Competent Tribunal is a term used in Article 5 paragraph 2 of the Third Geneva Convention, which states: 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 determined by a competent tribunal.The International Committee of the Red Cross (ICRC) commentary on Article 5 of the Third Geneva Convention says on the issue of competent tribunal that:
This amendment was based on the view that decisions which might have the gravest consequences should Hot [sic] be left to a single person, who might often be of subordinate rank.
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).
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).
Under U.S. military regulations, a Tribunal would be composed of: Possible determinations are: During the 1991 Gulf War, some detainees initially categorized as POWs were found to be innocent civilians who had surrendered to receive free food and lodging.
"[3] This term began to receive a lot of attention when President George W. Bush announced that the United States would follow the Geneva Conventions as it was strictly interpreted, and that the war in Afghanistan did not fall within that purview.
[4] As such, President Bush stated that fighters captured in the war in Afghanistan would be treated as "unlawful combatants".
Although it ruled against the Bush administration on the legality of the Guantanamo military commissions, it also determined that these detainees were due the rights accorded under the more limited Common Article 3.