Treatment of Detainees members of Al-Qaeda held in Guantanamo Naval Base, captured in 2001 by the United States during the conflict in Afghanistan
After the terrorist attacks against the United States on September 11, 2001, two United Nations Security Council resolutions (resolutions 1368 and 1373) acknowledged right of Self-defence of the US following the article 51 of the UN Charter.1 The US requested the Taliban regime (the government at the time in Afghanistan) assistance to capture Al-Qaeda, whose main infrastructure was established in the country.2 The refusal of the Taliban resulted in an international armed conflict (hereinafter IAC) against Afghanistan, being the Taliban the de facto government-hosting terrorists, and against Al-Qaeda that was de facto under effective control of the Taliban.3 As a result, during the conflict, members of the Taliban regime and Al-Qaeda were detained sharing the same fate, indefinite detention in Guantanamo.
The first detainees arrived to the US Naval Base in Guantanamo Bay in Cuba, in January 2002.4 The detaining power, in this case, has the obligation to differentiate among those that would have combatant status (protected by the 3rd Geneva Convention), and those that would be civilians (would be protected by the 4th Geneva Convention).5 The Taliban, as members of the armed forces of a High Contracting Party, get automatically prisoner of war status (hereinafter POW).6 Concerning Al-Qaeda members, to be protected by the POW status, they should, either fulfil the requirements of article 4.A.(2) of the third Geneva Convention (hereinafter GCIII) for “militias or other volunteer corps” (responsible command, fixed distinctive sign, carry arms openly and respecting the laws and customs of war), or being integrated formally into the military forces of the Party (art. 4.A.(1)). So far, there is no evidence that Al-Qaeda personnel was incorporated into the Taliban military units,7 and they do not fulfil the four conditions of article 4 GC III.8 It is therefore generally accepted that Al-Qaeda members captured do not benefit from combatant and POW status.9 In this scenario, Al-Qaeda members cannot be considered combatants because they do not fulfil the requirements of the GCIII for POW status, and because the law of conduct of hostilities assigns one of the two mutually exclusive categories (combatant or civilian), Al-Qaeda members may be considered civilians.10 Indeed, under IHL the definition of civilian has a negative connotation,11 which means that those who are not members of armed forces or levee en masse, are civilians.12 This qualification implies that Al-Qaeda members would be protected by the fourth Geneva Convention (Hereinafter GCIV).13 As a result, the US would be entitled to prosecute them domestically for having directly participated in hostilities (because there is no immunity from prosecution for civilians even if for lawful acts of war), and for every act of terrorism committed.14 Actually, civilians who directly participate in hostilities do not become combatants, they just loose their protection while they participate, but remain in their civilian status, and are prosecutable for acts that under IHL would not be prohibited, unless they have been formally integrated into armed forces of a party to the conflict.15 However, the US was not entitled to deport them out of the occupied territory to Guantanamo, following articles 49 and 76 GCIV.16 Instead, the Detaining power has the right to intern them administratively for “imperative security measures” that must be revised every six months with right to appeal (which is not derogable); these shall cease as soon as the reason for internment no longer exist or the close of hostilities.17 They can also make derogations from the “protective regime of the convention for persons engaged in hostile activities”.18 However, there are some rights that are not derogable either, such as freedom from torture (Article 32 of the Fourth Convention, Article 75 (2 a & e) of Additional Protocol I; and in any case it is jus cogens), and keeping detainees in Guantanamo with the uncertainty of what will happen to them amounts to a mental suffering that could be regarded as cruel and inhuman treatment (or even torture).19
1 Council of Europe, (2007), “Guantanamo : Une violation des droits de l’homme et du droit international?”, Council of Europe Publishing. Pp. 41
3 Sassoli, M. (2004) “The Status of Persons Held in Guantánamo under International Humanitarian Law”, Journal of International Criminal Justice 2,1 , Oxford University Press, Pp. 96-106 Available at : http://jicj.oxfordjournals.org/content/2/1/96.full.pdf
4 Council of Europe, Supra note 1
5 Sassoli, Supra note 3
6 Article 4.A (1) Convention (III) relative to the Treatment of Prisoners of War. Geneva, 12 August 1949.
7 Aldrich, G. (2002), “The Taliban, al Qaeda, and the Determination of Illegal Combatants”,
Extract from "Humanitäres Völkerrecht", No 4/2002, a review published by the German Red
Cross and the "Institute for International Law of Peace and Armed Conflict" in Bochum. Available at : https://www.icrc.org/eng/assets/files/other/george_aldrich_3_final.pdf
8 Human Rights Watch (2002) “Background Paper on Geneva Conventions and Persons Held by U.S. Forces”, Human Rights Watch Press Backgrounder, Available at :
9 Arai- Takahashi, Y. (2002) “Diesentangling legal quagmires: the legal characterization of the armed conflicts in Afganistan since 6/7 October 2001 and the question of prisoners of war status” in “Yearbook of International Humanitarian Law” Volume 5 2002 by Fisher and McDonald, Cambridge University press, Pp. 98-105.
10 Melzer, N. (2014)“ The principle of disctinction between civilians and combatants” at “The Oxford Handbook of International Law in Armed Conflict” edited by Clapham and Gaeta, Oxford Handbooks Online, Chapter 13, Pp 306
11 Article 50, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
12 Melzer, Supra note 10
13 Sassoli M. & Olson, L., (2008)‘The Relationship Between International Humanitarian and Human Rights Law where it Matters: Admissible killing and Internment of Fighters in Non- International Armed Conflicts’. International Review of the Red Cross Volume. 90, No. 871, Pp. 599-627. Available at : https://www.icrc.org/eng/assets/files/other/irrc-871-sassoli-olsen.pdf
14 Melzer, Supra note 10, p. 324
16 Sassoli, Supra note 3
17 Articles 132.1 and 133.1 Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949 and 75.3 Additional protocol I, Supra note 11.
18 Sassoli, Supra note 3
19 Inter-American Commission on Human Rights, “Statement of the United Nations Special Rapporteur on torture at the Expert Meeting on the situation of detainees held at the U.S. Naval Base at Guantanamo Bay”, Washington DC, 3 October 2013. Available at :http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=13859&#sthash.f830m WJm.dpuf