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The Taliban and Al-Qaeda Fighters Were Not Lawful Combatants, and Hence They Are Not Entitled to Prisoner of War Status

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The Taliban and Al-Qaeda Fighters Were Not Lawful Combatants, and Hence They Are Not Entitled to Prisoner of War Status http://waikato.researchgateway.ac.nz/ Research Commons at the University of Waikato Copyright Statement: The digital copy of this thesis is protected by the Copyright Act 1994 (New Zealand). The thesis may be consulted by you, provided you comply with the provisions of the Act and the following conditions of use: Any use you make of these documents or images must be for research or private study purposes only, and you may not make them available to any other person. Authors control the copyright of their thesis. You will recognise the author’s right to be identified as the author of the thesis, and due acknowledgement will be made to the author where appropriate. You will obtain the author’s permission before publishing any material from the thesis. In Legal Limbo? The status and rights of detainees from the 2001 war in Afghanistan A thesis submitted in fulfilment of the requirements for the degree of Master of Laws at The University of Waikato by Megan Vant ————— The University of Waikato 2007 Abstract During the 2001 war in Afghanistan hundreds of people associated with the Taliban or al Qaeda were arrested by United States forces and transported to the Naval Base at Guantánamo Bay, Cuba. The legal status and treatment of these detainees has been an ongoing problem over the last five years. The majority have been given no recourse to justice and allegations of inhuman treatment and torture have been frequent. The first issue raised by the incarceration of these people is whether any of them may be entitled to Prisoner of War status. The evidence shows that, in general, the Taliban and al-Qaeda fighters were not lawful combatants, and hence they are not entitled to Prisoner of War status. While the rights of Prisoners of War are well documented and generally uncontested, the rights of people not entitled to Prisoner of War status are not so easily definable. Despite classification as unlawful or unprivileged combatants, the detainees are not in legal limbo – they are still entitled to the benefit of certain fundamental human rights. There are applicable protections under the Fourth Geneva Convention, Additional Protocol I, the International Covenant on Civil and Political Rights and the United Nations Convention Against Torture. The main rights upheld by these documents are the right to liberty and freedom from arbitrary detention; the right to a fair trial; and the right to life. Furthermore, there is a requirement of humane treatment and an absolute prohibition on torture. Reports from international humanitarian watchdogs such as the International Committee of the Red Cross, Amnesty International and Human Rights Watch suggest that the United States Government is not upholding the rights held by the detainees. It is essential that the United States Government recognises the fundamental rights owed to the detainees and ensures that they receive the requisite treatment and access to justice. Acknowledgements I would like to thank a number of people who have supported and encouraged me throughout this project: Professor Al Gillespie for his supervision and assistance despite his many commitments. My family whose ongoing love and support kept me centred and who were always there with open arms when I needed some TLC, a home-cooked meal or my Mum’s proof-reading skills. Phil for proof-reading and forcing me to defend my argument and Flip for dealing with those niggly little computer problems. Rachel and Sine for distracting me and keeping me on track by turns. The law library staff and the law school administration staff, particularly Bruce Clark and Barbara Wallace. And all the others, you know who you are, who listened and argued and strengthened my resolve when I needed reminding of the fundamental purpose of my research. Table of Contents Abstract i Acknowledgements ii Abbreviations iv Table of cases v Chapter One: Introduction 2 Chapter Two: Combatancy law 12 2.1 Civilians 13 2.2 Combatants 15 2.2.1 Lawful combatants 15 2.2.2 Unlawful combatants 46 2.3 Combatancy law concluded 51 Chapter Three: Combatancy status – the Taliban and al-Qaeda 52 3.1 A very brief history of Afghanistan 53 3.2 Application of combatancy requirements 62 3.2.1 The Taliban 63 3.2.2 al-Qaeda 72 3.3 Application of combatancy requirements summarised 75 Chapter Four: The rights of unlawful combatants 78 4.1 International humanitarian law 80 4.1.1 Martens Clause 81 4.1.2 Geneva Convention IV 82 4.1.3 Common article 3 89 4.1.4 Additional Protocol I – article 75 93 4.2 International human rights law 95 4.2.1 The ICCPR 97 4.2.2 The UNCAT 116 4.3 The rights of unlawful combatants summarised 140 Chapter Five: Conclusion 147 Abbreviations CAT Committee Against Torture ECHR European Convention of Human Rights HRC Human Rights Committee HRW Human Rights Watch ICCPR International Covenant on Civil and Political Rights ICJ International Court of Justice ICRC International Committee of the Red Cross MCP Malayan Communist Party POW Prisoner of War UDHR Universal Declaration of Human Rights UK United Kingdom UN United Nations UNCAT United Nations Convention Against Torture US United States of America WWI World War I WWII World War II Table of cases Abassi v Secretary of State for Foreign and Commonwealth Affairs (2002). Reproduced in (2003) 42 ILM 358. Anglo-Norwegian Fisheries case [1951] ICJ Reports, 116. Bailey v Jamaica (1993) UN Doc. CCPR/C/47/D/334/1988. Berry v Jamaica (1994) UN Doc. CCPR/C/50/D/330/1988. Boumediene v Bush and Al Odah v USA, US Court of Appeals for the District of Columbia Circuit (2007). Cariboni v Uruguay (1990) UN Doc. CCPR/C/OP/2/159/1983. Chahal v United Kingdom ECtHR 70/1995/576/662 (1996). Concluding observations of the Committee against Torture: Israel (1997) A/52/44. Dermit Barbato v Uruguay (1982) UN Doc. CCPR/C/17/D/84/1981. Drescher Caldas v Uruguay (1983) UN Doc. CCPR/C/13/D/43/1979. Edwards v Jamaica (1993) UN Doc. CCPR/C/60/D/529/1993. El-Megreisi v Libyan Arab Jamahiriya (1994) UN Doc. CCPR/C/50/D/440/1990. Fillastre Bizouarn v Bolivia (1991) UN Doc. CCPR/C/43/D/336/1988. Francis v Jamaica (1993) UN Doc. CCPR/C/47/D/320/1988. Gridin v Russian Federation (2000) UN Doc. CCPR/C/69/D/770/1997. Hamdan v Rumsfeld 548 U.S. (2006). Hamdi v Rumsfeld 542 U.S. 507 (2004). Hylton v Jamaica (1994) UN Doc. CCPR/C/51/D/407/1990. Ireland v The United Kingdom 5310/71 [1978] ECHR 1 (1978). Judgment of the International Military Tribunal at Nuremberg [1 October 1946]. Reproduced in (1947) 41 AJIL 172, 229. Karttunen v Finland (1992) UN Doc. CCPR/C/46/D/387/1989. Lantsova v Russian Federation (2002) UN Doc. CCPR/C/74/D/763/1997. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territories [2004] ICJ Reports. Legality of the GSS Interrogation Methods Supreme Court of Israel (6 September 1999). Reproduced in 38 International Legal Materials (1999) 1471. Legality of the Threat or Use of Nuclear Weapons [1996] 1 ICJ Reports 226. Linton v Jamaica (1992) UN Doc. CCPR/C/46/D/255/1987. Lotus case [1927] PCIJ, Series A, No. 10, 28. Marais v Madagascar (1983) UN Doc. A/38/40/49/1979. Mohammed Ali v Public Prosecutor [1969] 1 AC 430 (PC 1968). Mukong v Cameroon (1994) UN Doc. CCPR/C/51/D/458/1991. Nicaragua v United States [1986] 14 ICJ Reports 190. North Sea Continental Shelf Cases [1969] 3 ICJ Reports 22. Oló Bahamonde v Equatorial Guinea (1993) UN Doc. CCPR/C/49/D/468/1991. Osman and Others v Public Prosecutor [1969] 1 Law Reports, Appeal Cases, 453 (PC). Polay Campos v Peru (1998) UN Doc. CCPR/C/61/D/577/1994. Portorreal v Dominican Republic (1990) UN Doc. CCPR/C/OP/2/188/84. Prosecutor v Delalić ICTY [16 November 1998] (Case No. IT-96-21). Prosecutor v Furundžija ICTY [10 December 1998] (Case No. IT-95-17/1-T). Shaw v Jamaica (1998) UN Doc. CCPR/C/62/D/704/1996. Spakmo v Norway (1999) UN Doc. CCPR/C/67/D/631/1995. Rasul v Bush 542 U.S. 466 (2004). Sosa v Alvarez-Machain 124 S.Ct. 2739 (2004). Tapia Paez v Sweden (1997) UN Doc. CAT/C/18/D/39/1996. Vuolanne v Finland (1989) UN Doc. CCPR/C/35/D/265/1987. Young v Jamaica (1997) UN Doc. CCPR/C/62/D/615/1995. Youngstown Sheet & Tube Co. v Sawyer 343 U.S. 579 (1952). In Legal Limbo? The status and rights of detainees from the 2001 war in Afghanistan A thesis submitted in fulfilment of the requirements for the degree of Master of Laws at The University of Waikato by Megan Vant ————— The University of Waikato 2007 i Abstract During the 2001 war in Afghanistan hundreds of people associated with the Taliban or al Qaeda were arrested by United States forces and transported to the Naval Base at Guantánamo Bay, Cuba. The legal status and treatment of these detainees has been an ongoing problem over the last five years. The majority have been given no recourse to justice and allegations of inhuman treatment and torture have been frequent. The first issue raised by the incarceration of these people is whether any of them may be entitled to Prisoner of War status. The evidence shows that, in general, the Taliban and al-Qaeda fighters were not lawful combatants, and hence they are not entitled to Prisoner of War status.
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