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COLONMUN 2008COLONMUN 2008

Human Rights Council

TOPIC A: THE SITUATION IN GUANTANAMO BAYGuantanamo Bay detention camp

is a jointmilitary prisonand interrogation camp under theleadership of Joint Task Force Guantanamosince 2002. The prison, established atGuantanamo Bay Naval Base, holds people accused by theexecutive branchof theU.S. governmentof being al-QaedaandTalibanoperatives, as well as those no longer considered suspects who are being held pending relocation elsewhere. The detainment areas consist of three camps in the base:Camp Delta(which includesCamp Echo),Camp Iguana, and the now-closedCamp X-Ray. The facility is often referred to as

Guantanamo

, or

Gitmo

(derived from the abbreviation"GTMO").The detainees held by the United States were classified as "enemy combatants" - aterm often criticized for being used in place of "Prisoners of War" after President Bush signed amemorandum stating that no Taliban or al-Qaeda detainee will qualify as a prisoner of war andthat Article 3 common to the four Geneva Conventions will not apply to them either. CommonArticle 3 requires fair trial standards and prohibits torture, cruelty, and "outrages upon personaldignity, in particular humiliating and degrading treatment."Since theWar in Afghanistan (2001–present)775 detainees who have been brought toGuantanamo, approximately 420 have been released. As of August 09, 2007, approximately 355detainees remained atGuantánamo Bay, Cuba. More than a fifth have been cleared for releasebut may have to wait months or years for their freedom because U.S. officials are finding itincreasingly difficult to line up places to send them, according to Bush administration officialsand defense lawyers. Of the roughly 355 still incarcerated, U.S. officials said they intend toeventually put 60 to 80 on trial and free the rest.

Conditions

Red Cross inspectors and released detainees have alleged acts of torture, includingsleep deprivation, the use of so-calledtruth drugs, beatings and locking in confined and cold cells. Human rights groups argue that indefinite detention constitutes torture.The use of Guantánamo Bay as a military prison had started discussions fromhuman rights organizations and other critics, who cite reports that detainees have beentorturedor otherwisepoorly treated. Supporters of the detention argue that trial review of detentions has never beenafforded to prisoners of war, and that it is reasonable for enemy combatants to be detained untilthe cessation of hostilities. However, the detainees' status as potential or active terrorists, andthe lack of any ratified treaties regarding treatment of captured terrorists, makes the situationparticularly complicated.

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COLONMUN 2008COLONMUN 2008

Human Rights Council

A U.S. district court partially agreed with the Bush administration, finding that the GenevaConventions apply to Taliban fighters, but not to Al Qaeda terrorists.Amnesty Internationalhascalled the situation "a human rights scandal" in a series of reports.Its also said there exist different types of religious intolerance inside the camp within theprisioners.Amnesty International said the apparent suicides "are the tragic results of years of arbitrary andindefinite detention" and called the prison "an indictment" of the Bush administration's humanrights record. Saudi Arabia's state-sponsored Saudi Human Rights group blamed the U.S. for the deaths.Guantanamo officials have reported 41 unsuccessful suicide attempts by 25 detainees since theU.S. began taking prisoners to the base in January 2002. Defense lawyers contend the number of suicide attempts is higher. A U.N. panel saidMay 19that holding detainees indefinitely atGuantanamo violated the world's ban on torture and the United States should close thedetention center.As of August 2003, at least 29 inmates of Camp Delta had attemptedsuicide in protest. The U.S.officials would not say why they had not previously reported the incident. After this eventthe Pentagonreclassified suicides as "manipulative self-injurious behaviors" because it is alleged bycamp physicians that detainees do not genuinely wish to end their lives.Civilians who directly engage in hostilities, are considered

unlawful combatants

or

unprivileged combatants/belligerents

(the treaties of humanitarian law do not expresslycontain these terms). They may be prosecuted under the domestic law of the detaining state for such action. Once a combatant is found by a competent tribunal to be an unlawful combatant, heor she no longer has the rights and privileges accorded to a prisoner of war (POW), but heretains all the rights any other civilian would have under municipalandinternational lawin the same situation.Article 5 of the GCIII(Third Geneva Convention) states that the status of detainee may bedetermined by a "competent tribunal". Until such time, he is to be treated as a prisoner of war.After a "competent tribunal" has determined his status, the "Detaining Power" may choose toaccord the detained unlawful combatant the rights and privileges of the POW, as described inthe Third Geneva Convention, but is not required to do so. An unlawful combatant who is not anational of a neutral State, and who is not a national of a co-belligerent State, retains rights andprivileges under theFourth Geneva Conventionso that he must be "treated with humanity and,in case of trial, shall not be deprived of the rights of fair and regular trial".The phrase "unlawful combatant" does not appear in theThird Geneva Convention(GCIII).However,Article 4 of GCIIIdoes describe categories under which a person may be entitled toPOW status; and there are other international treaties which deny lawful combatant status for

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COLONMUN 2008COLONMUN 2008

Human Rights Council

mercenariesandchildren.In the United States, theMilitary Commissions Act of 2006codified the legal definition of this term. The assumption that such a category as unlawful combatantexists is not contradicted by the findings by theInternational Criminal Tribunal for the Former Yugoslaviain the Celebici Judgment. The judgment quoted the 1958ICRCcommentary on the Fourth Geneva Convention: Every person in enemy hands must be either a prisoner of war and,as such, be covered by the Third Convention; or a civilian covered by the Fourth Convention.Furthermore, "

There is no

intermediate status; nobody in enemy hands can be outside the law,"because in the opinion of the ICRC "If civilians directly engage in hostilities, they are considered'unlawful' or 'unprivileged' combatants or belligerents (the treaties of humanitarian law do notexpressly contain these terms). They may be prosecuted under the domestic law of thedetaining state for such action".Prisoners of war, in the sense of the present Convention, are persons belonging to one of thefollowing categories, who have fallen into the power of the enemy:(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.(2) Members of other militias and members of other volunteer corps, includingthose of organized resistance movements, belonging to a Party to the conflict andoperating in or outside their own territory, even if this territory is occupied, providedthat such militias or volunteer corps, including such organized resistancemovements, fulfil the following conditions: (a) that of being commanded by aperson responsible for his subordinates; (b) that of having a fixed distinctive signrecognizable at a distance; (c) that of carrying arms openly; (d) that of conductingtheir operations in accordance with the laws and customs of war.(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. [...][...](6) Inhabitants of a non-occupied territory, who on the approach of the enemyspontaneously take up arms to resist the invading forces, without having had timeto form themselves into regular armed units, provided they carry arms openly andrespect the laws and customs of war.Mercenariesdo not have the full protection of the Third Geneva Convention.The legal question on which the United States and many of its allies differ is the status of al-Qaedamembers captured in combat. Taliban members could be and were released from U.S.custody, but the U.S. does not recognize al-Qaeda members as falling under this convention.According to the Conventions, a competent tribunal must determine whether the Guantanamodetainees have prisoner-of-war status or not. The U.S. has not done so as of date.

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