The Lawfare blog has reported on the oral argument in the Al Warafi case in the DC Circuit. Reduced to the bare essence, Al Warafi is a detainee at Guantanamo appealing a negative habeas decision. A core issue is whether he was a medic “exclusively engaged” in medical activities with the Taliban and for that reason putatively immune from being detained under certain provisions of the Geneva Conventions, particularly Articles 24 and 28 of the First Geneva Convention, and which party – detainee or the government – bears the burden of proof on the issue.
Note that in the case of the Afghanistan Taliban, in the time period, the assumption was that although Al Qaeda was a non-state actor, the Taliban forces were forces of a state and hence covered by the full range of the Geneva Conventions applicable to state actors. Ben Wittes has an excellent summary of the oral argument at Lawfare.
There are other issues here – one being how, given the provisions of the MCA that deny the Geneva Conventions as a source of rights in a US court in these proceedings – but let me pass over them. I want to make a suggestion here for how to deal with Al Warafi’s claim about being a medic – not because I’m serious, but instead because I want to illustrate how unsuited the Geneva Conventions are for these kind of detention issues in the counterterrorism cases.
Assume arguendo that Al Warafi is indeed a medic under the Geneva Conventions. The text of Geneva I, Art 24 provides:
Medical personnel exclusively engaged in the search for, or the collection, transport or treatment of the wounded or sick, or in the prevention of disease, staff exclusively engaged in the administration of medical units and establishments, as well as chaplains attached to the armed forces, shall be respected and protected in all circumstances.
Art 28 goes on to define the concept of such workers (and also including chaplains and similar categories) as “retained personnel,” even though not formally POWs:
Personnel designated in Articles 24 and 26 who fall into the hands of the adverse Party, shall be retained only in so far as the state of health, the spiritual needs and the number of prisoners of war require.
Personnel thus retained shall not be deemed prisoners of war. Nevertheless they shall at least benefit by all the provisions of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949. Within the framework of the military laws and regulations of the Detaining Power, and under the authority of its competent service, they shall continue to carry out, in accordance with their professional ethics, their medical and spiritual duties on behalf of prisoners of war, preferably those of the armed forces to which they themselves belong.
In principle, then, the US could categorize Al Warafi as a medic under the category of “retained personnel,” and assign him to medical duties with regard to other Taliban detainees at Guantanamo, retained so long as there are detainees to whom to minister. No doubt there is a way to cause that the “state of health” of those Taliban detainee shall require that Al Warafi be retained as a medic. As the Geneva Convention Third suggests at Art. 33:
Members of the medical personnel and chaplains while retained by the Detaining Power with a view to assisting prisoners of war, shall not be considered as prisoners of war. They shall, however, receive as a minimum the benefits and protection of the present Convention, and shall also be granted all facilities necessary to provide for the medical care of, and religious ministration to prisoners of war.
They shall continue to exercise their medical and spiritual functions for the benefit of prisoners of war, preferably those belonging to the armed forces upon which they depend, within the scope of the military laws and regulations of the Detaining Power and under the control of its competent services, in accordance with their professional etiquette.
This would be idiotic, of course, understood on any realistic basis – but within the literal reading of the Conventions. But that’s only because this simply wasn’t the kind of situation anticipated and so this proposal is silly. The problem is, if this is silly, then so is Al Warafi’s attempting to contest his detention on grounds that he is medical personnel under the Conventions, and then arguing over exclusive versus part time medic. If he wants to argue the status, then it is in-grounds to note that even if so, it does not follow that he could not be detained. He could be designated as retained personnel, handed a stethoscope, and told to carry out his medical duties “within the scope of the military law and regulations of the Detaining Power and under the control of its competent services.” Argue the premise, argue the conclusion.
Again, to be completely clear, I’m being facetious. Please don’t bombard me with endless earnest arguments about why this reading is wrong or terrible or pernicious. I’m being facetious. But facetious with a point. Thinking these situations can be resolved by some literal application of the Geneva Conventions does not really work.
(Finally, I”m not cross-posting this to Opinio Juris as I don’t want to interrupt the flow of the current Harvard International Law Journal presentation.)
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