In the light of these considerations, and given what the law prescribes and allows, the ICJ does not undertand the attitude taken by the US Government in relation to the persons detained in Guantanamo Bay. It hopes therefore that such attitude will be duly corrected so as to be in conformity with United States’ international obligations.