Article 13: The Humane Treatment Of Prisoners Of War

Guantanamo Bay in Cuba houses some of the most dangerous people. The people being held have ranged in committing various crimes. What makes Guantanamo Bay well known is how the time period a detainee has spent in prison without a trial. While in prison for an extensive period of time, a detainee is bound to receive discipline for not following the guards. There are often a variety of different methods that the guards use to teach discipline to the detainees. All who follow Guantanamo Bay as institution often criticizes the measures taken. What makes Guantanamo Bay an ironic place to start this journey is because Guantanamo Bay is at the center of attention to a very important, controversial law passed in 2006. The controversial law was

Allegedly, the outsourcing of terror suspects to countries such as Jordan, Egypt, Morocco and Syria, countries that engage in torture, also occurred. In addition, the International Committee of the Red Cross reported on methods of physical and psychological coercion used to extract information from prisoners in Iraq. These methods include beatings with hard objects, slapping, punching, kicking, prolonged exposure to the sun, and parading detainees naked, sometimes with women’s underwear on their heads. In some cases, threats were issued against the detainees’ families (Ramsey 105). Acts such as these are what determined the necessity of the 1984 convention prohibiting torture, and yet the abuse continues.

An enemy combatant is individuals arrested in the United States as terrorism suspects and held for an unspecified amount of time incommunicado without charges, trial or even access to counsel. Enemy combatants are also rendered bureaucratic rights by the courts (Article 5 of the Third Geneva Convention). Their due process and the right to a fair trial has been regulated to a place where laws of war and constitution are upheld. Lack of a trial by jury deprives a defendant of the rights to face a jury of their peers, cross-examine the evidence that is held against them, and assistance of counsel as expressed in the Sixth Amendment.

Throughout the last 15 years of operation, Guantanamo Bay has faced endless criticism from both international countries and the US. The biggest issue is the legal “black hole” that exists at Guantanamo Bay and the concern over interrogation techniques and torture. We are able to torture prisoners because of how George W Bush described the war. “Bush thought it was a new kind of war and that this meant the Americans didn’t need adhere the rules of the Geneva Convention,” explains Professor Honigsberg from the University of San Francisco. The convention says prisoners of war must be treated humanely during a war. “But Bush didn’t call them ‘prisoners of war’ but ‘enemy combatants’. This was how a

Prisoners of War are individuals, whether a soldier or civilians, who are captured as a prisoner during an armed conflict. In the middle ages the modern law was the source relating to the treatment of Prisoners of War. However, today the modern foundation of international law relating to the Treatment of Prisoners is the 1949 Geneva Convention.

Secondly, Pfiffner (2005) contends that the traditional boundaries set on treatment of prisoners were relaxed by governmental memorandums and policy changes developed by the Bush administration. The first memorandum came from Assistant Attorney General Jay S. Bybee in early January 2002. Here Bybee wrote that Al Qaeda members were not protected by the Geneva Convention because they were “Non-State Actors” (Pfiffner, 2005 p. 318). The second influential memo came from Counsel to the President Alberto Gonzales on January 25, 2002. This memo reiterated the reasoning behind Bybee’s memo and stated that war on terrorism was “a new kind of war” therefore this “new paradigm renders obsolete Geneva’s strict limitations on questioning of enemy prisoners.

According to Borelli, prisoners’ legal rights are being violated today more than ever, especially when prisoners are “detained abroad” (3). Many states justify their actions based on the “legal black hole” philosophy, which claims that prisoners have no international legal rights in war. However, Borelli affirms that the rights promised by IHL and IHRL are still applicable to the detainees, citing several international committees as evidence.

While the entire world looked on at the American Civil war, both military and civilian institutions started to realize the importance of a code of ethical treatment for soldiers on the battlefield. In 1864, the Red Cross in association with the international community created the Convention for the Amelioration of the Wounded in Time of War (Shaw, 2013). This document laid out ethical guidelines for the treatment of combatants and became the basis for the Geneva Conventions as we know them today. During the tumultuous events of World War I, the ethical limits of warfare were pushed and expanded in a variety of ways. Shortly thereafter, the third Geneva convention met in 1929 and produced a range of wide sweeping reforms, most notably expanding the rights of prisoners of war (Shaw, 2013).

By 1949, prisoners’ rights became a critical issue in the Geneva Conventions. In particular, the Geneva Convention Relative to the Treatment of Prisoners of War defined how prisoners of war should be treated in the same manner as civil prisoners, while outlining the human rights for all prisoners (The United Nations, 1949). Solitary confinement was viewed as legal, but used sparingly. It would take several decades and numerous studies on the effects of solitary confinement for global

Looking further into this document, we will look at how member states who have signed this treaty are obliged to treat prisoners of war. How this treaty is enforced and the effectiveness of the enforcement as well as how this treaty has been upheld and looked at over the decades that it has been in effect will be analyzed. Failings by some countries in upholding the principles of this treaty will be discussed as well.

Due process and rights to a speedy and public trial are granted to people, not only citizens, but the current policy abandons these fundamental facts. Since “Operation Enduring Freedom” began in 2001, prisoners of war have been detained at a military base in Guantanamo Bay, Cuba. Hundreds of the prisoners, called “enemy combatants”, have been held without charges being present or a reasonable timetable for trial. At the time of introduction to the Guantanamo Bay Camp, prisoners are not presented with any potentially committed crimes and have been held years without being able to speak to a lawyer or family. Some of these families don’t even know where their relatives are. When and if these prisoners go to tribunal, judges have been forced a gag order to not speak of a guilty or not-guilty finding, let alone the existence of the trial itself. This stance on secret tribunals, where no jury can be found, creates a government that can only be portrayed by 1984 (Orwell).

Amidst a society in which political viewpoints, freedom of speech and one’s opinion on the needs of the people coincide with reality, it is relevant to state that our nation founded upon a Bill of Rights, a Constitution, treaties with other nations and established laws does not grasp the image of war. Americans currently face a religious war in which individuals from foreign countries are embarking on our freedoms that those who serve in our military have protected to keep however, bringing war to our home front is not an easy task to not take precautionary measures to a higher level. Since January 11, 2002, detainees from Iraq, Pakistan, Afghanistan and other disclosed locations have been transported to Camp X-Ray in Guantanamo Bay, Cuba for interrogation in their involvement with plotted terrorist attacks since September 11, 2001. As the media portrays an image of cruel and unusual punishment given to detainees the success rate of interrogations at Guantanamo Bay have given the CIA, military intelligence teams and government official’s crucial pieces to an unsolved puzzle.

“The U.S. Department of States Legal Analysis of the Hague Convention (51 Fed. Reg. 10494 (1986)) prepared for the Senate Committee on Foreign Relations to which the Convention was referred, confirms the intention that Article 13 was intended to be afforded a narrow interpretation. In this regard the State Department stated that the drafters were aware that any exceptions had to be drawn very narrowly lest their application undermine the express purposes of the Convention to effect the prompt return of abducted children; that it was generally believed that courts would understand and fulfill the objectives of the Convention by narrowly interpreting the exceptions that Article 13(b) was not intended to be used by defendants as a vehicle to litigate (or relitigate) the

The Geneva Convention allows the detainees classification as prisoners of war and according to the actual articles of the convention, the prisoners should be able to send letters and cards home to their families (Article 71) as well as receive lawyers (Article 77) to provide them with legal advice during their interrogation and the U.S.’s gathering of evidence against them (Geneva Convention Relative). As earlier discussed, the detainees do not have these rights and have not been classified as prisoners of war.

This differing practice on the part of different nations did a lot of harm to the common cause of protecting the life and well being of human beings. A major divergence from Geneva Convention rules has been seen post 9/11. The 9/11 incidents and subsequent “war on terror” gave rise to a completely new form of armed conflict which resulted in new legal challenges. As this war on terror is a non-traditional war which was almost unfamiliar by the times when Geneva Conventions were framed so, most of the rules of Geneva Conventions were focused on international armed conflicts. Traditionally, we witnessed armed conflicts in which states stood against other states but in recent decades, especially after the dawn of 21st century, these armed conflicts have become