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The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan

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The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan Summer 2005] Applicability of Geneva Conventions 1 New Rules for a New War: The Applicability of the Geneva Conventions to Al-Qaeda and Taliban Detainees Captured in Afghanistan Brett Shumate* In the wake of the U.S. Supreme Court’s decisions in June 2004 regarding the status of the Guantánamo Bay detainees,1 the legal status of those detainees under international law contin- ues to remain at the forefront of political and legal debate. In deciding Hamdi v. Rumsfeld, the Supreme Court specifically declined to determine whether the detainees were entitled to the protections of the Geneva Conventions.2 Even though the Administration has begun conduct- ing trials of these terrorists through military commissions in attempted compliance with the Supreme Court’s pronouncements,3 a federal district court recently held that the captured ter- rorists are entitled to the protections of the Geneva Conventions,4 again thrusting this issue to the forefront in policy-making and legal circles. The focus of the debate is whether the Geneva 1. See Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004) (holding that a detainee was entitled to notice based on his classification as an enemy combatant and a fair opportunity to be heard); see also Padilla v. Rumsfeld, 124 S. Ct. 2711, 2727 (2004) (concluding that habeas corpus jurisdiction was limited to the district in which the detainee was confined); Rasul v. Bush, 124 S. Ct. 2686, 2692 (2004) (explaining that 28 U.S.C.S. § 2241 con- fers jurisdiction on the district court to hear the habeas corpus challenges). 2. See Hamdi, 124 S. Ct. at 2659 (“Whether, or to what degree, the Government is in fact violating the Geneva Convention and is thus acting outside the customary usages of war are not matters I can resolve at this point.”). See generally David D. Caron & Jenny S. Martinez, Availability of U.S. Courts to Review Decisions to Hold U.S. Citizens as Enemy Combatants, 98 AM. J. INT’L L. 782, 785 (2004) (noting that the Supreme Court chose not to discuss international law and treaties that are generally applied to these cases). See generally Bruce Zagaris, U.S. Court of Appeals for the 9th Circuit Holds Guantánamo Detainees Have Rights, 20 INT’L ENFORCEMENT L. REP. 2 (2004) (stressing the Court’s decision not to resolve the specific international law issues). 3. See Neil A. Lewis, Judge Halts War-Crime Trial at Guantánamo, N.Y. TIMES, Nov. 9, 2004, at A1 (stating that President Bush improperly brushed aside the Geneva Conventions by establishing military commissions to try detainees in Guantánamo). See generally Caron & Martinez, supra note 2, at 788 n.67 (indicating that the Novem- ber 2001 Military Order provided for trials before military commissions); Bradford A. Berenson, Military Com- missions for Terrorists on Solid Constitutional Grounds, LEGAL BACKGROUNDER, Sept. 17, 2004, at 3 (noting that President Bush issued the Military Order that sets up military commissions to try suspected terrorists). 4. See Hamdan v. Rumsfeld, 344 F. Supp. 2d 152, 165 (2004) (concluding that Hamdan was entitled to the pro- tections of the Geneva Convention until a “competent tribunal” concludes otherwise). See generally In re Guantánamo Bay Cases, No. 02-CV-0299, 2005 U.S. Dist. LEXIS 1236, at *110–11 (U.S. D. Ct. Jan. 31, 2005) (declaring that Taliban fighters are entitled to the protections of the Geneva Conventions); Caron & Mar- tinez, supra note 2, at 793 (discussing the decision in Rasul, which held that enemy combatants have rights under the Geneva Convention). * Candidate for J.D., Wake Forest University School of Law, 2006; B.A., Furman University, 2003. The author would like to thank his wife, Merritt, for her patience and understanding during the drafting of this article. Many thanks to Professor George K. Walker for his guidance and direction. I give my appreciation to the edi- tors at the New York International Law Review for their fine efforts. Comments and suggestions are welcome at [email protected]. 2 New York International Law Review [Vol. 18 No. 2 Conventions apply to those terrorists detained in Afghanistan or, as the Bush administration asserts, whether new rules are required to fight the war against terrorism.5 The attacks on the United States on September 11, 2001, certainly signaled a new type of war.6 The new enemy is one with widespread support in the Arab and Muslim world that uses terror to achieve its ends.7 Its goals are unlike the traditional geopolitical goals with which mil- itary strategists are well versed.8 Instead, the goal is the worldwide eradication of religious and political pluralism.9 The enemy’s tactics take no account of collateral damage and make no dis- tinction between military and civilian targets.10 In short, its hostility toward “us and our values” is 5. See The Committee on International Human Rights and The Committee on Military Affairs and Justice, Human Rights Standards Applicable to the United States’ Interrogation of Detainees, 59 REC. 183, 215–16 (2004) (identify- ing the Administration’s formal position as to the inapplicability of the Convention to Al-Qaeda detainees). See generally James P. Taylor, The Constitution Approaches Guantánamo: A Legal Guide to the U.S. Detainees Cases, 29 MONT. L. REV 8, 8 (2004) (explaining that the Convention should not apply because the drafters of the Con- vention could not have envisioned a war such as the present one). 6. See NAT’L COMM’NON TERRORIST ATTACKS UPON THE UNITED STATES, THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE UNITED STATES 46 (1st ed. 2004) [hereinafter 9/11 COMMISSION REPORT]. “This is a new type of war” was a statement uttered by a military “assistant” in Rome, New York on the day of the attacks. However, President Bush was reported to have said to the National Security Council on September 12, 2001, that the “United States was at war with a new and different kind of enemy.” Id. at 330. Moreover, in a video teleconference with his principal advisers, including National Security Advisor Condoleezza Rice and Director of Central Intelligence George Tenet, the President began the meeting on the day of the attacks by stating, “We’re at war.” Id. at 326; see also George K. Walker, The Lawfulness of Operation Enduring Freedom’s Self-Defense Responses, 37 VAL. U. L. REV. 489 (2003) (discussing the events of 9/11 and the international reaction to the attacks). 7. See 9/11 COMMISSION REPORT, supra note 6, at xvi (asserting that the enemy gathers support in the Arab and Muslim countries by demanding a remedy to political grievances). See generally Kevin J. Fandl, Terrorism, Devel- opment & Trade: Winning the War on Terror Without the War,19 AM. U. INT’L. REV. 587, 592 (2004) (identi- fying why the majority of recent terrorist attacks have their roots in the Middle East); Paul S. Dempsey, Aviation Security: The Role of Law in the War Against Terrorism, 41 COLUM. J. TRANSNAT’L. L. 649, 689 n.220 (2003) (noting that several Arab countries have provided protection to perpetrators of terrorist acts against civil aviation). 8. See Joseph P. Bialke, Al-Qaeda & Taliban Unlawful Combatant Detainees, Unlawful Belligerency, and the Interna- tional Laws of Armed Conflict, 55 A.F. L. REV. 1, 38 (2004) (explaining that the ideology of Al-Qaeda is contrary to the principles of Islam). See generally Charles I. Lugosi, Rule of Law or Rule by Law, 30 AM. J. CRIM. L. 225, 225 (2003) (highlighting the difficulty of developing military strategy due to the nature of this war); Christopher M. Schumann, Note, Bring it On: The Supreme Court Opens the Floodgates with Rasul v. Bush, 55 A.F. L. REV. 349, 368–69 (2004) (emphasizing importance of obtaining information from captured “enemy” particularly because of extreme ideology). 9. See 9/11 COMMISSION REPORT, supra note 6, at xvi (reporting how terrorist groups have rallied support in the Arab world). See generally Bialke, supra note 8, at 38 (declaring that Al-Qaeda does not pursue legitimate inter- ests and only seeks to cause chaos); Ravi Mahalingam, Women’s Rights and the “War on Terror”: Why the United States Should View the Ratification of CEDAW as an Important Step in the Conflict with Militant Islamic Funda- mentalism, 34 CAL. W. INT’L. L.J. 171, 177 (2004) (identifying some principles of militant Islamic fundamen- talist groups such as total rejection of Western social, economic and political values). 10. See 9/11 COMMISSION REPORT, supra note 6, at xvi (asserting that the enemy gathers support in the Arab and Muslim countries by demanding a remedy to political grievances). See generally Ruth Wedgwood, Agora: Mili- tary Commissions; Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT’L L. 328, 330 (2002) (arguing that Al-Qaeda’s campaign throughout the 1990s against American targets amounted to a war). For further dis- cussion of Al-Qaeda’s efforts against American targets in the early 1990s, see also 9/11 COMMISSION REPORT, supra note 6, at 69–70. See generally Shibley Telhami, Conflicting Views of Terrorism, 35 CORNELL INT’L. L.J. 581, 585 (2002) (discussing the alternatives available to the United States to increase protection from the deliberate targeting of civilians by terrorists). Summer 2005] Applicability of the Geneva Conventions 3 limitless.11 This new enemy, not contemplated by the drafters of the Geneva Conventions, would certainly seem to suggest the need for new rules. Whether this new type of war justifies the actions of the United States in Afghanistan is the subject of robust debate.12 The Bush administration argues that this new type of war and this new enemy require new rules.13 Others seriously criticize this argument and assert that the policies of the Bush administration are dangerous and unnecessary.14 This article discusses the seemingly new rules embraced by the Bush administration to fight a new enemy and whether the actions of the United States comply with the Geneva Conven- tions.
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