By Jacob Tucker JD Candidate, American University Washington College of Law ’24
- INTRODUCTION
This article will examine the United States’ obligation under International Humanitarian Law (IHL) and International Human Rights Law to repatriate, or otherwise release, Taliban detainees held at Guantanamo Bay. The Bush Administration failed to correctly apply international humanitarian law (IHL), specifically provisions of Geneva Convention IV, in capturing and detaining Taliban fighters, and restrictions outlined in Geneva Convention III, which protect prisoners of war (POWs). This article’s focus will be narrowed to the Taliban detainees, although members of al-Qaeda were detained as well.
- CONTEXT: 9/11, Invasion and Capture and Classification of Conflict
The United States and the international coalition began invading Afghanistan after the September 11 attacks, resulting in the capture and detention of Taliban fighters under the administration’s pretext that determined they were “terrorist suspects”.[1] On November 13, 2001, President George W. Bush issued a Military Order that formalized and facilitated the detention of Taliban militants.[2] On December 27, 2001, Donald Rumsfeld, the Secretary of Defense, announced the Taliban militants would be placed in Guantanamo Bay.[3] The first detainees arrived at Guantanamo Bay on January 11, 2002.[4]
The International Committee for the Red Cross (ICRC) defines an international armed conflict as a conflict between states, applying to all cases in which two or more state parties declare war on each other.[5] The United States’ invasion of Afghanistan escalated the conflict to an international armed conflict. Taliban fighters were seen as regular armed forces fighting under the authority of the ruling Taliban government.[6]
Upon detaining the captured Taliban as “suspected terrorists,” the Bush administration faced a choice: to accord those detained as prisoners of war (POWs) or not. In weighing this choice, the administration produced legal memoranda outlining legal and policy reasons for refusing to accord them POW status. One memo, prepared by the Office of Legal Counsel, suggested that Taliban detainees might not meet the requisite criterion, a command and control apparatus, use of uniforms etc.., that affords POW status .[7] The memo noted, “the President could determine categorically that all Taliban Prisoners . . . do not fall within the legal definition of [POW].”[8] On February 7, 2002, President Bush issued a memo that declined to accord Taliban detainees POW status.[9]
- LEGAL ANALYSIS
Given the international nature of the conflict, the IHL rules governing international armed conflicts under the Geneva Conventions apply. Customary international law, found in Additional Protocol 1, and International Human Rights Law with the International Covenant on Civil and Political Rights (ICCPR) also apply.[10]
Article 118 of the Geneva Convention III states, “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities.”[11] Likewise, Article 133 of the Geneva Convention IV states, “[i]nternment shall cease as soon as possible after the close of hostilities.”[12] Article 134 further provides that states “shall endeavour, [sic] upon the close of hostilities or occupation, to ensure the return of all internees to their last place of residence, or to facilitate their repatriation.”[13] The International Criminal Tribunal for Yugoslavia summarized the relationship between the application of Geneva Convention Articles III and IV, stating: “[t]here is no gap between the Third and Fourth Geneva Conventions . . . [i]f an individual is not entitled to protection of the Third Convention . . . he or she necessarily falls within the ambit of Convention IV.”[14]
Under customary international law, Article 45 of Additional Protocol 1 of the Geneva Convention provides that, “[a] person who takes part in hostilities and falls into the power of an adverse party shall be presumed to be a [POW] and therefore shall be protected by the Third Convention.”[15] Article 75 establishes a floor threshold for treatment, stating that detainees “shall enjoy, as a minimum, the protection provided by this Article.”[16] It also states that those detained “shall be released with the minimum delay possible and in any event as soon as the circumstances justifying the arrest, detention or internment have ceased to exist.”[17]
Furthermore, under International Human Rights Law, Article 9(1) of the ICCPR states,“[n]o one shall be subjected to arbitrary arrest or detention.”[18] During international armed conflicts the Geneva Conventions apply in full, binding both parties to the conflict.[19] The ICJ found that the ICCPR “is applicable in respect of acts done by a State in the exercise of its jurisdiction outside its own territory.”[20] Thus, the ICCPR applies extraterritorially if the state exercises sufficient control over the person, regardless of their nationality or how the state obtained control.[21] The Taliban detainees have been sufficiently under United States control through imprisonment in Guantanamo Bay.[22]
In addition to IHL governing the methods of armed conflict, further vital protections, such as the repatriation of POWs and the release of civilians from internment, are not prompted until the conflict ends.[23] The United States must follow these obligations.[24] On April 14, 2021, President Joseph Biden announced the planned withdrawal of United States troops from Afghanistan, in which he concluded that “it’s time to end America’s longest war.”[25] On August 30, 2021, President Biden remarked, “[n]ow, our 20-year military presence in Afghanistan has ended.”[26] The Chairman of the Joint Chiefs, Mark Milley, confirmed that “our military mission has now come to an end.”[27]
Amid the Bush administration’s detention of terrorist suspects in Guantanamo Bay, the Supreme Court heard Hamdi v. Rumsfeld, which challenged the detention of Yaser Hamdi, an American Detainee.[28] Hamdi’s petition argued that there was no precise date for his release, only a date for the end of the hostilities.[29] Justice O’Connor, writing for the Supreme Court, notes Congress has authorized the detention because “detention to prevent a combatant’s return to the battlefield is a fundamental incident of waging war.”[30] The Court stated if “[U.S.] troops are still involved in active combat in Afghanistan, those detentions are . . . authorized by the AUMF.”[31] The Court further noted that “The United States may detain, for the duration of these hostilities, individuals legitimately determined to be Taliban combatants,”[32]in effect placing a temporal limitation on their holding. It logically follows that current detention centers are no longer authorized because hostilities have ended. This principle is further supported when applying the Geneva Convention III.
The intention of Article 118 of Geneva Convention III is to facilitate the release of POWs to ensure nations do not detain them indefinitely.[33] The POW provisions of the Geneva Convention III were applied liberally without unnecessary restrictions.[34] The Bush administration should have accorded POW status as required at the time of capture, rather than classifying the Taliban detainees as unprivileged combatants without Article 5 tribunals.[35] Had that occurred, Articles 118 and 119 would have applied at the end of hostilities, and the United States would have been obligated to repatriate the Taliban detainees.[36]
However, because the Bush administration did not accord POW status, the law was misapplied.[37] The Taliban detainees should be reclassified as POWs for repatriation; this would ensure that states in the future cannot similarly misclassify POWs and detain them indefinitely.[38] The ICRC Commentary noted the mutually reinforcing relationship of the Geneva Conventions III and IV stating: “[e]very person in enemy hands must have some status under international law. . . nobody in enemy hands can be outside the law.”[39]
The United States is further obligated to facilitate the release of the Taliban detainees by applying the Geneva Convention IV Articles 133 and 134.[40] Those articles stipulate that as soon as the reasons necessitating the detention have ended, the detention must end.[41] The reason for the United States detaining the detainees was due to the war in Afghanistan; now that the war is over the circumstances necessitating their detention have ceased.[42]
The United States’ failure to release Taliban detainees after the war violates its obligation to release them when the circumstances necessitating their release occur. Additionally, detention under Article 75 must never be prolonged.[43]The U.S. held the detainees for now, four years past the end of the war, demonstrating that their detention is prolonged and indefinite in violation of Article 75.[44]
It is a clear-cut principle of IHL that if the detention is lawful, the detention cannot violate Article 9 of the ICCPR or it would be considered arbitrary detention.[45] When determining whether a detention violates Article 9 and is thus considered arbitrary, one examines the “circumstance of detention, [and] above all its proportionality.”[46] Moreover, a lawful detention can become arbitrary if it is “unduly prolonged”[47] and “without proper justification.”[48] Therefore, a finding of arbitrary detention would not upset the balance of the past twenty years of counter-terrorism efforts. Detentions initially considered non-arbitrary/lawful could ultimately be considered arbitrary if the detentions are “unduly prolonged” following a war.[49] The Taliban’s detention could be considered “unduly prolonged” and subsequently arbitrary as their confinement was extended past the end of the war.[50] Further, the UN Working Group on Arbitrary Detention expounded that the United States’ detention of the Taliban, without determining their POW status, could be arbitrary in and of itself.[51]
- CONCLUSION
In the ICRC Commentary, Pictet aptly noted, “[T]he Geneva legislation goes farther than a simple treaty . . . [i]t protects a humanitarian heritage which is not, and must not be allowed to be, at the mercy of temporal political interests.”[52] The consequences resulting from the Bush Administration’s cherry-picking of the laws of war it chose to follow, deeming Geneva Convention provisions as obsolete, carry on today. The United States must ensure that the mistakes of the past do not continue to define the future by releasing the remaining Taliban detainees. Geneva Conventions III and IV, customary international law, the ICCPR, and the United States Supreme Court in Hamdi support the release of the Taliban detainees. The continued detention of Taliban detainees is contrary to the preceding sources of law.
FOOTNOTES:
[1] See Robert K. Goldman, Research Handbook on Human Rights and Humanitarian law: Extraterritorial Application of the Human Rights to Life and Personal Liberty, Including Habeas Corpus, During Situations of Armed Conflict, 104 (2013).
[2] See George W. Bush, Detention Treatment and Trial of Certain Non-Citizens in the War against Terrorism, 66 F.R. 57833 (Nov. 13, 2001); see also Alfred de Zayas, Human Rights and Indefinite Detention, Int’l Rev. of the Red Cross, 24 (Mar. 2005).
[3] See Donald Rumsfeld, Department of Defense News Briefing – Secretary Rumsfeld and Gen. Myers 2:00 p.m. EST, (Dec. 27, 2001), https://avalon.law.yale.edu/sept11/dod_brief137.asp.
[4]See The Guantánamo Docket, The New York Times, (Oct. 29, 2022), The Guantánamo Docket: Detainees at the Prison at Guantánamo Bay – The New York Times (nytimes.com). [hereinafter Guantanamo Docket].
[5] Jennifer K. Elsea, Cong. Research Serv., RL31367, Treatment of “Battlefield Detainees” in the War on Terrorism, 10, (2007); see also Do the Laws of War Apply to the War on Terror?, Public Meeting of the American Society of International Law, (Feb. 13, 2002) (comments of Prof. Robert Goldman).
[6] See Id.
[7] See Jay Bybee, Memorandum for Alberto R Gonzales Counsel to the President, and Willaim J. Haynes I1, General Counsel of the Department of Defense Re: Application of Treaties and Laws to al Qaeda and Taliban detainees, 30-31, Department of Justice Office of Legal Counsel, National Security Archive, (Jan. 22, 2002). https://nsarchive2.gwu.edu/torturingdemocracy/documents/20020122.pdf
[8] Id; See also Alberto R Gonzales, Memorandum for the President, Decision re: Application of Geneva Convention on Prisoners of War to the Conflict with al Qaeda and the Taliban, White House Counsel’s Office, 2, found at National Security Archive. https://nsarchive2.gwu.edu/NSAEBB/NSAEBB127/02.01.25.pdf. (Arguing the need to gain information about terror plots rendered some provisions of the Geneva Convention “obsolete . . . [and] quaint”).
[9] George W. Bush, Humane Treatment of a1 Qaeda and Taliban Detainees, (Feb. 7, 2002) 1 ¶¶1, 2, 2(a)-(d), (stating the September 11th attacks “usher[ed] in a paradigm . . . [which] require[d] new thinking in the law of war. . . .”)
[10] See infra.
[11] Geneva Convention relative to the Treatment of Prisoners of War, arts. 4, 5, 118, Aug. 12, 1949
6 U.S.T. 3316; 75 U.N.T.S. 135 [hereinafter Geneva Convention III].
[12] Geneva Convention relative to the Protection of Civilian Persons in Time of War, arts. 42, 133-134, Aug. 12, 1949, 6 U.S.T. 3516; 75 U.N.T.S. 133 [Hereinafter Geneva Convention IV]
[13] Geneva convention IV art. 287.
[14] Prosecutor v. Delalic et al., Judgment IT-96-21-T, 16 November 1998, ¶271.
[15] Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to the Protection of Victims of International Armed Conflicts, arts. 43, June 8, 1977, 1125 U.N.T.S. 3. [Hereinafter Additional Protocol 1].
[16] Id. at Article 75.
[17] Id.
[18] International Covenant on Civil and Political Rights, Dec. 16, 1966, Article 9(1), 999 U.N.T.S. 171; S. Exec. Doc. E, 95-2 (1978); S. Treaty Doc. 95-20; 6 I.L.M. 368 (1967).
[19] See Elsea supra note 5 at 10-11.
[20] ICJ Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, ¶111 (Jul. 9, 2004).
[21] See Id.
[22] See generally Guantanamo Docket supra note 4.
[23] See Geneva Convention III at arts. 118 and 119; and Geneva Convention IV at arts. 133 and 134.
[24] See Id.
[25] President Joseph Biden, White House. Remarks by President Biden on the Way Forward in Afghanistan, (Apr. 14, 2021) https://www.whitehouse.gov/briefing-room/speeches-remarks/2021/04/14/remarks-by-president-biden-on-the-way-forward-in-afghanistan/.
[26] President Joseph Biden, White House. Statement by President Joe Biden, (Aug. 30, 2021) https://www.whitehouse.gov/briefing-room/statements-releases/2021/08/30/statement-by-president-joe-biden/#:~:text=They%20have%20done%20it%20with,in%20Afghanistan%20beyond%20August%2031. [hereafter ‘White House Statement End of War]
[27] Lloyd J. Austin III and Mark Milley, Press Briefing, Secretary Of Defense Austin and Chairman of the Joint Chiefs Of Staff Gen. Milley Press Briefing on the End of the U.S. War in Afghanistan (Sept. 1, 2021) https://www.defense.gov/News/Speeches/Speech/Article/2765535/secretary-of-defense-austin-and-chairman-of-the-joint-chiefs-of-staff-gen-mille.
[28] Hamdi v Rumsfeld 542 U.S. 507, 509. See Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004).
[29] See id. at 520.
[30] Id. at 518.
[31] Id. at 521.
[32] Id. (emphasis added)
[33]See Zayas supra note 2 at 21.
[34] See ICRC. Geneva Conventions of 12 August 1949: Commentary on the Geneva Convention Relative to the Treatment of Prisoners of War, 47 (Jean S. Pictet, Ed. 1960). [hereinafter ICRC Commentary]
[35] See Jay Bybee Memo supra note 7 at 30-31; See also Robert K. Goldman & Brian D. Tittermore, Unprivileged Combatants and the Hostilities in Afghanistan: Their Status and Rights Under International Humanitarian Law and Human Rights Law, 27-29, (Dec. 2002).
[36] See Geneva Convention III at arts. 118 and 119.
[37] See Elsea supra note 5 at 29-32, 41-42.
[38] Jelena Pejic, Procedural Principals and Safeguards for Internment/Administrative Detention in Arme Conflict and Other Situations of Violence, 87 Int’l Rev. of the Red Cross, 381 (Jun. 2005).
[39] ICRC, Geneva Convention Relative to the Protection of Civilian Persons in Time of War: Commentary, 51 (Jean S. Pictet, 1949).
[40] See supra Geneva Convention IV arts 133 and 134.
[41] See id.
[42] See id.; see also White House Statement End of War supra note 26.
[43] See Goldman, supra note 1 at 117.
[44] See id.; see also Guantanamo Docket supra note 4.
[45] See Goldman, supra note 1 at 119.
[46] Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary, 236 ¶51 (2nd revised ed. 2005).
[47] See Zayas supra note 2 at 18.
[48] Nowak supra note 46 at 226-227 ¶33.
[49] See Zayas supra note 2 at 18 and accompanying text of note 107.
[50] See Zayas supra note 2 at 18 and accompanying text of note 107.
[51] See Elsea supra note 5 at 5.
[52] ICRC Commentary supra note 41 at 86.