Unlawful combatant

2269:] be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do may be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a 'competent tribunal', and not specifically a military tribunal. 712:, 18 October 1907, but did not include Article 12, which provides: "Prisoners of war liberated on parole and recaptured bearing arms against the Government to whom they had pledged their honour, or against the allies of that Government, forfeit their right to be treated as prisoners of war, and can be brought before the courts". Nevertheless, contained in the commentary on GCIII: The only safeguard available to a parole violator—who has been coerced into fighting, and who has been recaptured by the Power that detained him previously—is contained in the procedural guarantees to which he is entitled, pursuant to Article 85 of GCIII. 2315:(Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of , provided that its article 4 requirements are satisfied". Celebici Judgment, para. 271 (1998). 1282:, the Fourth Circuit Court of Appeals began hearing the government's appeal of the lower court (the District of South Carolina, at Charleston) ruling by Henry F. Floyd, District Judge, (CA-04-2221-26AJ). Their ruling, decided 9 September 2005, was that "the President does possess such authority pursuant to the Authorization for Use of Military Force Joint Resolution enacted by Congress in the wake of the attacks on the United States of September 11, 2001. Accordingly, the judgment of the district court is reversed". 641:, and if they are a protected person under GCIV, the Party to the conflict will invoke GCIV Article 5. In this case, the unlawful combatant does not have rights under the present Convention as granting them those rights would be prejudicial to the security of the concerned state. They do, however, retain the right "... to be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention", 4346: 178: 892:

trial by Military Commission... is in conformity with the laws and Constitution of the United States." Quirin, 317 U.S. at 18. Since the Supreme Court has decided that even enemy aliens not lawfully within the United States are entitled to review under the circumstances of Quirin, that right could hardly be denied to U.S. citizens and other persons lawfully present in the United States, especially when held without any charges at all.

3473:(DOC) "unlawful combatant" means a person who has participated either directly or indirectly in hostile acts against the State of Israel or is a member of a force perpetrating hostile acts against the State of Israel, where the conditions prescribed in Article 4 of the Third Geneva Convention of 12 August 1949 with respect to prisoners-of-war and granting prisoner-of-war status in international humanitarian law, do not apply to him. 68: 719:(USAF), this means that "he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured. The 1949 Geneva Convention is less direct on the issue. A recaptured parole violator under the Convention would be afforded the opportunity to defend himself against charges of parole breaking. In the interim, the accused violator would be entitled to PW status". 4356: 1066:, the Supreme Court ruled that "the U.S. Guantanamo Bay, Cuba, Naval Base, which the United States occupies under a lease and treaty recognizing Cuba's ultimate sovereignty, but giving this country complete jurisdiction and control for so long as it does not abandon the leased areas", and that as the United States had complete jurisdiction, the federal courts have the authority under the federal 1347:

Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission. Judge Robertson in Hamdan v. Rumsfeld held that the Third Geneva Convention, which he considered selfexecuting, had not been complied with since a Combatant Status Review Tribunal could not be considered a 'competent tribunal' pursuant to article 5 of the Third Geneva Convention.

1669:

him. Under the Rules of Engagement and the Geneva Convention, unless a person is positively identified as being a combatant, they should be considered a civilian and treated accordingly. As the alternative view would be that Mr Zaher was not an unlawful combatant but a civilian, the reviewing lawyer also considered whether the soldiers could rely on self defence. ...

553:), and those who are not. The critical distinction is that a lawful combatant (defined above) cannot be held personally responsible for violations of civilian laws that are permissible under the laws and customs of war; and if captured, a lawful combatant must be treated as a prisoner of war by the enemy under the conditions laid down in the Third Geneva Convention. 1354:, the legal advisor to the Tribunals, offered his legal opinion, that CSRT "do not have the discretion to determine that a detainee should be classified as a prisoner of war – only whether the detainee satisfies the definition of 'enemy combatant'". Determining whether a captive should be classified as a prisoner of war is the sole purpose of a competent tribunal. 977:", where such individuals are members of the organization known as al Qa'ida; or has conspired or committed acts of international terrorism, or have as their aim to cause, injury to or adverse effects on the United States, its citizens, national security, foreign policy, or economy. The order also specifies that the detainees are to be treated humanely. 1406:, or associated forces); or a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense. 2271:

Another change was made in the text of the paragraph, as drafted at Stockholm, in order to specify that it applies to cases of doubt as to whether persons having committed a belligerent act and having fallen into the hands of the enemy belong to any of the categories enumerated in Article 4 (14). The

1285:

In Hamdan v. Rumsfeld (29 June 2006) the U.S. Supreme Court did not rule on the subject of unlawful combatant status but did reaffirm that the U.S. is bound by the Geneva Conventions. Most notably it said that Common Article 3 of the Geneva Convention, regarding the treatment of detainees, applies to

891:

The Quirin case, however, does not stand for the proposition that detainees may be held incommunicado and denied access to counsel; the defendants in Quirin were able to seek review and they were represented by counsel. In Quirin, "The question for decision is whether the detention of petitioners for

825:

Two separate issues to be determined in evaluating the category "unlawful combatant" as applied by the government of the United States. One issue is whether such a category can exist without violating the Geneva Conventions, and another issue is, if such a category exists, what steps the US executive

376:

The term "unlawful combatant" is a legal term only applicable in interstate conflicts and has been used for the past century in legal literature, military manuals, and case law. However, unlike the terms "combatant", "prisoner of war", and "civilian", the term "unlawful combatant" is not mentioned in

2049:

very person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention.

1668:

In reviewing the case, the CPS lawyer considered the possible view that, because of his behaviour, Mr Zaher had become an unlawful combatant and therefore under the Rules of Engagement, under which the soldiers were required to operate, they would have been entitled to take offensive action against

1566:

The Supreme Court has finally brought an end to one of our nation's most egregious injustices. It has finally given the men held at Guantanamo the justice that they have long deserved. By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago

1410:

The definition of a lawful enemy combatant is also given, and much of the rest of the law sets out the specific procedures for determining whether a given detainee of the U.S. armed forces is an unlawful enemy combatant and how such combatants may or may not be treated in general and tried for their

1346:

It appears ... that the procedures of the Combatant Status Review Tribunals do not qualify as status determination under the Third Geneva Convention. ... The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District

960:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons, in order to prevent

314:

Combatants who are captured without the minimum requirements for distinguishing themselves from the civilian population, i.e. carrying arms openly during military engagements and the deployment immediately preceding it, lose their right to prisoner of war status without trial under Article 44 (3) of

2104:

A/RES/44/34 72nd plenary meeting 4 December 1989 (UN Mercenary Convention). Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as

1882:

The official position of the US government is that these detainees are not prisoners of war. Rather, they are unlawful combatants and, consequently, are not subject to the rules and regulations governing wartime, such as found in the Geneva Conventions. This distinction is legally suspect,12,13 but

878:

who without uniform comes secretly through the lines for the purpose of waging war by destruction of life or property, are familiar examples of belligerents who are generally deemed not to be entitled to the status of prisoners of war, but to be offenders against the law of war subject to trial and

696:

A combatant who is a POW, and who is subsequently paroled on the condition that he will not take up arms against the belligerent power (or co-belligerent powers) that had held him as a prisoner, is considered a parole violator if he breaks said condition. He is regarded as guilty of a breach of the

662:

Any person who has taken part in hostilities, who is not entitled to prisoner‑of‑war status and who does not benefit from more favourable treatment in accordance with the Fourth Convention shall have the right at all times to the protection of Article 75 of this Protocol. In occupied territory, any

590:

If the individual fulfills the criteria as a protected person, they are entitled to all the protections mentioned in GCIV. Under the meaning of Article 4 of GCVI, civilians under their own national authority and of a state not party to the GCIV are not protected persons. Likewise, neutral nationals

197:

applicable in an interstate conflict, combatants may be classified into one of two categories: privileged or unprivileged. In that sense, privileged means the retainment of prisoner of war status and impunity for the conduct prior to capture. Thus, combatants that have violated certain terms of the

2045:

It is important, however, to note that this finding is predicated on the view that there is no gap between the Third and the Fourth Geneva Conventions. If an individual is not entitled to the protections of the Third Convention as a prisoner of war (or of the First or Second Conventions) he or she

1695:

Whereas the terms "combatant" "prisoner of war" and "civilian" are generally used and defined in the treaties of international humanitarian law, the terms "unlawful combatant", "unprivileged combatants/belligerents" do not appear in them. They have, however, been frequently used at least since the

980:

The length of time for which a detention of such individuals can continue before being tried by a military tribunal is not specified in the military order. The military order uses the term "detainees" to describe the individuals detained under the military order. The U.S. administration chooses to

868:

By universal agreement and practice, the law of war draws a distinction between the armed forces and the peaceful populations of belligerent nations and also between those who are lawful and unlawful combatants. Lawful combatants are subject to capture and detention as prisoners of war by opposing

688:. Article 2 makes it an offence to employ a mercenary and Article 3.1 states that "A mercenary, as defined in article 1 of the present Convention, who participates directly in hostilities or in a concerted act of violence, as the case may be, commits an offence for the purposes of the Convention". 605:

Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the

577:

Article 4. Persons protected by the Convention are 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. Nationals of a State which is not bound by

556:

If there is any doubt about whether a detained alleged combatant is a lawful combatant then the combatant must be held as a prisoner of war until his or her status has been determined by a competent tribunal. If that tribunal rules that a combatant is an unlawful combatant then the person's status

2154:

The exceptions are: "Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of

2041:

In addition, the evidence provided to the Trial Chamber does not indicate that the Bosnian Serbs who were detained were, as a group, at all times carrying their arms openly and observing the laws and customs of war. Article 4(A)(6) undoubtedly places a somewhat high burden on local populations to

704:

made no mention of parole, but as it was supplemental to the Hague conventions, it relied on the wording of Hague to address this issue. The authors of GCIII, 1949, decided to include a reference with some modification to parole, because during the Second World War, some belligerent countries did

173:

intermediate status; nobody in enemy hands can be outside the law". Thus, anyone not entitled to prisoner of war status maintains the same rights as a civilian, and must be prosecuted under domestic law. Neither status exists in non-international conflict, with all parties equally protected under

1713:

This does not mean that the status of unlawful combatant does not exist because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents ... They may be prosecuted under the domestic law of the detaining

1203:

about the 2001 9/11 attacks. On 9 June 2002 President Bush issued an order to Secretary Rumsfeld to detain Padilla as an "enemy combatant". The order justified the detention by leaning on the AUMF which authorized the President to "use all necessary force against those nations, organizations, or

1175:

which issued a decision on 28 June 2004, repudiating the U.S. government's unilateral assertion of executive authority to suspend the constitutional protections of individual liberty of a U.S. citizen. The Court recognized the power of the government to detain unlawful combatants, but ruled that

3074:

by, Mark Denbeaux, Professor, Seton Hall University School of Law and Counsel to two Guantanamo detainees, Joshua Denbeaux, Esq. and David Gratz, John Gregorek, Matthew Darby, Shana Edwards, Shane Hartman, Daniel Mann, Megan Sassaman and Helen Skinner Students of Seton Hall University School of

988:

US secretary of defense announced Guantanamo Bay detainees would be held as illegal enemy combatants instead of prisoners of war, permitting lack of compliance with the Geneva Conventions. Bush administration maintained that the terrorists aren’t prisoners of war due to the distinction between

873:

are likewise subject to capture and detention, but in addition they are subject to trial and punishment by military tribunals for acts which render their belligerency unlawful. The spy who secretly and without uniform passes the military lines of a belligerent in time of war, seeking to gather

51:

points out that the terms "unlawful combatant", "illegal combatant" or "unprivileged combatant/belligerent" are not defined in any international agreements. While the concept of an unlawful combatant is included in the Third Geneva Convention, the phrase itself does not appear in the document.

2127:

official statement by the ICRC 21 July 2005. "If civilians directly engage in hostilities, they are considered 'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms). They may be prosecuted under the domestic law of the

620:

In each case, such persons shall nevertheless be treated with humanity and, in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present

543:

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been

506:, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. 270:

Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war; often dubbed a

934:, that Guantanamo Bay captives were entitled to access the US justice system and that the military commissions constituted under the Military Commissions Act of 2006 fell short of what was required of a court under the United States constitution (see the section below for more details). 594:

If a combatant does not qualify as a POW, then, if he or she qualify as a protected person, he or she receives all the rights which a civilian receives under GCIV, but the party to the conflict may invoke Articles of GCIV to curtail those rights. The relevant Articles are 5 and 42.

429:

The Geneva Convention relative to the Treatment of Prisoners of War, 12 August 1949 (GCIII) of 1949 defines the requirements for a captive to be eligible for treatment as a POW. A lawful combatant is a person who commits belligerent acts, and, when captured, is treated as a POW. An

791:

Since the status of a non-state armed group is not legally recognized in a non-interstate armed conflict, defendants can be sentenced by the legal system of either the territorial or intervening third state for simply taking part in combat against them. On 7 October 2021, a former

2274:

It therefore seems to us that this provision should not be interpreted too restrictively; the reference in the Convention to 'a belligerent act' relates to the principle which motivated the person who committed it, and not merely the manner in which the act was committed".

1483:

responded by stating: "We believe that Congress intended to grant jurisdiction under the Military Commissions Act to individuals, like Mr. Khadr, who are being held as enemy combatants under existing C.S.R.T. procedures". That position was called "dead wrong" by Specter.

516:

6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of

617:, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention. 1596:, both testified they agreed the U.S. government may detain combatants in accordance with the laws of war until the end of the war, (this sidesteps the issue of deciding whether the combatant is a lawful or unlawful combatant and the need to try them). When asked by 697:

laws of war, unless there are mitigating circumstances such as coercion by his state to break his parole. As with other combatants, they are still protected by the Third Geneva Convention (GCIII), until a competent tribunal finds them in violation of their parole.

2262:

that "At Geneva in 1949, it was first proposed that for the sake of precision the term 'responsible authority' should be replaced by 'military tribunal' (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot

1708:

there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of , provided that its article 4 requirements are

1256:, in April 2004, but on 28 June it was thrown out on a technicality. The court declared that New York State, where the case was originally filed, was an improper venue and that the case should have been filed in South Carolina, where Padilla was being held. 1164:

in November 2001. He was taken to Guantanamo Bay Naval Base, but was transferred to jails in Virginia and South Carolina after it became known that he was a U.S. citizen. On 23 September 2004, the United States Justice Department agreed to release Hamdi to

796:

commander was indicted by a federal grand jury in New York for the 26 June 2008 attack on an American military convoy that killed three U.S. soldiers and their Afghan interpreter, and 27 October 2008 shooting down of a U.S. military helicopter during the

1152:

reported on 15 June 2005 only four detainees had been charged and that Joseph Margulies, one of the lawyers for the detainees said "The (reviews) are a sham ... They mock this nation's commitment to due process, and it is past time for this mockery to

115:, the detaining power may choose to accord the individual the rights and privileges of a prisoner of war as described in the Third Geneva Convention, but is not required to do so. An individual who is not a lawful combatant, who is not a national of a 2091:

Under Article 47 of Protocol I (Additional to the Geneva Conventions) it is stated in the first sentence "A mercenary shall not have the right to be a combatant or a prisoner of war." On 4 December 1989 the United Nations passed resolution 44/34 the

1774: 1169:, where he is also a citizen, on the condition that he gave up his U.S. citizenship. The deal also bars Hamdi from visiting certain countries and to inform Saudi officials if he plans to leave the kingdom. He was a party to a Supreme Court decision 1464:

ruled that the military tribunals, created to deal with "unlawful enemy combatants", had no jurisdiction over detainees who had been designated only as "enemy combatants". He dismissed without prejudice all charges against Khadr. Also on 4 June,

1023:

thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War. For those U.S. citizens detained under the military order, U.S. officials, such as Vice President

1235:

On 18 December 2003, the Second Circuit Court of Appeals declared that the Bush Administration lacked the authority to detain a U.S. citizen arrested on U.S. soil as an "illegal enemy combatant" without clear congressional authorization (per

1664:(CPS) makes the distinction. The CPS conducted a "through review of the evidence concerning the deaths of Sergeant Steven Roberts of the 2nd Royal Tank Regiment and Mr Zaher Zaher, an Iraqi national, at Az Zubayr, Iraq on 24 March 2003": 752:(d) the passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples. 287:), combatants who do not wear a distinguishing mark still qualify as prisoners of war if they carry arms openly during military engagements, and while visible to the enemy when they are deploying to conduct an attack against them. 772:

Under Common Article 3 of the Geneva Conventions, persons under physical control or custody by a party to the conflict should be treated humanely, and if tried "sentences must ... be pronounced by a regularly constituted court".

95:. A state in such a conflict is legally bound only to observe Common Article 3 of the Geneva Conventions. All parties are otherwise completely free to either apply or not apply any of the remaining Articles of the Conventions. 1070:

statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned. This ruling largely overturned the judicial advantage for the U.S. administration of using the Naval Base that

1603:"If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" Both Holder and Kagan said that they would. 2054:

intermediate status; nobody in enemy hands can be outside the law. We feel that this is a satisfactory solution – not only satisfying to the mind, but also, and above all, satisfactory from the humanitarian point of view".

927:

Congress addressed the issues in the Military Commissions Act of 2006 so that enemy combatants and unlawful enemy combatants might be tried under military commissions; however, on 12 June 2008, the Supreme Court ruled, in

970: 741:

by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar

1102:

On 10 November 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantanamo Bay Naval Base as being unlawful, (See

207:

In the relevant treaties, the distinction between privileged and unprivileged is not made textually; international law uses the term combatant exclusively in the sense of what is here termed "privileged combatant".

1299:-ruling (November 2004) the Bush administration has begun using Combatant Status Review Tribunals to determine the status of detainees. By doing so the obligation under Article 5 of the GCIII was to be addressed. 398:

unlawful combatants subject to execution on capture—and a group of small countries headed by Belgium—which opposed the very principle of the rights and duties of armies of occupation and demanded an unlimited

1567:

and essential to American jurisprudence since our nation's founding. This six-year-long nightmare is a lesson in how fragile our constitutional protections truly are in the hands of an overzealous executive.

1448:

On 4 June 2007, in two separate cases, military tribunals dismissed charges against detainees who had been designated as "enemy combatants" but not as "unlawful enemy combatants". The first case was that of

1696:

beginning of the last century in legal literature, military manuals and case law. The connotations given to these terms and their consequences for the applicable protection regime are not always very clear.

2661: 1389:

As of 17 October 2006, when President Bush signed the Military Commissions Act of 2006 into law, Title 10 of the United States Code was amended to include a definition of an "unlawful enemy combatant" as

1176:

detainees must have the ability to challenge their detention before an impartial judge. Though no single opinion of the Court commanded a majority, eight of the nine justices of the Court agreed that the

2425:

The Military Law Review, Vol 156 (June 1998) p.13 ( Major Gary D. Brown in June 1998 was Chief, International and Operational Law at Headquarters, United States Strategic Command, Offutt Air Force Base,

3256:

The court said not only that the detainees have rights under the Constitution, but that the system the administration has put in place to classify them as enemy combatants and review those decisions is

1646:). While critics said it is an improvement over prior versions of military-commissions passed during the Bush administration, it still fails to provide many of the fundamental elements of a fair trial. 672:

Under Article 47 of Protocol I (Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts) it is stated in the first sentence "A

1144:

By 29 March 2005, all detainees at the Guantanamo Bay Naval Base had received hearings before Combatant Status Review Tribunals. The hearings resulted in the release of 38 detainees, and confirmed the

1830:

If civilians directly engage in hostilities, they are considered " unlawful " or " unprivileged " combatants or belligerents (the treaties of humanitarian law do not expressly contain these terms).

1130:

On 7 July 2004, In response to the Supreme Court ruling, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention.

2701: 1008:

advised President Bush that he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism. This applied not only to members of al Qa'ida but the entire

1411:

crimes in particular. Among its more controversial provisions, the law stipulates that a non United States citizen held as an enemy combatant or is awaiting such determination may not seek

1224:

The 13 November 2001, Military Order, mentioned above, exempts U.S. citizens from trial by military tribunals to determine if they are unlawful combatants, which indicates that Padilla and

3466: 3735: 1133:

On 8 November 2004, a federal court halted the proceeding of Salim Ahmed Hamdan, 34, of Yemen. Hamdan was to be the first Guantanamo detainee tried before a military commission. Judge

283:

For countries that have signed the "Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts" (

3136: 2082:

Article 51.3 also covers this interpretation "Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities".

1700:

Human Rights Watch have pointed out that in a judgement, the International Criminal Tribunal for the Former Yugoslavia interpreted the International Committee of the Red Cross,

780:

of the Geneva Conventions are legally bound by Article 6 of the Protocol, which extends how the prosecution of persons should be carried out. For instance, defendants cannot be

311:

enemy combatants). The loss of privileges in that case only occurs upon conviction, i.e. after a competent court has determined the unlawfulness of the conduct in a fair trial.

3675:

Part III : Captivity #Section VI : Relations between prisoners of war and the authorities #Chapter III : Penal and disciplinary sanctions #I. General provisions

3273: 1031:

Most of the individuals detained by the U.S. military on the orders of the U.S. administration were initially captured in Afghanistan. The foreign detainees are held in the

3312: 3745: 1087:

On 30 July 2002, the U.S. District Court for the District of Columbia ruled in Rasul v. Bush, that it did not have jurisdiction because Guantanamo Bay Naval Base is not a

2046:

necessarily falls within the ambit of Convention IV, provided that its article 4 requirements are satisfied. The Commentary to the Fourth Geneva Convention asserts that;

663:

such person, unless he is held as a spy, shall also be entitled, notwithstanding Article 5 of the Fourth Convention, to his rights of communication under that Convention.

902:

Since the 1942 Quirin case, the US. signed and ratified the 1949 Geneva Conventions, which are therefore considered to be part of US federal law, in accordance with the

591:

living in a belligerent country and allied citizens are not protected persons under GCIV as long their states have normal diplomatic relations with a belligerent power.

2042:

behave as if they were professional soldiers and the Trial Chamber, therefore, considers it more appropriate to treat all such persons in the present case as civilians.

762:

The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention.

633:

Art. 42. The internment or placing in assigned residence of protected persons may be ordered only if the security of the Detaining Power makes it absolutely necessary.

586:

State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

165:(ICRC) commentary on the Fourth Geneva Convention: "Every person in enemy hands must be either a prisoner of war and, as such, be covered by the Third Convention; or a 1691:

In response to the U.S.-led military campaign in Afghanistan, a legal advisor at the Legal Division of the ICRC, published a paper on the subject, in which it states:

948: 211:

If there is any doubt as to whether the person benefits from combatant status, they must be held as a POW until they have faced a competent tribunal (Article 5 of the

1271:

ordered the Bush administration to either charge Padilla or release him. He relied on the Supreme Court's ruling in the parallel enemy combatant case of Yaser Hamdi (

2017: 1315:

The CSRT also informed detainees only of general charges against them, while the details on which the CSRT premised enemy combatant status decisions were classified.

1244:(a)); it consequently ordered the government to release Padilla from military custody within thirty days. But agreed that he could be held until an appeal was heard. 842:

has been used for the past century in legal literature, military manuals and case law. The term "unlawful combatants" was first used in U.S. municipal law in a 1942

158: 3067: 441:

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

2938: 2631: 1964: 1611: 1091:

of the United States. This decision was appealed to the D.C. Circuit Court of Appeals, which upheld the decision, (along with a related case in March 2003 – see

2957: 1657:, since the 2002 "Imprisonment of Illegal Combatants Law", makes theoretical distinctions between lawful and unlawful combatants and the legal status thereof. 2647:

Revised ACLU Interested Person's Memo Urging Congress to Reject Power to Detain Suspected Terrorists Indefinitely Without Charge, Trial or a Right to Counsel

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unlawful combatant and lawful combatant. Despite this, the administration held that the detainees will be treated in compliance with the Geneva Convention.

4390: 4035: 1275:), in which the majority decision declared a "state of war is not a blank check for the president when it comes to the rights of the nation's citizens". 1208:" and in the opinion of the administration a U.S. citizen can be an enemy combatant (this was decided by the United States Supreme Court in the case of 1434:

case that it had been considering since 2004. A notice dated the following day listed 196 other pending habeas cases for which it made the same claim.

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There have been a number of legal challenges made on behalf of the detainees held in Guantanamo Bay detention camp and in other places. These include:

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On 12 June 2008, the Supreme Court ruled, in Boumediene v. Bush, 5-4 that Guantanamo captives were entitled to access the US justice system. Justice

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that detainees in Guantanamo Bay Naval Base could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial.

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The assumption that unlawful combatant status exists as a separate category to lawful combatant and civilian is contradicted by the findings of the

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or the Geneva Conventions. So while the former terms are well understood and clear under international law, the term "unlawful combatant" is not.

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Delalic et al. (I.T-96-21) "Celebici" 16 November 1998 Part III B, Applicable law 2. Status of the Victims as "Protected Persons". See: Para. 271

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The designation of some prisoners as unlawful combatants has been the subject of criticism by international human rights institutions; including

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in 2002, Liberian authorities dismissed the complaints of the United States, responding that he had been detained as an unlawful combatant.

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relief. Such detainees must simply wait until the military convene a detainee status review tribunal (under the procedures described in the

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who had been designated as an enemy combatant in 2004. Khadr was accused of throwing a grenade during a firefight in Afghanistan in 2002.

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If the party does not use Article 5 of GCIV, the party may invoke Article 42 of GCIV and use internment to detain the unlawful combatant.

325:, i.e. persons who collect information clandestinely in the territory of the opposing belligerent. Members of the armed forces conducting 4274: 3089: 3779: 3146: 2764:"Prisoners of War or Protected Persons qua Unlawful Combatants? The Judicial Safeguards to which Guantanamo Bay Detainees are Entitled" 2024:

seems to return the Appeal Judgment instead of the Trial Judgment. However, the relevant section of the Judgment is available from the

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does not have the power to hold indefinitely a U.S. citizen without basic due process protections enforceable through judicial review.

2141:"Civilians shall enjoy the protection afforded by this section, unless and for such time as they take a direct part in hostilities". ( 1088: 735:

1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed

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Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a

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However, critics maintain these CSRTs are inadequate to warrant acceptance as a competent tribunal. Their principal arguments are:

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present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

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3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

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AI Index: AMR 51/063/2005: UNITED STATES OF AMERICA Guantanamo and beyond: The continuing pursuit of unchecked executive power

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Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

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the protection of the Geneva Conventions has been disputed. A report by the American Bar Association on the case commented:

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Persons not taking part in fighting in a non-interstate conflict are covered by Common Article 3 of the Geneva Conventions:

3487: 2739: 2167: 2031: 1784: 3605:""Safeguarding the Enemy Within: The Need for Procedural Protections for U.S. Citizens Detained as Enemy Combatants Under 4163: 3189: 2873: 2472: 1480: 1362: 1028:, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism. 997: 808:

The last time that American and British unlawful combatants were executed, after a regularly constituted court, was the

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These terms thus divide combatants in a war zone into two classes: those in armies and organised militias and the like (

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5. Members of crews , who do not benefit by more favourable treatment under any other provisions of international law.

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which they are nationals has normal diplomatic representation in the State in whose hands they are." (GCIV Article 4)

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clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future conflict.

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the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants.

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Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

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a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the

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Most unprivileged combatants who do not qualify for protection under the Third Geneva Convention do so under the

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any future acts of international terrorism against the United States by such nations, organizations or persons.

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4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of

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Ex Parte Quirin -n1- (Nos. 1-7CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA)

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who take a direct part in combat and do not fall into one of the categories listed in the previous section.

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A Small Problem of Precedent: per 18 U.S.C. § 4001(a) and the Detention of U.S. Citizen "Enemy Combatants"

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of the Geneva Conventions, are also bound by Article 45.3 of that protocol which curtails GCIV Article 5.

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is someone who commits belligerent acts but does not qualify for POW status under GCIII Articles 4 and 5.

52:

Article 4 of the Third Geneva Convention does describe categories under which a person may be entitled to

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What is an "Unlawful combatant", and why it matters: The Status Of Detained Al Qaeda And Taliban Fighters

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that no competent tribunal had found that Hamdan was not a prisoner of war under the Geneva Conventions.

4400: 4234: 4066: 4008: 3511:, 31 July 2007, website of the BBC. See paragraph 61 for details of British Rules of Engagement in the 1615: 943: 3023: 2584: 1184: 4101: 4050: 3943: 2702:

s:Ryuichi Shimoda et al. v. The State#II. Evaluation of the act of bombing according to municipal law

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Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1958)

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Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees

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or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the

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changes to that of a civilian which may give them some rights under the Fourth Geneva Convention.

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Authorization for Use of Military Force: Padilla v. Bush: Jose Padilla under the Joint Resolution

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Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include:

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states that the status of detainees whose combatant status is in doubt should be determined by a

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Warriors without rights? combatants, unprivileged belligerents, and the struggle over legitimacy

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2. Members of other militias and members of other volunteer corps, including those of organized

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The Gitmo Fallout: The fight over the Hamdan ruling heats up—as fears about its reach escalate.

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The laws and Constitution are designed to survive, and remain in force, in extraordinary times.

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in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA.

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Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War

1702:

Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War

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B. The following shall likewise be treated as prisoners of war under the present Convention:

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Members of other militias and members of other volunteer corps, including those of organized

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