“The decision by President Bush to apply the Third Geneva Convention to the conflict in Afghanistan but deny prisoner of war status to Guantanamo Bay detainees is incorrect in law” said the ICJ today.
President Bush has said this Convention is applicable. That application cannot be selective or partial.
In a letter yesterday addressed to the Secretary of State Colin Powell, the ICJ reminded the US government of its legal obligations to observe the Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention). As the President has stated, its application will ensure that the treatment of the detainees is humane and consistent with international law.
But that same Convention also requires the conferral of prisoner of war status unless a “competent tribunal” decides otherwise. Only a US court and not the Administration has the legal authority to make such a determination.
The letter from the ICJ sets out the legal issues surrounding the detainees and expresses concern at misleading statements on US obligations under international law.
Captured Taleban fighters are entitled to prisoner of war status as members of armed forces irrespective of non-recognition of the Taleban authorities as the legitimate Government of Afghanistan. That same status may or may not be extended to Al Qaida fighters but must be determined by a competent tribunal.
Contrary to the assertions of the Bush administration, the granting of prisoner of war status does not prevent the interrogation and prosecution of the detainees responsible for war crimes, or crimes against humanity. Once charged, such detainees would not be entitled to voluntary repatriation at the cessation of hostilities.
Regardless of their legal status under international humanitarian law, the detainees at Guantanamo Bay must be afforded fundamental rights and guarantees of fair trial as provided by international human rights law.
The Third Geneva Convention is aimed at protecting all parties to a conflict. As a party to this treaty, the United States is bound by its rules. Failure to follow them is inimical to the Rule of Law. It also puts US personnel at risk in future conflicts.
