Guantanamo Prison and Prisoners of War Essay Example

  • Category:
    Law
  • Document type:
    Assignment
  • Level:
    Undergraduate
  • Page:
    2
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    1353

Guantanamo Prison and Prisoners of War

Guantanamo Prison and Prisoners of War

Guantanamo Prison and Prisoners of War

1.0 Prisoner of War Vs Guantanamo Bay Prisoners Context

Whenever organised military encounter each other, one has to be subdued or in the process there are those who are captured. The greatest sin of the captured people is that they belonged to the opposing military during the warfare period and this is their difference with civilian prisoners.1 It is indicated that various armed conflicts have exploited loopholes in the POW convention so us to meet their hidden political agenda. A case example is the detention of individuals thought to be terrorists under the war on terror operation.2

One of the later responses (war on terror) by America government after the terrorist attack of 9/11 was the authorisation by congress to convert Naval Station at Guantanamo Bay Cuba as a detention centre as they await prosecution.3 This development has elicited fierce criticism. The immediate president Mr. Bush labelled most of detainees as ‘worst of the worst’ yet they have never been charged in a law court as criminals. This defiance by the executive arm has continued despite of the ruling by Supreme Court that those detainees have habeas corpus.4 On the other hand, those who are for proactive security sees it as justified means since these groups of people through tactical approaches undermines the security of America.

2.0 Framing Guantanamo Bay and Prisoner of War in the Context of International Humanitarian Law

International humanitarian law is anchored on the principle that during combat, combatants should make a distinction between the armed forces and the civilians. As per the St. Petersburg Declaration, the ultimate goal of any military during their engagement is to weaken the military forces of the enemy and not civilians. The same principle is underlined by the Hague regulation that prohibits bombardment of undefended towns, dwellings, villages and building.5 How this is critical to the topic under consideration is the nexus between international humanitarian law and Prisoners of War (POW). Thus, humanitarian law advocates deliberately or unknowingly for application of the concept of POW in its narrowest context of POW consisting of those captured by a belligerent power during war and belongs to regularly organised armed forces. Thus, this conceptualisation excludes informal groupings like militias and terrorists.

It is the above conceptualisation that is not in sync with the current trends and hence the difficulty of establishing if people detained in Guantanamo bay are POW. In the past 30 years, there has been a shift in trends in international arena in relation to global armed conflict. For instance in World War 1 and 2, Prisoners of Wars emerged because there were direct conventional military attacks among nations. These trends has changed over time as result of emergence of none state insurgents such as guerrilla movements, terrorists who are fighting as much as states.6 Moreover, attacks organised by such terror groups might be deadly as compared to state sponsored ones. This is the exact situation that America found itself during the war on terror. The critical concern is should they be treated as POWs or as just mere criminals.

3.0 Are the Detainees of Guantanamo Bay POWs?

There has been a debate as what constitutes prisoner of war (POW). One of the contentions which constitute a narrow view of POW that has emerged is whether POW should be limited to soldiers captured during battle having uniform of a rival nation or should it include subscribers of unconventional fighting forces or terrorists? For instance, should individuals captured by U.S forces in the process of countering terrorists in other countries which are not directly in war with it be considered POW?7 Since the 9/ 11 attacks, America decided to take terrorists head on and those arrested were detained in Guantanamo bay.8 In exact context, should the detainees in Guantanamo bay be considered POWs?

The answer to this contention can be approached from yes and no perspective. However, to frame this discourse, it is prudent to revisit the contentious question of who is POW? Is it restricted to conventional soldiers captured on the field of battle wearing uniform of a rival nation? Are they also members of unconventional fighting forces such as rebel armies, militias, what about terrorists who are member of terror groups?9

From the first perspective of military people captured on the field of battle wearing uniform of a rival nation then Guantanamo bay detainees is not POW. The third Geneva Convention only covers members of regular armed forces.10 The same is affirmed when it is noted that “international legal norms traditionally bind only state action”.11 Is these two expectations are to be adhered to then most of those detained in Guantanamo bay doesn’t meet this normative expectation. To contextualise this observation, it is a recorded fact that most of the detainees originated from 40 different countries.12 The question is these countries with their formal military didn’t engage with the American one and thus those detained as result of war on terror operations aren’t POW. However, if taken from the general observation of enemy combatant then some qualify to be POW.

4.0 POW Rights According to International Humanitarian Law

The third Geneva Convention of 1949 after World War 2 which were later amended in 1977 outlines various rights, protection and treatment. The first is that POW can’t be prosecuted for engaging in the combat since the detention is to bar one from participating further into the conflict. Thus must be discharged at the end of the conflict. The only possible prosecution is war crime and not acts of violence. Lastly, they should be subject to humane conditions in relation to food, accommodation & clothing among others.13

References

Denbeaux, Mark P. and Jonathan Hafetz, eds. The Guantanamo lawyers: inside a prison outside the law. New York: New York University Press, 2009.

Dickinson, Laura A. «The State Action Doctrine in International Law,» Studies in Law, Politics, and Society 56, no.1 (2011): 213-232.

Fridell, Ron. Open for debate: prisoners of war. Tarrytown, NY: Marshall Cavendish Benchmark, 2008.

Garcia, Michael John, Jennifer K. Elsea, R. Chuck Mason and Edward C. Liu. Closing the Guantanamo Detention Center: Legal Issues. Washington: Congressional Research Service, 2013.

Henckearts, Jean-Marie, Louise Doswald and Carolin Alvermann, eds. Customary international humanitarian law: rules. Cambridge: Cambridge University Press, 2005.

Prabhat, Devyani. «After 9/11: Guantánamo and the mobilization of lawyers,» Studies in Law, Politics, and Society 54, no. 1 (2011): 213-259.

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

Scheipers, Sibylle, ed. Prisoners in war. Great Claredon Street, Oxford: Oxford University Press, 2010.

1 Ron Fridell, Open for debate: prisoners of war, 10.

2 Sibylle Scheipers, ed, Prisoners in war (Great Claredon Street, Oxford: Oxford University Press, 2010), 1.

3 Michael John Garcia et al., Closing the Guantanamo Detention Center: Legal Issues (Washington: Congressional Research Service, 2013), 1.

4 Devyani Prabhat, «After 9/11: Guantánamo and the mobilization of lawyers,» Studies in Law, Politics, and Society 54, no. 1 (2011): 214.

5 Jean-Marie Henckearts, Louise Doswald and Carolin Alvermann, eds, Customary international humanitarian law: rules (Cambridge: Cambridge University Press, 2005), 3 & 4.

6 Laura A. Dickinson, «The State Action Doctrine in International Law,» Studies in Law, Politics, and Society 56, no.1 (2011): 214.

7 Ron Fridell, Open for debate: prisoners of war (Tarrytown, NY: Marshall Cavendish Benchmark, 2008), 10 & 11.

8 Mark P. Denbeaux and Jonathan Hafetz, eds., The Guantanamo lawyers: inside a prison outside the law (New York: New York University Press, 2009), 1.

9 Ron Fridell, Open for debate: prisoners of war, 10.

10 Sibylle Scheipers, ed, Prisoners in war, 5.

11 Laura A. Dickinson, «The State Action Doctrine in International Law,» Studies in Law, Politics, and Society 56, no.1 (2011): 214.

12 Mark P. Denbeaux and Jonathan Hafetz, eds., The Guantanamo lawyers: inside a prison outside the law, 1.

13 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.