Letter from Kenneth Roth to Donald Rumsfeld re: Release of Taliban Armed Forces from Guantanamo Bay

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The Hcmorable Donald Rumsfeld
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We write to urge the long overdue release from the U.S. military facility at
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Guantanamo Day, Cuba of all members orlItc Taliban armed forces held solely
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because of their participation in the war in Afghanistan as wall as any civilians
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with no meaningfid connection to al-Oaeda. Unless these detainees are

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prosecuted 1hr a crime, there is no legal basis (Err their continued detention; the
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1949 Geneva Conventions require their release and repatriation. Any detainee
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including :wimp(' terrorism, should het imniecuted by courts that meet international
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We also urge the United States to comply with the rcquirimients of international
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human rights law with regard to persons held at Guantanamo who were
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apprehended outside areas or armed conflict and have no direct connection to an
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armed conflict. For such persons, even ir they are alleged to he terrorist suspects,
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the laws of war do not apply. Under well-established human rights law, the
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Thtlawful Continued Detention of a*ilium%
There have been numerous allegations that the &tautens at Guantanamo include sonic civilians. in
December 22, 2002 article, the T.n.S A tvolas Tinsel detailed the results orits investigation into the
transfer ofdetaineestFum Althanistan to CluantAnamo Ray. Citing U.S. intelligence sources in
Afghanistan, the Los ilngeles :nines reported that at least fifty-nine detainees at Guantinamo had no
tneaningfig tics to the Taliban or al-Qacda. The =nets of these men forty-nine Afghans and ten
Pakistanis— appeared on a list of prisoners, prepared by U.S. intelligence officers in A rghanWan,
who did not meet screening criteria tier transfer to Guant6narno. Ataxmling to the US. (illicit&
cited, some orf thesse detainees included civilians such tut rurmers, taxi dri Yarn, colehlent, a lirewtxxl
vendor, and other laborers who had not taken up arms against the United States.
It is not uncornmeot !'ter civilians to be apprehended during an armed conflict. Their briefelestention
white their civilian status is confirmed is oflen unavoidable. But the law does not permit the
detaining power, in this case the United States, to simply hold such civilians as long as it chooses.
for whatever reasons it chooses, and wherever It chooses.
Civilians typically gualifY as "protected persons" under the Fourth Cieneva CAmvention (Geneva IV, Art. 4). Under that convention, the Ifni ted States is obliged to observe protections for civilians in the areas it occupies, which U.S. policy has interpreted as including "areas through which troops are passing and oven on the battlefield." (Department ofiho Army, The LOW cfLand Warfitre. Field Manual 27-10, par. 352). Acchrding to the International Committee or the Red Crous (ICRC) Commantasy, "F.yen a patrol which penetrate,: into enemy territory without any intention ofstaying there must respect the conventions in its dealing with the civilians it meets" (ICR.C. Coranientary to [/its Pburth hottest Convention. p.60).
The Fourth Geneva Convention permits the United States as an occupying power to keep civilians in detention ("internment") in only two situations: alter prosecution hethre a properly constituted court, or for "imperative reasons of security" (Geneva IV, Art. 78). The United States has apparently not brought chargcs against any detainees at Ottantinamo. It can therefore hold the civilian detainees only i f'u decision regarding the necessity ter internment hum been "made uecording to u regular procedures," in accordance with the convention, including an appeal and a review every six months (Geneva IV, Art. 7R). The decision regarding the neeeguity *l'intnitirraunt
E.c.7.1az:tivc.4y; "each case must be decided separately" (ICRC, Commentary to rho Fourth Geneva Convienficirt, p. 367). The United States is also obliged to periodically review the necessity of continued internment (Cieneva TV, Art. 75) and to release each interned person "as NOM us the reasons which necessitated his internment no longer exist" (Geneva IV, Art. 132). In any ease unless the person is serving a prison sentence, intenunent shall "cease as soon as possible after the close of hostilities" (Geneva IV, Art. 133).
We arc not aware that U.S. officials have made individual determination: , according to a regular procedure (with right to appeal and periodic review) concerning the security threat posed by any protected person under its control. lf, as the Los Angeles Times has reported, U.S. intelligence officers in Afghanistan determined that at least some of the civilians sent to Guantanrano had nomeaningfill connection to thio Tut ihan or al-Qaeda, it is difficult to conceive how their detention could he ccingidered "imperative"' fier national security.
Bush Administration has not acknowledged that any civilians are detained at Guantanamo. Instead, it has claimed that all persons held at Cumnantuno are —ttalawfitl c.ombatants." However, if the TJnitctl Stahel had 1i/flowed the requirements alba Geneva Conventions and its own military
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regulations with regard to combatants, it could have determined through individual tribunals
whether civilians had been transferred from Afghanistnn to Guantanamo and detained there without
legal justi fication.
Tinder the filtneva Conventinn; all combakut captured during an armed conflict must he treated a% prisonizs-of-war (POWs). unless a %cum.-a:lit tribunal" determines otherwise. Under the 1997
U.S. Army Regulation 190-8. a military tribunal convened to deuxutine the status of persons captured during an tinned conflict can decide whether the person is: 1) a POW; 2) retained personnel (e.g., a doctor or chaplain) who thus qualities as a POW; 3) an "innocent civilian who should immediately be returned to his home or released": or 4) a "civilian internee who for reasons of operation security, or probable cause incident to criminal investigation, should be detained." if such tribunals had been convened, any civilians detained by the United States would have bad an opportunity to challenge their designation as a combatant. Presumably, they could have • demonstrated — as they apparently did to t J.S. intelligence :Aileen: in Afghanistan — that they had no meaning.fitl connection to the Taliban or al-Qacda. The problem is compounded by the transfer of such civilians from Afghanistan to Guantanamo: the Fourth Geneva Convention prohibits the deportation of protected persons li-urn the territory in which they were apprehended "regardless of [the] motive" (Geneva TV, Art. 49).
It is unclear whether the revised screening procedures now in use in Afghanistan provide adequate .
safeguards against the detention and transfer to Quantinamo of civilians and certain captured
ccerhalants who should hove been questitmed and released in'reletively short order. The
Department or Deanne should =manually monitor the screening and evaluation ordetuinees to
onsnre it functions properly. The Lo+i1ng, 0c MuCti" articlo describes an almost pervasive fear
among U.S. security officials of releasing someone who, despite the absence of any evidence of
terrorist links whatsoever, may later commit u terrorist act. The I J.S. government has a duty to
ensure that this fear does not result in depriving innocent persons of their liberty lbr many mouths.
i not years.
Unlawitil Detention or Certain Captured 13eLlizerents
The tinitzd Sluics lacks u ler.al basis to 4c:7p in :..;.;:llody roz.iiihurs or the 'rehear( armed !imam detainee solely for their role as combatants engaged in an armed conflict with the United States. 'The 'Third Genova Convention pennits the United States to detain POWs without charge for the duration of the armed conflict in which they were captured. For these Taliban soldiers, that conflict
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the war between the United States and the government ol'Afghanistan —has ended. Such Taliban soldiers confined at CivantAriamo who are not !ming prosecuted criminally must be released.
As Human itig.hts Watch has repeatedly noted in correspondence and conversations with the Bush Administration, in times of war between stales party to the Cieneva Conventions (such us
Afghanistan amid the Inited States), Article 4 of the Third Cferteva Convention requires granting POW status to nil captured members of the enemy's regular armed forces. 'Ibis would include all captured mothers of the Talibau armed forces, as well as members of any militia that was part of those armed forces. When there is doubt as to whether any person capturedin an internationalfinned conflict is entitted to POW' status, Article 5 of the Third tleneva Conventimi requires that u "wmpatent tribunal" he convened to make the thlturrninution on a detainee-hy-detainee hunts. Until now, the United States has never taken exception to this straightforward and appropriate rule: during the Gulf War, for example., more than one thousand Article 5 tribunals wan convened.
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.
From:Toa Molinovski
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The Bush Administration, however, has insisted that it would not consider any of the captured
members of the Taliban armed forces to be POWs. This refusal is based on a strained and
ensmeous reading of the plain language or the Third Geneva Convention, as we have previously
explained in our letter to you ofMay 29, 2002. Moreover, the refusal to grunt POW status lo
Talihan soldiers is a dramatic change tram the IJ.S. government's expansive interpretation or the
convention's umuitements in previous armed conflicts. For example, during the Korean War. the
United SLIMS accorded Chinese and North Korean soldiers YOW status even though those countries
had not yet ratified the Geneva Conventions.
Unman Rights Watch is of the view that the intent of the Third Geneva Convention =ficcted in
the language of .Article 4 is to ensure that members of regular armed forces arc granted POW
statue when captured. This interpretation is consistent with the overall aims of** Genova
Conventiony as well as ICRC commentary and past U.S. practice, and is in the tong..term interests
or the "[hlted Stales.
The POW designation has particular significance todaybe.rwee at least since the formation ofthc Ham id Karzai government in June 2002— the United Slates is no longer at war with the Afghangovernment. Article 1 ill or the Third Clenevu Convention requires that, at wars end, POWs who have not been camvicted ora crime be released and repatriated. Ongoing lighting in Afghanistanwith al-Qacda and opposition forces is distinct from armed conflict with the Afghan governmentand provides no basis for continued detention of former Taliban soldiers.
Under the Geneva Conventions, ire ca)mbalLert captured on the battlefield is nota POW, including
parsons labeled as "non-privileged" or "unlawful" combatants, they must be considered "protected
parsons" under the Fourth:Geneva Convention. (C.leneva IV, Art. 4.; see also :rho Lam, ofLand
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aro, Field Manual 27-10, intarpratatinn,par. 247 which states: "[T]hose protected by FourthGeneva also include all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners or war.") The U.S. regulations iter military tribunals thatdetermine the status of captured persons reflect this interpretation of the conventions as they call fora decision that the detainee is either a POW or a civilian.
As discussed ahovc, now that the awned conflict with 1,1/.7 Arghz.-: 6::-.-emn -seist has =icci, the Fourth Cials.;:va Convention requires the itutnediate release of all protected persons detained solely because of their participation in that conflict. The Geneva Conventions permit the internment of any protected person only upon an individualized determination of imperative security grounds. Thus, even the raiture to recognize the POW status oreupturecl Talihan soldiers is no justification leer their continued detention.
Detainees Wont Outside the War Zone
In addition to persons captured during the fumed conflict in Afghanistan, the United States has taken into custody alleged tu.l.iksist suspects from cithcr locations, including Bosnia-llerzegovina. The United States has asserted that all detained terrorist suspects are being held as part of the worldwide war against terrorism, although the United States has not applied the Genova Conventions or internati onal human rights law to their cases. As noted, terrorist stispects detained during the war in Arhanistan, ii' not POWs, must he treated as protected persons in aceordanw with tlic Geneva Conventions.
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Dee:lust: at-Qaeda is not a Maio, othar military cperutions against the group are covered by Common Article 3 of the Geneva Conventions, which governs armed conflicts that arc not betweat two states party. Those detained as a result of such military operations must be protected from mistreatment
as provided under Common Article 3 and customary international law. In eildi lion, human rights
law remains in erect for such individuals; they must he prosecuted in accordance with hash: due
process rights, unless the dale has formally derogated From its obligations. These legal provisions
apply no matter how the United States defines the war against al-Qacda. vdtether as a worldwide
conflict or a series of discrete military actions.
When al-Queda suspects or other alleged terrorists are apprehended outside areas oranned conflict
and have no direct connection to such conflict such as those apprehended itt Dosnia-lierzegovina,
the Geneva Conventions are inapplicable. Instead, the protections ofinternational human rights law
apply. Those include the requirements of being formally charged, informed of one's rights, and
permitted access to legal counsel. International humanitarian law provides no husis in such
circumstances fir circumventing these requirements by purporting to hold such persons as "enemy
combatants." Indeed, to permit a Bova-renew that is at war in one part of the world to detain people
without charge apprehended elsewhere in the world without demonstrating participation in the
armed conflict is to create a gaping and dangerous lrxmhole in international human rights •
guarantees.
The United Stites has asserted that anyone apprehended for involvement in international trawl= against the United States may be treated as an enemy combatant, no matter where they are found and regardless of the circumstances. This open-ended expansion or the enneept orarmed conflict has no basis under international law. Where law enthrcernent is possible, the government must pursue these crimeg and threatened crimes, serious ac they are, through the clitninatjurtic° system with its attendant due process rights. In the absence of an imminent threat of violet= that could not he met through traditional law en Ibrcement rn eang, no one would seriously suggest that a terrorist
suspect on the streets ()Mew York nr Washington could be summarily shot. Rut if he were really an enemy combatant, such summary killing would he legitimate, as it is in war. In the case or TtXT0fIST suspects far from any recognized battlefield, If it is objectionable for the govenuncinto declare them enemy combatants for the purpose of shooting them on sight IT is equallyobjeutionalvie to circumvent their due process rights and detain them summarily.
'111:u4c. y-co Jim your attention to these issues. We would ha pleased to discuss these matters with you at your convenience.
Sincerely,
/s/
Kenneth Rol Executive Director
Ce:\lion. Colin Powell, Seen:A.-ay of State lion. Alberto Gonzales, White hence Counsel
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