Some people have said that the Supreme Court’s Guantanamo detainee decision might have been influenced by the Administration’s refusal to give the detainees the procedures to which they’re entitled by the Geneva Conventions. The Geneva Conventions are a treaty that we signed, the argument goes, the government is bound to give this procedure, so we should interpret our habeas corpus statute as mandating at least something like what we’ve promised to provide in any case.
I’m not sure whether the Justices might indeed have been influenced by what they may see as Administration overreaching here. But, as best I can tell, the Geneva Conventions do not require the U.S. to give hearings to detainees who claim that they’re actually civilians and should therefore be freed. (Recall that they’re “challenging the legality of their detention at the Base,” alleging that they have never “been . . . combatant[s] against the United States or ha[ve] ever engaged in any terrorist acts.”)
1. Let’s start with the Third Geneva Convention, which deals with prisoners of war. First, the Administration is quite right that al Qaeda irregulars don’t qualify for protection (see article 4).
Second, while there’s obviously debate about whether the detainees are al Qaeda irregulars, as opposed to members of the regular Afghan army or (as these petitioners say) not soldiers at all, I can find nothing in the Convention that gives them a legal right to a hearing on those questions. (Naturally it is to be expected that the U.S. government will seriously consider claims that they’re detaining people by mistake, and the U.S. government’s position is that it has considered these claims and rejected them — the question is whether these people have a legal right under the Conventions to a formal hearing on the matter.)
Article 5 does provide for “competent tribunal[s]” — which need not be civilian courts, but could just be relatively informal military tribunals — to determine certain matters about the detainees. But here’s what the Article actually says:
The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.
Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.
Article 4 in turn defines who is a prisoner of war, and thus entitled to the Convention’s protection, as opposed to an unlawful combatant, who is not entitled to its protection. The basic distinction is between regular and generally uniformed members of the armed forces, and irregular and non-uniformed fighters.
So the tribunal is not required. Rather, if a tribunal is absent, and there’s “doubt” about whether the people are regular soldiers (who are entitled to protection of the Convention) and irregular illegal combatants (who are not entitled to protection of the Convention), the government simply has an obligation to treat the people as prisoners of war (who after all are prisoners, and may certainly be detained for the duration of the conflict) and give them the Convention’s protections. The terms of article 5 are quite clear on that. And under those terms, the government has no treaty obligation to providing hearings as to whether the detainees were soldiers or civilians. (The U.S. has indeed used tribunals in the past to decide whether the detainees ought to be released as civilians, but not, as best I can tell, as a matter of treaty obligation.)
The Administration has been faulted for not convening such article 5 tribunals. The administration’s position is that there really is no “doubt” as to the status of these people, but let’s say that the administration is mistaken. Its only obligation under the Convention would then be to treat the people as POWs — to treat them humanely (as the Administration has said that it would), and not try them simply for having levied war against us (that’s where being a lawful combatant as opposed an unlawful one makes a difference).
Nothing that I could find in the Convention mandates Parties to convene tribunals to decide whether detainees are entitled to go free altogether, or to free detainees in the absence of such tribunals. That’s simply not something for which the Convention provides; and the distinction makes sense: Governments are understandably much more willing to sign a treaty that obligates them to err on the side of treating detainees humanely, and not punishing them beyond just detaining them (which is what the Third Convention mandates), rather than a treaty that obligates them to err on the side of releasing detainees who the government thinks (rightly or wrongly) are indeed enemy combatants.
And recall that the detainees’ challenge is not merely that they were being denied the benefits of POW status under the Convention; the remedy they seek is not an assurance of such benefits. Rather, it’s an assurance of a hearing on whether they are civilians and entitled to be released, a hearing that the Convention does not mandate.
2. What about the Fourth Geneva Convention, which deals with civilians?
Well, article 4 of that convention specifically exempts from its protection “Nationals of a neutral State who find themselves in the territory of a belligerent State . . . while the State of which they are nationals has normal displomatic representation in the State in whose hands they are.” The Rasul v. Bush petitioners are Australians and Kuwaitis, so they’re covered by this exemption — the Fourth Convention doesn’t apply.
The Fourth Convention would apply to Afghan nationals. But article 5 of that convention specifically says:
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.
The terms of these provisions leave a great deal of discretion to the detaining power — the question is whether the power “is satisfied” that the person is “definitely suspected of . . . activities hostile to the security” of the power, not whether the power is correct in so suspecting. Unlike with the Third Convention’s article 5, the Fourth Convention does not provide for tribunals to make this determination. So even as to the Afghan Guantanamo detainees, who were not plaintiffs in Rasul v. Bush, the Fourth Convention requires no procedure.
What I say above is somewhat tentative: I’m not an expert on the Conventions, and might be mistaken. If someone knows of specific provisions in the Conventions that contradict my view, I’d love to hear this, and may revise my judgment accordingly.
Also, it may be that the Court was indeed influenced by what it saw as the government’s failure to do what article 5 of the Third Convention required — even though such procedures go only to the conditions of confinement and possibility of future trial, not to the release from detention that the petitioners sought — and decided that the Administration needed reining in. And none of the above expresses an opinion on what the Administration should be doing, as a matter of justice, prudence, or even U.S. habeas or constitutional law, with the Guantanamo detainees. Finally, it may well be that some other countries or organization take a broader interpretation of the Conventions than the text of the Conventions authorizes.
But as best I can tell, it is not correct to say that the Administration is violating the text of the Geneva Conventions (and it is the text that the U.S. has ratified) by failing to give the detainees a hearing on whether they are indeed civilians who should be released. The text of the Conventions does not require any such hearings.
Comments are closed.