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Between the Geneva Conventions: Where Does the UnlawfulCombatant Belong?

Published online by Cambridge University Press:  04 July 2014

Shlomy Zachary
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Abstract

The growing impact of terrorist acts in the past few years has lead todramatic changes in the internal laws of the growing number of States thatsuffer from terrorism, but has also lead to various attempts to adaptinternational law - more specifically, the International Laws of War - tothe new situation or threat, as many perceive it. The Laws of War, like mostareas of Public International Law, deal with the relations between nations,while hardly dealing with non-governmental entities like terroristorganisations or the individual terrorist, thereby creating an apparentlegal “loophole”. One of the solutions found by States in order to deal,legally, with terrorists, was by defining them “unlawful combatants”.

This essay tries to examine the development of the term “unlawfulcombatant”, by examining some complications that might occur from the use ofthe term “unlawful combatant” as an intermediate, new status ininternational law. By using it as a new status. States try to excludeterrorists from finding protection under the Geneva Conventions, which areintended to safeguard various individuals during armed conflicts. Afterexamining the term “unlawful combatant”, both from an historical and legalaspect, this essay will attempt to show that the existing Laws of War, whichacknowledge only two statuses – the ‘civilian’ and the ‘combatant’ – providea satisfactory solution to the problem of terrorism in its non-governmentalsense. After exploring recent policies and legal developments in Israel andthe Unites States, countries that use the term “unlawful combatant”, thisessay will criticise the ambiguity of these definitions, and point outfuture problems that might arise from this ambiguity during armedconflicts.

Type
Research Article
Information
Israel Law Review , Volume 38 , Issue 1-2: Special Double Issue: Domestic and International Judicial Review of the Construction of the Separation Barrier , Spring Winter 2005 , pp. 378 - 417
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2004

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Footnotes

*

Recipient of the first place award in the yearly Judge Mack competition.

References

1 Convention Relative to the Treatment of Prisoners of War of 12 August 1949, 1 Isr. Treaties 453; 75 UNTS 85-133 (hereinafter: “the Third Geneva Convention” or “the Third Convention”).

2 Dinstein, Yoram, The Laws of War (Tel-Aviv: Shoken, 1983) 95 Google Scholar [in Hebrew].

3 A POW is bound to give the following details only: full name, rank, date of birth and military number (art. 17 of the Third Convention, supra n. 1.)

4 Dinstein, supra n. 2, at 124.

5 Moore, Catherine, “The United States, International Humanitarian Law and the Prisoners at Guantanamo Bay” (2003) 7(2) Int'l. J. Hum. Rts. 1, at 10 Google Scholar.

6 Naqvi, Yasmin, “Doubtful Prisoners of War Status” (2002) 847 Int'l Rev. Red Cross 571, at 574 Google Scholar.

7 Dörmann, Knut, “The Legal Situation of ‘Unlawful/Unprivileged Combatants’” (2003) 849 Int'l Rev. Red Cross 45, at 70 Google Scholar.

8 Naqvi, supra n. 6, at 594.

9 Moore, supra n. 5, at 3.

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 (hereinafter: “the First Protocol” or “the Protocol”) 1125 U.N.T.S. 3-434.

11 Ibid., Article 1(4).

12 It should be noted, that Article 43(1) of the Protocol requires the group to which the combatant belongs to observe the laws of war in order to qualify as an armed force. It should be stressed that this requirement is imposed on the group, and is not focused on the individual combatant.

13 Dinstein, supra n. 2, at 111.

14 Rubin, Alfred P., “Terrorism and the Laws of War” (1983) 12 Denver J. Int'l L. & Policy 219 at 229 Google Scholar.

15 Article 96 (3)(c) of the Protocol, supra n. 10. However, the criticism is mainly on the ground that such provisions are not written explicitly in the relevant articles, like in art. 44(3).

16 Bar-Ya'akov, Nissim, “Some Aspects of POW Status According to the Geneva Protocol #1 of 1977” (1985) 20 Is.L.R. 243, at 279 Google Scholar.

17 Dinstein, Yoram, “Unlawful Combatancy” (2002) 32 Isr. YB. Hum. Rts. 247, at 265 Google Scholar.

18 The committee drafting the Protocol in 1977 was under massive political influence of socialist and third-world countries. The outcome was, therefore, that countries involved in conflicts refrained from signing it. The U.S. government has referred to it as “a law in the service of terrorism”. See Bar-Ya'akov, supra n. 16, at 250-277.

19 Steyn, Johan, “Guantanamo Bay: The Legal Black Hole” (2004) 53 Int'l & Comp. L.Q., 1 at 5 CrossRefGoogle Scholar; Aldrich, George H., “The Taliban, Al-Qaeda, and the Determination of Illegal Combatants” (2002) 96 Am. J. Int'l L. 891, at 898 CrossRefGoogle Scholar.

20 Geneva Convention Relative to the Protection of Civilian Persons in Time of War of 12 August 1949, 1 Isr. Treaties 373; 75 U.N.T.S. 287-417. (hereinafter: “the Fourth Geneva Convention”).

21 Rosas, Allan, The Legal Status of Prisoners of War: A Study in International Humanitarian Law Applicable in Armed Conflicts (Helsinki, Suorna Lainen Tiedeakatemia, 1976) 411 Google Scholar.

22 Article 5 of the Fourth Convention, supra n. 20.

23 The Geneva Conventions of 12 August 1949: Pictet, Jean, ed., Commentary on the IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva, International Committee of the Red Cross, 1958) 230 Google Scholar.

24 Dormann, supra n. 7, at 50.

25 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, of August 12, 1949, 1 Isr. Treaties 387; 75 U.N.T.S. 31-83 (the First Convention); Geneva Convention for the Amelioration of the Condition of the Wounded and Sick and Shipwrecked Members of Armed Forces at the Sea, of August 12, 1949, 1 Isr. Treaties 423, 75 U.N.T.S. 85-133 (the Second Convention).

26 Antonio Cassese, “Expert Opinion on Whether Israel's Targeted Killings of Palestinian Terrorists is Consonant with International Humanitarian Law” (Annex to the Petition in H.C.J. 769/02 The Public Committee Against Torture et al. v. The Government of Israel et al. (not yet published).

27 Rosas, supra n. 21, at 412.

28 H.C.J. 593/82 Tzemel et al. v. Minister of Defense 37(3) P.D. 365, 369.

29 According to Rosas, Article 65 of the First Protocol additional stipulates that the Fourth Convention is of a residual nature, i.e., he who does not comply to the conditions specified in Articles 42-44 of the Protocol, will be granted, as a minimum, the status and rights of a ‘protected person’ according to the Fourth Convention. See Rosas, supra n. 21, at 413-415.

30 Prosecutor v. Delalic et al. (Celebici Case) (Case No. IT-96-21-T, ICTY, 1998), paragraph 271.

31 Pictet, supra n. 23, at 230.

32 Detter, Ingrid, The Law of War (Cambridge, Cambridge University Press, 2000) 148 Google Scholar.

33 Baxter, Richard R., “So Called ‘Unprivileged Belligerency’: Spies, Guerrillas and Saboteurs” (1951) Br. YB. Int'l L. 323, 333–335 Google Scholar.

34 Bar-Ya'akov, supra n. 16, at 249.

35 Cassese, supra n. 26, at 5.

36 Detter, supra n. 32, at 148-149.

37 Ex parte Quirin, 317 U.S. 1, 30-31 (1942).

38 Dinstein, supra n. 2, at 96-97.

39 Interestingly, German officers who executed partisans for being disguised in civilian clothing during World War II were eventually prosecuted in Nuremberg for committing war crimes.

40 Ali v. Public Prosecutor, [1968] 3 All E.R. 480.

41 Ibid, at 496. According to this ruling, it appears that a combatant is loosing his POW status whenever he acts in contrast to the laws of war.

42 In the late 1940's, while the conventions were being drafted, influential elements in the international community preferred continuing their struggle against dissident movements (be it in the communist bloc or in colonial regimes), without granting the dissidents protection and status in international law.

43 Baxter, supra n. 33, at 323.

44 Bar-Ya'akov, supra n. 16, at 252.

45 Rosas, supra n. 21, at 414.

46 Ibid.

47 Dinstein, supra n. 17, at 266.

48 S.H. 192 (hereinafter: “the Law” or “the new Law”). For further discussion see Part III.

49 For further discussion of that case, see Part III.

50 Hoffman, M. H., “Quelling Unlawful Belligerency: The Judicial Status and Treatment of Terrorists under the Laws of War” (2002) 31 Isr. YB. Hum. Rts. 161, 162 Google Scholar.

51 Dinstein, Yoram, War, Aggression and Self-Defense (Cambridge, Cambridge University Press, 3rd ed., 2001) 217–219 CrossRefGoogle Scholar.

52 Hoffman, supra n. 50, at 168.

53 Ibid, at 165-167.

54 Ibid, at 179.

55 Rubin, supra n. 14, at 220.

56 Ibid, at 224. Rubin brings the Britain-I.R.A. conflict as an example where I.R.A. prisoners were granted a status analogous to POW, and full rights and privileges according to the Geneva conventions. The Americans also treated the Viet-Cong prisoners in a similar way, despite the fact that U.S.A. regarded them as terrorists and guerrilla fighters, and that is due to doubts regarding their exact legal status.

57 Klabbers, Jan, “Rebel with a Cause? Terrorists and Humanitarian Law” (2003) 14 Eur. J. Int'l L. 299, 301 CrossRefGoogle Scholar.

58 Ibid, at 306.

59 See n. 50 and the additional text.

60 Gross, Emanuel, “Human Rights, Terrorism and the Problem of Administrative Detention in Israel: Does a Democracy Have the Right to Hold Terrorists as Bargaining Chips?” (2001) 18 Ariz. J. Int'l &Comp. L. 721, 724 Google Scholar.

61 According to Dinstein, unlawful combatants should not be executed without substantive due process, unlike what happened in the Quirin case, where the principle offense was being unlawful combatant per se – an offence that does not justify execution (Dinstein, supra n. 2, at 96).

62 Dinstein, supra n. 2, at 124.

63 Article 118 of the Third Convention, supra n. 1.

64 Hoffman, supra n. 50, at 180; Rubin, supra n. 14, at 234.

65 Gross, supra n. 60, at 725.

66 McDonald, Neil and Sullivan, Scott, “Rational Interpretation in Irrational Times: The Third Geneva Convention and the ‘War on Terror’” (2003) 44 Harv. Int'l L. J. 301, 314 Google Scholar.

67 Ibid., at 314-315.

68 Article 17 of the Third Convention, supra n. 1.

69 McDonald and Sullivan, supra n. 66, at 309.

70 Many countries have signed the Convention against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (31 Isr. Treaties 249), but only the Israeli Supreme Court ruled that torture, even in the case of a “ticking bomb”, is prohibited and unauthorized (even though an interrogator may use the defense of necessity). See H.C.J. 5100/94 The Public Committee Against Torture et al. v. State of Israel et al. 53(4) P.D. 818, 839-840.

71 Cassese, supra n. 26, at 5-6.

72 Dormann, supra n. 7, at 73.

73 Cassese, supra n. 26, at 8-9.

74 This approach, advocated by Cassese and many other jurists, is not the only one. For some of the different, opposite views, see: Beres, Louis Rene, “On Assassination as Anticipatory Self-Defense: the Case for Israel” (1991) 20 Hofstra L. Rev. 321 Google Scholar; David, Steven R., Fatal Choices: Israel's Policy of Targeted Killing, (Ramat-Gan, The Begin-Sadat Center for Strategic Studies, Bar-Ilan University, 2002)Google Scholar; Gross, Emanuel, “The Laws of War Waged between Democratic States and Terrorist Organizations: Real or Illusive?” (2003) 15 Fla. J. int' l L. 389 Google Scholar.

75 Ben-Naftali, Orna and Gleichgevitch, Sharon, “The Draft Legislation of the Internment of Enemy Personnel who are not Entitled POW Status” (2001) 7 Hamishpat 435, 442–444 Google Scholar [in Hebrew]; see also Moore, supra n. 5, at 9-12; Cassese, supra n. 26, at 5-6.

76 Naqvi, supra n. 6, at 582, 593.

77 Klabbers, supra n. 57, at 311.

78 Sec supra n. 48 (hereinafter: “the Law” or “the new Law”).

79 The historic background is based on four different sources, since in the principal ruling on this topic, C.F.H. 7048/97 Anonymous v. Minister of Defense el al 54(1) P.D. 721, Chief Justice Barak only briefly mentions that “the detainees were brought to Israel from Lebanon” (Ibid., at 733). The sources on which I relied are Linn, Yehezkel, Israeli Violations of Human Rights of Lebanese Civilians (Jerusalem, B'tselem, 2000) 32–42 Google Scholar; Barak, Eitan, “Under Cover of Darkness: The Israeli Supreme Court and the Use of Human Life as ‘Bargaining Chips’” (1999) 8 Plilim 77 Google Scholar [in Hebrew]; Edelist, Ran, Ron Arad: The Mystery (Tel-Aviv, Yedioth Aharonoth, 2000)Google Scholar [in Hebrew]; Ben-Naftali, Orna and Gleichgevitch, Sharon, “Missing in Legal Action: Lebanese Hostages in Israel” (2000) 41 Harv. Int'l L J. 185 Google Scholar.

80 Former Prime Minister Rabin said about the kidnapping of Dirani and Ubeid “…it was the acquisition of a significant asset, in the eyes of the terrorist organisation, for matters of exchange.” (Ha 'aretz, 21.6.1996). The Legal Advisor of the Knesset, Tzvi Inbar, has also determined in his opinion that the sole aim of holding the Lebanese is to use them as hostages, in exchange for Israel's MIA's or for information about them. ( Inbar, Tzvi, “Opinion Regarding the “Incarceration of Members of Enemy Forces who are not Entitled POW Status” Bill, 2000” (15.9.2000) 6)Google Scholar.

81 Although as far as Israel's internal law is concerned, the way in which a person is brought to justice is irrelevant to jurisdiction (Cr. A. 336/61 Eichmann v. Attorney General 16 P.D. 2033), in this case the way holds a special significance, because the sole aim of the kidnapping was to hold the Lebanese and not to bring them to justice, as was in the Eichmann case.

82 S.H. 76 (hereinafter: “the Detention Law”).

83 A.D.A. 10/94 Anonymous v. Minister of Defense 53(1) P.D. 97.

84 Ibid., at 107.

85 Ibid., at 108.

86 Ibid., at 113-114.

87 As written in her opinion: “…[t]ruly, it is possible that by the power of the Laws of War, which are a part of international law, enemies may be held even if there is only a slim chance of redemption of prisoners. But, as aforementioned, these are not the laws upon which the appellants' detention is based” Ibid., at 115.

88 Barak, supra n. 79, at 139.

89 Ibid., at 138.

90 C.F.H. 7048/97 Anonymous Persons v. Minister of Defense 54(1) P.D. 721.

91 Ibid., at 744.

92 Ibid., at 769.

93 Ibid., at 750.

94 Ben-Naftali and Gleichgevitch, supra n. 79.

95 It must be noted that according to the Protocol Additional of 1977, Hizbullah members will be granted POW status. However, Israel is not a party to that Protocol. Ben-Naftali and Gleichgevitch, supra n. 79, at 247.

96 Ben-Naftali and Gleichgevitch, supra n. 79, at 248.

97 Ibid., at 758; see also: A.D.A 5652/00 Ubeid v. Minister of Defense 55(4) P.D. 913, 922-923. However, it must be noted that in the ‘exchange of prisoners deal’ that took place in January 2004, the Supreme Court concluded that although they still pose a risk to the security of Israel, they must be released as part of State policy. The ‘special risk test’ that was the core of former rulings was abandoned, and the court found no reason to intervene in the government's decisions. Even though the two still posed a danger, they were released. It is worth mentioning, that in contradiction to IDF intelligence estimates, they do not play any significant role in Hizbullah these days (H.C.J. 918/04 Almagor – Organisation of Terrorism Casualties v. Prime Minister et al. (not yet published)).

98 H.C.J. 2967/00 Arad v. The Knesset et al. 54(2) P.D. 188, 190-191; H.C.J. 10154/03 Arad et al. v Attorney General et al (not yet published).

99 H.C.J. 2967/00 Arad, supra n. 98, at 191.

100 The situation in South Lebanon at the time was very complex: the region lacked a clear and agreed upon orientation in the eyes of international law – since the territory was occupied, the laws of belligerent occupation, as specified in the Fourth Convention, should be applied; however, Israel did not acknowledge the region's status as occupied territory, but considered it to be a ‘security zone’.

101 H.C.J. 2967/00 Arad. supra n. 98, at 192.

102 A.D.C. (T.-A.) 1/94. 18/94 Stale of Israel v. Dirani and Ubeid, (not published).

103 This essay will only discuss aspects of the Laws of War and international law, and not constitutional issues arising from the bill and consequent law. On that issue see: Ben-Naftali and Gleichgevitch, supra n. 75,448-449.

104 See Frankel-Shor, M., “The Knesset's Committee of Security and Foreign Affairs Legal Advisor's Opinion Regarding the ‘Incarceration of Unlawful Combatants’ Bill” (17/6/2001) 1 Google Scholar; and also, Inbar, supra n. 80, at 4-8.

105 Alon, Gidon, “Tailored with a Law”, Ha'aretz 10.2.2002 Google Scholar.

106 Article 1 of the Law, supra n. 48.

107 Frankel-Shor, supra n. 104, at 7.

108 Benvenist's opinion quoted in Frankel-Shor, supra n. 104, at 8.

109 Ben-Naftali and Gleichgevitch, supra n. 75, at 443. It should be mentioned that their essay was written in relation of the original bill; yet their arguments suit the definitions in the Law too, as was written in Frankel-Shor's opinion, supra n. 104, at 8.

110 Incarceration of Unlawful Combatants (Conditions of Incarceration) Regulations, 5762-2002, R.C. 588.

111 Israeli courts have determined that specific internal laws are superior to contradictory international treaties (see Cr.A. 5/51 Steinberg v. Attorney General 5 P.D. 1061). However, in regard with regulations the court determines, in obiter, that regulations, even specific ones, are not superior to a ratified international treaty (see H.C.J. 103/67 The American-European Beth-El Mission v. Minister of Welfare 21(2) P.D. 325). Therefore, it may be desirable to incorporate the privileges in the Law itself in order to clarify the scope of protection and not to operate in three optional levels (i.e. the Fourth Convention, international humanitarian law, the incarceration regulations).

112 Article 5 of the Fourth Geneva Convention, supra n. 20.

113 Article 2 of the Law, supra n. 48.

114 Pictet, supra n. 23, at 257-258.

115 Frankel-Shor, supra n. 104, at 13.

116 Ben-Naftali and Gleichgevitch, supra n. 75, at 445.

117 Edelist, supra n. 79, at 306-308; Inbar, supra n. 80, at 8. Dirani and Ubeid were eventually released, alongside other prisoners, in exchange for the remains of three IDFsoldiers kidnapped in 2000 and Elhanan Tannenbaum. Arad is still MIA.

118 F.C.H 7048/97, supra n. 79, at 741-743. Barak Ci accepts that “the term ‘national security’ is wide enough to encompass situations where the risk to national security is not derived from the detainee himself, but from the actions of others which may be influenced by the detention of that person.

119 Inbar, supra n. 80, at 8.

120 Article 7 of the Law, supra n. 48.

121 Detention is not a criminal punishment, but its effect (especially when it is indefinite) is equivalent to imprisonment, therefore 1 allow myself using the phrase “Presumption of Innocence”, though it is a term generally used in criminal law.

122 Article 5(e) of the Law, supra n. 48.

123 See, for example, the ruling in A.D.A 5652/00 Ubeid, supra n. 97, at 922-923.

124 Article 3(a) of the Law, supra n. 48.

125 Naqvi, supra n. 6, at 581.

126 Kretzmer, David, “The Supreme Court and the Fourth Geneva Convention: Domestic Enforcement and Interpretations”, 26 Mishpalim 49, 92 (1995)Google Scholar [in Hebrew]; Barak, supra n. 79, at 82-83.

127 H.C.J. 4764/04 Doctors For Human Rights v. IDF Commander in Gaza Strip (not yet published), para. 9.

128 Article 8 of the Law, supra n. 48.

129 Article 5(c) of the Law, supra n. 48.

130 Ben-Naftali and Gleichgevitch, supra n. 75, at 446; see also Part II, section E. 1.1.

131 See: H.C.J. 918/04 Almagor, supra n. 97.

132 Dinstein, quoted in Frankel-Shor, supra n. 104, at 15.

133 Article 3(c) of the Law, supra n. 48.

134 Frankel-Shor, supra n. 104, at 19.

135 Dinstein, supra n. 2, at 96-97; see also Part II, section B.

136 Dirani allegedly held Arad captive in 1986-1988 and was allegedly a member of a terrorist organization (“The Faithful Resistance”); Ubeid was a religious leader of the Hizbullah, also a terrorist organization. Israeli security authorities hold evidences showing that he encouraged Hizbullah members to commit actions against Israel. (See A.D.C. 1/94, 18/94, supra n. 102).

137 If the two will be prosecuted criminally, it would be difficult to release them when the time comes, for that will require presidential amnesty. Worth mentioning are the words of Secretary of Cabinet, Gideon Sa'ar: “regarding the arguments of those opposing the Law claiming that if there are evidence against the two they should be criminally indicted and not ‘fitted’ with a special law that will allow their imprisonment – it is not always possible to prosecute a detainee held by the State. You cannot expect the State to release terrorists so they could act against it. One must remember that the war against terrorism puts Israel in a complicated situation: it is so regarding the aforementioned law and also regarding the ‘targeting assassination’. These things are inevitable, deriving from self-defense needs, when there is no other option.” (Quoted in Alon, Gidon, “Tailored with a Law”, Ha ‘aretz 10.2.2002)Google Scholar. See also: H.C.J: 10154/03 Arad, supra n. 98, at para. 2; the Court argues that the Dirani was not prosecuted since there were not enough evidence for criminal prosecution.

138 Article 9 of the Law, supra n. 48.

139 H.C.J. 2055/02 Ubeid et al. v. Minister of Defense (not yet published).

140 When appealing to the High Court of Justice, an appellant is required to show that all other legal alternatives were exhausted. According to Barak, CJ, the appellants had an alternative legal remedy and could have objected the constitutionality of the Law each and every time the district court discussed their case, as part of the periodical judicial review required by the Law (H.C.J. 2055/02 Ubeid, supra n. 139).

141 The matter is intentionally absent so that internal law will fill the vacuum. Gross, supra n. 60, at 753.

142 Gross, supra n. 60, at 788.

143 Hague Convention, 1907, preamble (known as “de Martens Clause”); Article 1 (2) of the First Protocol, supra n. 10.

144 Ben-Naftali and Gleichgevitch, supra n. 79, at 247-248.

145 Sabel, Robbie, International Law (Jerusalem, The Harry and Michael Sacher Institute for Legislative Research and Comparative Law, 2003) 441 Google Scholar.

146 Article 2 of the Detention Law, supra n. 82.

147 Article 11 of the Detention Law, supra n. 82.

148 Article 11 of the Law, supra n. 48.

149 Article 4(a) of the Detention Law, supra n. 82.

150 Article 5(a) of the Law, supra n. 48.

151 Article 5 of the Detention Law supra n. 82, and article 3(c) of the Law supra n. 48, respectively.

152 Quoted at Frankel-Shor, supra n. 104, at 21.

153 Dershowitz, Alan M., “Preventive Detention of Citizens during a National Emergency – A Comparison between Israel and the United States” (1979) 1 Isr. YB. Hum. Rts., 295, 306–308 Google Scholar.

154 Vladeck, Stephen I., “A Small Problem of Precedent: 18 U.S.C §4001(a) and the Detention of U.S. Citizen ‘Enemy Combatants’” (2002–2003) 112 Yale L. J. 961, 968 Google Scholar; For the full story and criticism on it, see: Rostow, Eugene V., “The Japanese-American Case – A Disaster” (1945) 54 Yale L. J. 489 CrossRefGoogle Scholar.

155 Gross, supra n. 60, at 785.

156 Vladeck, supra n. 154, at 966. This case also differs from that of the Lebanese in that this action was done before the Geneva conventions were drafted, i.e. before the international prohibition on the imprisonment of people as hostages. Only in 1988 the American Congress installed the “Civil Liberties Act”, in which the American Government formally apologized for the war-time imprisonment of these innocent people and ordered each of the 80,000 survivors a $20,000 compensatory payment.

157 Army Regulation 190-8, Enemy Prisoners of War, Retained Personal, Civilian Internees and Other Detainees, Washington D.C., 1 October 1997.

158 The second part provides that: “A competent tribunal shall determine the status of any person not appearing to be entitled to POW status, who has committed a belligerent act or has engaged in hostile activities in aid of enemy armed forces, and who asserts that he or she is entitled to treatment as POW, or concerning whom any doubt of a like nature exists” Ibid., Section 1-6(b).

159 Ibid., Section 1-6(g).

160 Directive No. 20-15 of 15 March 1968. In order to cope with the Viet-Cong captives (members of guerilla forces righting alongside forces of the regular Northern Army), the government issued a directive establishing a military court (which included jurists), to act in accordance with article 5(2) of the Third Convention

161 Naqvi, supra n. 6, at 586-587; Moore, supra n. 5, 7.

162 Wedgwood, Ruth, “Al-Qaeda, Terrorism, and Military Commissions” (2002) 96 Am. J. Int'l L. 328, 335 CrossRefGoogle Scholar.

163 Hoffman, supra n. 50, at 164.

164 Moore, supra n. 5, at. 9.

165 Quoted at Hoffman, supra n. 50, at p. 161.

166 Rabkin, Jeremy, “After Guantanamo: The War over the Geneva Convention” (2002) Summer The National Interest 15 Google Scholar.

167 Steyn, supra n. 19, at 9-10.

168 Aldrich, supra n. 19, at 893.

169 Ibid., at 895.

170 Michael, J. D., Sweeny, , “Detention at Guantanamo Bay: A Linguistic Challenge to Law” (2003) 30(1) Hum.Rts. 15, 17 Google Scholar.

171 Prosecutor v. Tadic (IT-94-1-A, ICTY, 1999) paras. 163-169.

172 Sweeny, supra n. 170, at 16. Byers argued that the Geneva Conventions do not empower Rumsfeld to decide whether someone is a lawful or an unlawful combatant; that is the role of the judicial system. The Conventions should be interpreted broadly, so as to adjust to ongoing changes and dynamics in international law and international conflicts, which nowadays take a different form ( Byers, Michael, “Ignore the Geneva Convention and Put Our Own Citizens at Risk” (2002) 62(2) The Humanist 33)Google Scholar.

173 Moore, supra n. 5, at 11.

174 Aldrich, supra n. 19, at 897.

175 McDonald and Sullivan, supra n. 66, at 303.

176 The New Republic, 25 February, 2002.

177 Rasul v. Bush, 159 L. Ed. 2d 548, 558 (2004).

178 Al-Odah v. United States, 321 F.3d 1134 (D.C. Cir. 2003); see also Cole, David, Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism, 58–59 (New York, New Press, 2003)Google Scholar.

179 Even though there is one case where the “enemy combatant” was subject to criminal process, and was found guilty. See: United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002).

180 Al-Odah et al. v. United States, supra n. 178.

181 Rasul v. Bush, supra n. 177, at 561.

182 Ibid., at 563-564.

183 Ibid. at 565.

184 Padilla v. Bush, 233 F. Supp. 2d 564, 573-574 (S.D.N.Y. 2002).

185 Rumsfeld v. Padilla, 159 L. Ed. 2d 513, 574 (2004).

186 Hamdi v. Rumspheld, 159 L. Ed. 2d 578 (2004).

187 Hamdi v. Rumsfeld, 296 F.3d 278, 287-288 (4th Cir. 2002). Cole argues that Hamdi's case is unique, for he was an American citizen. The other detainees, who were not American, remained deprived of rights (Cole, supra n. 178, at 40).

188 Hamdi v. Rumsfeld, 159 L. Ed. 2d 578, 591 (2004). As the Court comments at p. 592: “Citizens who associate themselves with the military arm of the enemy government, and with its aid, guidance and direction enter the United States bent on hostile acts, are enemy belligerents within the meaning of the law of war”.

189 Ibid., at 603-604.

190 Quoted in Mary Ellen O'Connell, “What is War”, available at http://jurist.law.pitt.edu/forum/oconnelll.php, at n. 4.

191 Article 12 of the Incarceration of Unlawful Combatants (Conditions of Incarceration) Regulations, supra n. 110.

192 Ben-Naftali and Gleichgevitch, supra n. 79.

193 Gross, supra n. 60, at 734-735.