detainees - including those captured outside of Afghan territory or in connection with the "War on Terror" - are entitled to the protection provided by human rights law, including CAT, the ICCPR and customary international law. Second, notwithstanding its position on the POW status of Taliban and Al Qaeda detainees, the Administration has undertaken that it will treat all detainees in a manner consistent with the principles of Geneva III. Accordingly, the interrogation techniques reportedly being used on detainees at Bagram and other U.S. detention facilities should be considered in light of the text and spirit of the Geneva Conventions. Third, if there is doubt as to whether a detainee meets Geneva III criteria for POW status, that detainee is entitled to interim POW status until a "competent tribunal" determines his or her legal status. Because the U.S. government has not convened “competent tribunals" to Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Article 75 provides that "persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions" "shall be treated humanely in all circumstances" and that each state Party "shall respect the person, honour, convictions and religious practices of all such persons." Paragraph 2 of Article 75 prohibits, "at any time and in any place whatsoever, whether committed by civilian or military agents": "violence to the life, health, or physical or mental well-being of persons, in particular... torture of all kinds, whether physical or mental," "corporal punishment,” and “mutilation”; "outrages upon personal dignity, in particular humiliating and degrading treatment... and any form of indecent assault"; and "threats to commit any of the foregoing acts." The U.S. rejection of Additional Protocol I was explained in a presidential note to the Senate in the following terms: "Protocol I.... would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations...." See 1977 U.S.T. LEXIS 465. determine the status of any detainees, all detainees for whom POW status is in doubt are entitled Finally, even accepting the interpretation that the Third and Fourth Geneva Conventions contain gaps leaving certain detainees captured in the War in Afghanistan (i.e., citizens of co-belligerents and neutrals) without POW or "protected person” civilian status, the Geneva Conventions are supplemented by human rights law and customary international legal norms which have the force of law in the United States. For example, even where a detainee may not be entitled to a hearing under Geneva III, he is entitled to a hearing to determine the justification for his detention under Article 9 of the ICCPR. Many detainees may not be combatants at all and may be simply innocent bystanders mistakenly detained or wrongfully 88 turned over to the U.S. military by the Northern Alliance. They deserve prompt hearings in which they are given an opportunity to establish their non-combatant status. 87 See Geneva III, Art. 5; see also U.S. Dept. of Army, Field Manual 27-10, "Law of Land Warfare", Art. 71 (1956); U.S. Dept. of Army, REGULATION 190-8 Military Police, “Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees," § 1-5 (a)(2) (1997). 88 See, e.g., Dep't of Defense, Secretary Rumsfeld Media Availability en route to Camp X-Ray (Jan. 27, 2002) (available at http://www.defenselink.mil/news/Jan2002/t01282002_t0127sd2.html) ("Sometimes when you capture a big, large group there will be someone who just happened to be in there that didn't belong in there.") (remarks of Respondent, Secretary of Defense Donald H. Rumsfeld); Carlotta Gall, Freed Afghan, 15, Recalls a Year at Guantánamo, N.Y. TIMES, Feb. 11, 2004, at A03 (quoting released teenager claiming to have been captured by non-U.S. forces and handed over to the Americans while looking for a job); Jan McGirk, Pakistani Writes of His U.S. Ordeal, BOSTON GLOBE, Nov. 17, 2002, at A30 (“Pakistan intelligence sources said Northern Alliance commanders could receive $5000 for each Taliban prisoner and $20,000 for a[n] [al] Qaeda fighter. As a result, bounty hunters rounded up any men who came near the battlegrounds and forced them to confess."). Application of the Geneva Conventions to the Afghan Conflict Generally common to all four Conventions provides that the Conventions "apply to all cases of declared war or of any other armed conflict" between two or more parties to the Conventions so long as a state of war is recognized by a party to the conflict. The Conventions also apply to all cases of partial or total occupation of the territory of a signatory, even if the occupation meets with no armed resistance. See Geneva Conventions, Art. 2. Signatories to the Conventions are bound by its terms regardless of whether an additional party to the conflict is a signatory. Id. The Administration's position is that the Geneva Conventions apply to the War in Afghanistan." 89 Geneva III Relevant Legal Standards Under Geneva III, combatants are entitled to POW status if they are members of the armed forces (other than medical personnel and chaplains). The specific requirements for combatant/POW status are set forth in Article 4 of Geneva III and Articles 43 and 44 of Additional Protocol I."1 89 See, e.g., Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 96 AM. J. INT'L L. 461, 476-77 (2002). 90 Article 4-A of Geneva III provides, in part: Prisoners of war, in the sense of the present Convention, are Members of the armed forces of a Party to the conflict as well as Members of other militias and members of other volunteer corps, If there is any doubt as to whether captured persons meet Article 4's criteria for POW status, such persons are entitled to interim POW status until a "competent tribunal" determines their 91 92 volunteer corps, including such organized resistance movements, (a) of being commanded by a person responsible for his (b) that of having a fixed distinctive sign recognizable at a (c) that of carrying arms openly; (d) that of conducting their operations in accordance with Members of regular armed forces who profess allegiance to a Article 43 of Additional Protocol I provides: "The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict." See Geneva III, Art. 5; see also, U.S. Dept. of Army, Field Manual 27-10, “Law of Land Warfare", Art. 71 (1956); U.S. Dept. of Army, REGULATION 190-8 Military Police, "Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees,” § 1-5 (a)(2) (1997). Under U.S. military regulations, a "competent tribunal" pursuant to Article 5 of Geneva III consists of three commissioned officers. The regulations also require that persons whose status is to be determined be advised of their rights; be permitted to attend all open sessions, call witnesses and question witnesses called by the tribunal; be permitted (but not compelled) to testify or otherwise address the tribunal; and be provided with an interpreter. The regulations provide for the tribunal's determination of a detainee's status in closed session by a majority vote and require a preponderance of the evidence to support the tribunal's finding. See Erin Chlopak, Dealing with the Detainees at Guantánamo Bay: Humanitarian and Human Rights Obligations Under the Geneva Conventions, HUM RTS. BR. (Spring 2002), at 6, 8. Geneva III mandates that POWs be treated humanely at all times. This includes freedom from physical and mental torture, acts of violence, intimidation and insult, and exposure to public humiliation." Pursuant to Article 14, POWs also "are entitled in all circumstances to respect for their persons and their honour.... [and] shall retain the full civil capacity which they enjoyed at the time of their capture." With respect to interrogation, in particular, Article 17 of Geneva III provides: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to 93 It should be noted that the "competent tribunal" outlined in ARMY REG. 190-8, § 1-6 is a quick, administrative process that is highly dependent upon the availability of witnesses during ongoing combat and support operations. Unsworn statements may be presented as evidence, and a record of the proceedings is developed. Although the tribunal may or may not include military lawyers such as members of the Staff Judge Advocate General (“JAG”), JAG lawyers will subsequently review the record. The record may also be the basis for any further proceedings for war crimes or for any other penalty. Fundamentally, the tribunal determines only status and does not adjudicate liability. Tribunals are required under Geneva III only when status of the detainee is in doubt. When, for example, ten thousand uniformed members of a regular enemy infantry division surrender as a body, there is no need for a tribunal. When, however, non-uniformed, but possibly military, personnel mix with refugees, that is a classic situation for such tribunals. Specifically, Article 13 of Geneva III provides: Prisoners of war must at all times be humanely treated. Any Likewise, prisoners of war must at all times be protected, |