Email from John Cerone to David W. Bowker re: Article on the Status of Detainees

Email from John Cerone to David Bowker forwarding an article (in body) by Cerone on the "Status of deatinees in international armed conflict, and their protection in the course of criminal proceedings."

Thursday, December 20, 2001
Tuesday, January 11, 2005

Boviker, David W (Internet) UNCLASSIFIED 2p2 -25
-II From: John Cerone Uplc100@yahoo.corn]
Sent::Thursday, December 20, 2001 11:05 PM
II: Subject: [ILDG] Status of detainees; text
Hi again -

Apparently the attachment won't go through. So here
is the text. (Please e-mail me if you would like the
full analysis with endnotes, which.are, unfortunately,
rather extensive.)


Status of detainees in international armed conflict,
and their protection in the course of criminal

By John Ceronefx


In light of the recent detentions of members of the
Taleban and Al-Qaeda, questions have been raised as to
what protections they are afforded under international
law. At the same time, attempting to apply existing
international law to th'e novel circumstances presented .

by their cases yields substantial controversy and
'reveals possible gaps in the law.

Analysis of those circumstances requires resolution of
questions for which international law does not provide
definitive answers or about which there is no general
agreement. Simply to determine the applicable law, it
is necessary to consider: which law applies to an
armed conflict between a state and a non-state armed
group based within another state or states; the extent
to which Protocol I to the Geneva Conventions of 1949

(Protocol I) represents customary law; whether human
rights law continues to apply in full alongside
humanitarian law; and whether the law of international
armed conflict applies between a state and a de facto
government that has not attracted international
recognition, while the supposed de jure government has
retained its seat at the United Nations. If it is
determined that the law of international armed
conflict applies, one must then attempt to resolve a
variety of issues arising from the application of that
law, such as whether diversity of nationality is
required for a combatant to be entitled to Prisoner of
War (POW) status; whether individuals detained in the
US by the Immigration and Naturalization Service could
be deemed internees under the relevant provisions of
humanitarian law; whether US forces are occupying any
part of Afghanistan for the purposes of the Fourth
Geneva Convention; and whether Taleban fighters may be
deemed iSarmed forces of a Party to the conflicts
under the Third Geneva Convention.,

The purpose of this ASIL Insight is to provide the
basic legal framework surrounding. some of the
controversial issues arising in the determination of
the applicable law, the status of detainees, the

DATE/CASE ID: 29 DEC 2004 200303827
Jaw, and the operation of the proposed military

I. Applicable Law

Whether or not international humanitarian law, or the
law of armed conflict, applied as from September 11,
it clearly began to apply once the US started bombing
Afghanistan. Further, the conflict between The United
States and the Taleban, as de facto government of
Afghanistan, is international in nature..

This author
takes the view that the law of international armed
conflict should also govern relations between the
Unites States and Al-Qaeda..

Thus, the remainder of
this analysis proceeds on the assumption the: the law
of international armed conflict applied as between the
United States and the Taleban and Al Qaeda from
October 7, 2001, if not before.

The primary sources of law relevant for this analysis

are the Geneva Conventions of 1949..

The Conventions
provide standards for the treatment of persons not, or
no longer, taking active part in hostilities during a
state of armed conflict or occupation. The trial
rights of detainees in the present conflict are
provided in the Third and Fourth Geneva Conventions,
dealing respectively with POWs and civilians.

II. Status of detainees

The Geneva Conventions provide different regimes of
protection depending upon the status of a particular
individual under the Conventions. Special rights in
judicial proceedings are expressly provided for those
having the status of POW under the Third Convention
and, in certain circumstances, for ;§protected
persons;' under the Fourth Convention.


Article 4 of the Third Convention sets forth the

requirements for POW status..

In order to qualify,
captured individuals must fall into one of the
enumerated categories, the first two of which are
particularly relevant here The first category is
members of the armed forces of a party to the

While this may cover Taleban fighters, it
would probably not include members of Al Qaeda. The
second category includes members of other militias or
volunteer corps ;§belonging to a party to the
conflict;" so long as they fulfill certain additional
conditions, including having a distinct sign, carrying
arms openly, and complying with the law of war. Given
the types of activities for which Al Qaeda has been
alleged to be responsible, it is unlikely that it
fulfills these conditions. However, Article 5 of the
Third Convention provides that in the event of i§any
doubt;' as to whether an individual is entitled to POW
status, that individual shall be treated as a POW

;§until such time as their status has been determined

by a competent tribunal.; -

Article 4 is silent on the issue of nationality.
While certain provisions of the Third Convention seem


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Ly Imply LHOL d ryn will nuLubrily nave a oi:rerenc nationality than that of his or hel. captors, there is no express requirement of a diversity of citizenship. UNCLASSIFIED In addition, there is precedent in US case-law for holding that US nationals fighting with the enemy are not deprived of POW status by virtue of their US citizenship..
There is however a line of cases from
other jurisdictions holding that nationals fighting
for the enemy are not entitled to POW status..

third possibility would be that such individuals could
be tried for treason, but otherwise retain the
protections of the Third Convention.

The rights of POWs may not be renounced, and the
protection of the Third Convention continues to apply
to them until final release or repatriation.

i§Proiected Persons;" Under the Fourth Convention

While the Fourth Geneva Convention provides a minimum
of protection to all individuals throughout the
territories of all parties to the conflict, the bulk
of its protections are applicable only to •§protected
persons;" as defined in Article 4 of that Convention.
Article 4 defines protected person as i§those who, at
a given moment and in any manner whatsoever, find
themselves, in case of a conflict or occupation, in
the hands of a Party to the conflict or Occupying
Power of which they are not nationals.;"

Paragraph 2 of Article 4 excludes from this definition

nationals of a co-belligerent state, as well as

nationals of neutral states in the home territory of a

party to the conflict, so long as such states have

normal diplomatic representation in the state in whose

hands they are. Note that this exclusion does not

apply to nationals of neutral states who find

themselves in occupied territory. Such individuals

qualify as protected persons irrespective of the

status of diplomatic relations between their state of

nationality and the state in whose hands they are.

Generally, individuals not qualifying for POW status

under the Third Convention will qualify as i§protected

persons;" so long as they meet the nationality


Thus, those persons taking part in
hostilities who do not qualify as lawful combatants
will qualify for the protection of the Fourth
Convention if they fall within Article 4.

Further, notwithstanding the diversity of nationality

requirement, the International Criminal Tribunal for

the former Yugoslavia has developed a doctrine whereby

individuals who do not technically meet the

nationality requirement of Article 4, may in some

cases be assimilated to the enemy state such that they

could benefit essentially as de facto enemy nationals.

This doctrine is particularly important Ln light of

the number of foreigners alleged to be fighting with

the Taleban or Al Qaeda. If such individuals are

determined to be ineligible for POW status or bo not

meet the nationality test for protected persons,

there would be an argument for assimilating them to

enemy nationality for the purpose of protection under

the Fourth Convention.

Finally, the rights afforded to protected persons will

DOS 002780

wnile some rights are afforded generally to protected persons in the home territory of a party to the conflic:, a more UNCLASSIFIED extensive catalog of rights is provided to such individuals if they have been interned.
.-4cErcAlv.i:t4 Upvii diel: ci rcumstances..

Extensive protection is also afforded to protected
persons in occupied territory. In this regard, it is
important to note the low threshold for application of
the provisions of the Fourth Convention concerning
occupied territory. The ICRC Commentary appears to
take the position that these provisions apply to the
extent a party to the conflict exercises control over
protected persons in the territory of the other party.

According to this interpretation, any protected
persons taken into custody by US forces in Afghanistan
would be covered by these provisions, and this
analysis proceeds on that assumption.


Individuals ineligible for POW status who also fail to
qualify as protected persons benefit from the
protection of Article 75 of Protocol I to the extent
that it may be regarded as customary law..

Article 75
is intended to be a residual provision applying to all
persons who do not receive greater protection under
other provisions of international law.

III. Trial Rights Afforded

Crimes under domestic as well as international law

were clearly committed on September 11. Criminal
proceedings based upon those attacks have already
commenced. In the event a detainee is prosecuted, the

accused is afforded trial rights under both numan

rights and humanitarian law.

Human Rights Law

For the United States, the relevant provisions of
human rights law would include, inter alia, Article 14

of the International Covenant on Civil and Political
Rights. That article provides comprehensive
protection, guaranteeing such rights as: equality
before courts and tribunals; the right to a fair
hearing by an independent and impartial tribunal

established by law; the presumption of innocence; the

right to counsel of the accuseds choice; t'le right
to appeal to a higher tribunal; the right to call and

examine witnesses; the free assistance of an

interpreter; and freedom from compelled


As human rights law is subject to derogation, it is

imperative to consider also the rights provided under

humanitarian law, which is not generally subject to

Humanitarian Law

Trial rights afforded under humanitarian law depend

upon the status of the accused and the nature of the

crime for which he or she is being tried.



DOS 002781

__gum tne customary law of combatant immunity. As combatants have been authorized to use force, they may not be prosecuted for common crimes UNCLASSIFIED
committed in the context of hostilities. Thus, they
may be prosecuted only for violations of the law of
armed conflict or for crimes that are unrelated to the

In any prosecution, they are guaranteed the
protectior.s outlined in Articles 82 to 108 of the
Third Convention. These provisions require. inter
alia, that POWs be tried by the same courts according
to the same procedure as in the case of members of the
armed forces of the Detaining Power; that they only be
sentenced to the same penalties that would apply to
members of the Detaining Power;:s armed forces for the
same acts; that capital punishment not be cariied out
prior to the expiry of a waiting period of at least
six months; and that accused persons be granted the
same right of appeal as that open to members of the
armed forces of the Detaining Power. Article 105
provides for the rights of defense including: the
right to counsel of the accusedils choice, the right
to confer privately with counsel, the right to call
witnesses, and the right to an interpreter.

b. i§Protected Persons;" Under the Fourth Convention

In the course of judicial proceedings, protected
persons who have been interned or are in occupied

territory are entitled to the protection of Articles

71 to 76 of the Fourth Convention. These rights

include: the right to a regular trial; the right to

counsel of the accused;:s choice, who must be able to
visit the accused freely and be provided with the
necessary facilities for preparing the defense; the

right to call witnesses; the right to an interpreter

and to request replacement of an interpreter; the
right of appeal i§provided for by the laws applied by
the court;'; the right to be visited by the delegates
of the Protecting Power and the ICRC; and the right
to be detained and serve sentences in the occupied

Protected persons in occupied territory may not be
prosecuted for acts committed prior to occupation,
with the exception of war crimes..

Protected persons
in the home territory of a party to the conflict who
are not interned are not provided any specific
judicial guarantees.

c. Others

All those who do not benefit from greater protection

under the Third or Fourth Conventions are entitled to
the protection of Article 75 of Protocol I to the
extent its provisions embody customary law. The trial

rights contained therein apply to any penal
proceedings arising out of offenses related to the

armed conflict. Article 75(4) requires that
proceedings be conducted before an i§impartial and

regularly constituted court respecting the generally

recognized principles of regular judicial procedure.;

Those principles are deemed to include a range of
procedural rights, such as provision of i§all
necessary rights and means of defence; -; the right to
be presumed innocent; freedom from compelled


DOS 002782
anu one right to be advised of

reinedies. Article 75(4) also prohibits ex post facto

application of criminal law and requires respect for
the principle of non bis in idem.

The inclusion of the presumption of innocenze in Article .75 is particularly significant, as it is absent from the Third and Fourth Conventions. While POWs and protected persons receive greater protection generally under the Third and Fourth Conventions, they are not precluded from availing themselves pf this or any other additional protection provided by Article

Anyone prosecuted for violations of the Geneva

Any person prosecuted for violations of the Geneva
Conventions, irrespective of his or her status under
humanitarian law, must be provided with i§safeguards
of proper trial and defence, which shall not be less
favorable than; -those outlined in Articles 105 and
following of the Third Convention..

These include the
same rights of defense and appeal as those afforded to

The relevance here of whether the law of
international armed conflict applied as of September
.11 is clear. Any individuals prosecuted for
violations of the Geneva Conventions arising from the
September 11 attacks must be provided these rights.

IV. Implications for the Operation of the Proposed
Military Commissions

Notwithstanding the fact that the proposed military commissions will be specifically authorized to prosecute violations of the laws of war, very few of the procedural safeguards guaranteed under humanitarian law are expressly provided for in the Military Order authorizing their establishment. While further elaboration of the rights of the accused may be expected in the rules of procedure issued by the Secretary of Defense, certain provisions of the Military Order may already be problematic if they are construed to limit the capacity of the Secretary to enact rules conforming to the requirements of human rights and humanitarian law.
The failure to guarantee the rights enumerated above

may itself constitute a war crime. Indeed, if this

failure amounts to willfully depriving a POW or a

protected person of the rights of a fair ard regular

trial i§prescribed in the present Convention,;" the

person(s) responsible for such failure will have

committed a grave breach of the Geneva Conventions.

John Cerone, Executive Director

War Crimes Research Office

Washington College of Law (AU)

(202) 274-4294

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