Guantánamo Bay: A Reflection On The Legal Status And Rights Of ‘Unlawful Enemy Combatants’

Abstract

The status and treatment of unlawful combatants of the Guantánamo detainees and United States policy towards the Geneva Conventions has been the subject of intense media coverage in major international newspapers and news programs, as well as in academic journals and in books and articles on current affairs. The subject has also come before United States courts, several of which are still pending a final outcome. See inter alia,

The War on Cyberterrorism

“…Gill and van Sliedregt argue that the War on Terror "whatever else it is…is not a international armed conflict in a legal sense". 115 The Dutch scholars acknowledge that the military operations against the Taliban and al-Qaeda in Afghanistan do qualify as international armed conflict to which the laws and customs of war, including the notion of combatant status, must be applied. 116 The Bush administration had contended that the laws and customs of war did not apply to the U.S. armed conflict with al-Qaeda fighters during the 2001 U.S. invasion of Taliban-controlled Afghanistan.…”

“…151 Nabulsi concludes that the distinction between the former and the latter was never resolved in international law, 152 and hence the term "unlawful combatant" has become controversial, and now it is problematic. 153 If irregular combatants are not protected under the Geneva Convention (III), as they are not considered members of regular armed forces, then they should be considered as civilians and then protected according to Geneva Convention (IV) and Additional Protocols I and II. Is left open the question of whenever "unlawful enemy combatants" have to be considered terrorists, and whenever they rather have to be considered insurgents, rebels, or irregular opponents, whatever you call them.…”

Security Matters: The Reconstruction of the ‘New World Order’ in American Foreign Policy

“…The reconstructions that they undertook to amend what they considered to be "quaint" statues of international laws, such as the 1949 Geneva Conventions and the 1984 Conventions Against Torture and Other Inhumane or Degrading Treatment or Punishment, had enormous repercussions (Galchinsky 2013;Goldstone 2005Goldstone -2006. The creation of a category of 'unlawful enemy combatants" who were not granted habeas corpus amongst a host of other legal protections is but one outcome of the Bush administration redefining existing rules (Gill and van Sliedregt 2005). Such actions were further compounded by the interrogation techniques and rendition polices issued from the highest echelons in the Department of Defense and beyond (Hersh 2005;Greenberg, Dratel and Lewis 2006).…”

Presidential Power and Congressional Acquiescence in the “War” on Terrorism: A New Constitutional Equilibrium?

“…The significance of this wording, however, lies less with the “unlawful combatant” category, which international humanitarian law has long recognized, and more with the wide discretion accorded to the president, the U.S. Department of Defense, and other executive agencies over whether international humanitarian law (specifically, the Third Geneva Convention) and U.S. domestic law applies in respect of the treatment of detainees. A legal appraisal by Gill and van Sliedregt concludes that international humanitarian law “has been sporadically and selectively applied and in many respects has been ignored or violated,” and the Bush Administration has applied the “unlawful combatant” category “beyond its legal ambit. It has become a ‘catch term’ to justify executive detention” (2005, 53).…”