Human Rights First Urges United
States to Refrain from Transferring War Captives Outside Iraq
Geneva Conventions Prohibit Transfer and Set Trial Requirements
Human Rights First welcomes assurances by the
United States that it intends to comply with Article 5 of the Third
Geneva Convention by treating all belligerents captured in Iraq as
prisoners of war (POWs) unless and until a competent tribunal determines
that they are not entitled to POW status. We are concerned, however,
about reports indicating that the United States is considering transferring
to Guantanamo those deemed not entitled to POW status by the Article
5 tribunals. Such transfers would constitute a grave breach of the
Fourth Geneva Convention, which prohibits forcible transfers of such
persons to places outside occupied territory.
Persons protected by the Fourth Geneva Convention cannot be transferred
to Guantanamo or anywhere else outside Iraq, because the Convention
contains an absolute ban on forcible transfers:
Individual
or mass forcible transfers, as well as deportations of protected
persons from occupied territory to the territory of the Occupying
Power or to that of any other country, occupied or not, are prohibited,
regardless of motive. [Fourth Geneva Convention on the protection
of civilians, article 49.]
Protection under the Fourth Geneva Convention is afforded to persons
found not to be POWs but who fall into the hands of a party to the
conflict1. Iraqis
detained by American forces but who are found not to have POW status
would therefore be covered by the prohibition on transfer out of
the area. The authoritative commentary by the International Committee
of the Red Cross makes this clear:
Every person in enemy hands must have some status under
international law: he is either a prisoner of war and, as such,
covered by the Third Convention, a civilian covered by the Fourth
Convention, or again, a member of the medical personnel of the armed
forces who is covered by the First Convention. There is no intermediate
status; nobody in enemy hands can be outside the law. [ICRC Commentary,
Fourth Geneva Convention, p. 51 (1958)].
Non-POWs who are covered by the prohibition on transfer out of
the area would include the type of persons whom the U.S. has termed
“unlawful combatants” in the war in Afghanistan. The
Conventions deal specifically with members of resistance movements
or other irregular forces. Article 4 of the Third Geneva Convention
sets out the conditions for determining who is a POW2.
It is made absolutely clear that failure to meet the conditions
to be protected as a POW does not exclude members of irregular forces
from protection under the Geneva Conventions. To the contrary, the
ICRC Commentary to the Fourth Geneva Convention explains
that such people must be protected as civilians:
If members of a resistance movement who have fallen into
enemy hands do not fulfill [the conditions for POW status] they
must be considered to be protected persons within the meaning of
the present Convention [ICRC Commentary, Fourth Geneva
Convention, p.50 (1958)].
Non-Iraqi citizens found in occupied territory in Iraq are also
protected by the Fourth Geneva Convention, unless they are nationals
of one of the belligerents in the conflict, or of a state that is
not a party to the Geneva Conventions (see Fourth Geneva Convention,
article 4). The no-transfer rule would apply, for example, to nationals
of states such as Egypt, Saudi Arabia or Syria, which are not parties
to the conflict.
Human Rights First is also concerned by reports that the United
States may be considering convening military commissions, authorized
by the November 14 Military Order issued by President Bush, to try
Iraqis or others captured in Iraq for violations of the crimes set
out in the Pentagon's new draft rules for military commissions.
The rules of procedure and the draft rules on crimes and elements
do not ensure that trials conducted by these commissions would comply
with fair trial standards.
Iraqi prisoners entitled to POW status – who can be tried
for violations of the laws of war or crimes against humanity but
not for participating in the conflict - are entitled to fair trial
rights provided by the Third Geneva Convention in articles 99 through
108. Among other things, a POW "can be validly sentenced only
if the sentence has been pronounced by the same courts according
to the same procedure as in the case of members of the armed forces
of the Detaining Power." American soldiers suspected of having
committed war crimes would be tried before regular courts-martial
with substantial procedural protections. Likewise, POWs in U.S.
custody must be tried in regular courts-martial under standard procedures.
Iraqi prisoners not entitled to POW status who are suspected of
committing crimes must be tried in accordance with the due process
rights and other requirements set forth in articles 64 through 77
of the Fourth Geneva Convention and in article 75 of Additional
Protocol I. Such prisoners may not be removed from the occupied
territory, and military commission regulations issued by the Department
of Defense do not ensure the procedural rights guaranteed by these
provisions. Trials before such commissions, therefore, would violate
the Geneva Conventions.
Endnotes
1
Article 4 of the Fourth Geneva Convention provides that the Convention
protects persons “who, at a given moment and in any manner whatsoever,
find themselves in a case of a conflict or occupation, in the hands
of a Party to the conflict or Occupying Power of which they are not
nationals” and who are not othrwise covered by one of the first
three Conventions.
2
Under the Third Geneva Convention, combatants entitled to POW status
include: (1) members of the armed forces; (2) members of other militias
and volunteer groups, so long as they are commanded by a person responsible
for his subordinates, wear fixed distinctive signs, carry arms openly,
and conduct their operations in accordance with the laws and customs
of war; (3) participants in a levee en masse, that is “inhabitants
of a non-occupied territory who upon approach of the enemy spontaneously
take up arms to resist the invading forces, without having had time
to form themselves into regular armed units, provided they carry arms
openly and respect the laws and customs of war.” Third Geneva
Convention Art. 4.
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