Unlawful combatant
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 Third Geneva Convention (GC III) to decide the issue.
The following categories of combatants qualify for prisoner-of-war status on capture: 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" (Protocol I), 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.
They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
[7] 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.
[23] 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 permit such release to some extent.
[24] In the opinion of Major Gary D. Brown, United States Air Force (USAF), this means that "[T]he Hague Convention specified that parole breakers would forfeit their right to be treated as prisoners of war if recaptured.
[28] On 7 October 2021, a former Taliban 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 War in Afghanistan[29] (the conflict became non-interstate not long after the United States invasion of Afghanistan ended on 7 December 2001).
signed and ratified the 1949 Geneva Conventions, which are therefore considered to be part of US federal law, in accordance with the Supremacy Clause in the Constitution of the United States.
[38] In addition, the US Supreme Court invalidated the premise, in Hamdan v. Rumsfeld, by ruling that Common Article Three of the Geneva Conventions applies to detainees in the War on Terror and that the Military Commissions that were used to try suspects were in violation of U.S. and international law.
[40]Using the authorization granted to him by Congress, on 13 November 2001, President Bush issued a Presidential Military Order: "Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism"[41] which allowed "individuals ... to be detained, and, when tried, to be tried for violations of the laws of war and other applicable laws by military tribunals", 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.
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.
[44] Despite opposition from the U.S. State Department, which warned against ignoring the Geneva Conventions, the Bush administration thenceforth began holding such individuals captured in Afghanistan under the military order and not under the usual conditions of Prisoners of War.
[45] For those U.S. citizens detained under the military order, U.S. officials, such as Vice President Dick Cheney, argue that the urgency of the post-9/11 environment called for such tactics in administration's war against terrorism.
In Rasul v. Bush, 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",[46] and that as the United States had complete jurisdiction, the federal courts have the authority under the federal habeas corpus statute to decide whether foreign nationals (non-U.S. citizens) held in Guantanamo Bay were rightfully imprisoned.
On 23 September 2004, the United States Justice Department agreed to release Hamdi to Saudi Arabia, where he is also a citizen, on the condition that he gave up his U.S. citizenship.
The Court recognized the power of the government to detain unlawful combatants, but ruled that detainees must have the ability to challenge their detention before an impartial judge.
On 8 May 2002, José Padilla, also known as Abdullah al-Muhajir, was arrested by FBI agents at Chicago's O'Hare International Airport and held as material witness on the warrant issued in New York (state) about the 2001 9/11 attacks.
The order justified the detention by leaning on the AUMF which authorized the President to "use all necessary force against those nations, organizations, or persons" 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 Ex parte Quirin).
Their principal arguments are: Notable cases pointed to by critics as demonstrating the flawed nature of the procedure include: Mustafa Ait Idir, Moazzam Begg, Murat Kurnaz, Feroz Abbasi, and Martin Mubanga.
The fact that no status determination had taken place according to the Third Geneva Convention was sufficient reason for a judge from the District Court of Columbia dealing with a habeas petition, to stay proceedings before a military commission.
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 habeas corpus relief.
[59] Of the first three war crimes cases brought against Guantanamo Bay detainees under the Military Commissions Act, one resulted in a plea bargain and the two others were dismissed on jurisdictional grounds.
[61] On 12 June 2008, the Supreme Court ruled, in a 5-4 opinion in Boumediene v. Bush, that Guantanamo captives were entitled to access the US justice system and to habeas relief.
[67] Justice Anthony Kennedy wrote in the majority opinion: The laws and Constitution are designed to survive, and remain in force, in extraordinary times.The Court also ruled that the Combatant Status Review Tribunals were "inadequate".
[64] Ruth Bader Ginsburg, Stephen Breyer, David Souter and John Paul Stevens joined Kennedy in the majority.
By granting the writ of habeas corpus, the Supreme Court recognizes a rule of law established hundreds of years ago and essential to American jurisprudence since our nation's founding.
When asked by Senator Lindsey Graham "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?"
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.
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.
[1][9] Critics of the U.S. internment at Guantanamo Bay worry that the introduction of the unlawful combatant status sets a dangerous precedent for other regimes to follow.
