Are Guantanamo Detainee Dismissals Signaling Legal System Flaws?

[Astronuc]

Military Judges Dismiss Charges for 2 Detainees
http://www.nytimes.com/2007/06/05/world/americas/05gitmo.html

GUANTÁNAMO BAY, Cuba, June 4 — The government’s new system for trying Guantánamo detainees was thrown into turmoil Monday, when military judges in separate decisions dismissed war crimes charges against two of the detainees.

The rulings, the latest legal setbacks for the government’s effort to bring war crimes charges against detainees, could stall the military’s prosecutions here.

The decisions did not turn on the guilt or innocence of the detainees, but rather made essentially the same determination that the military had not followed procedures to declare the detainees “unlawful enemy combatants,” which is required for the military commission to hear the cases.

Pentagon officials described the rulings as raising technical and semantic issues, and said that they were considering appeals. If appeals failed, they said, they could go through the process of redesignating the detainees.

But military lawyers said the rulings exposed a flaw that would affect every other potential war-crimes case here. And the rulings brought immediate calls, including from some on Capitol Hill, for Congress to re-examine the system it set up last year for military commission trials and, perhaps, to consider other changes in the legal treatment of Guantánamo detainees.

In an interview, Senator Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, said after the first of the two rulings Monday that the decision raised significant issues and could prompt Congress to re-evaluate the legal rights of detainees, including Congress’s decision last year to revoke the rights of detainees to file habeas corpus suits to challenge their detentions.

“The sense I have is that there’s an unease, an uncomfortable sense about the whole Guantánamo milieu,” Mr. Specter said, adding, “There’s just a sense of too many shortcuts in the whole process.”

Will wonders never cease? Some of my faith is restored.

 

[chemisttree]

Apparently the law was written to allow the military tribunals to hear the cases for "unlawful enemy combatants" only. In Congress' rush to enact some legislation to deal with the detainees, the language was imprecise. The military tribunal did not prove that the combatants were 'unlawful'. I predict that the law will be rewritten in the near future.

The best part of this story, "The surprise decisions do not spell freedom for the detainees."

http://www.msnbc.msn.com/id/19044292/

 

[edward]

I wonder what the military definition of an unlawful enemy combatant is??

 

[chemisttree]

'Unlawful Combatant'...If there even is such a thing. Perhaps they meant out of uniform combatants.

 

[BobG]

The Geneva Convention doesn't have a term, "unlawuful combatants", but it does specify what type of combatants have POW status when captured, as well as what to do with those that aren't automatically granted POW status:

Article 4
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5. Members of crews [of civil ships and aircraft], who do not benefit by more favourable treatment under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
B. The following shall likewise be treated as prisoners of war under the present Convention:
1. Persons belonging, or having belonged, to the armed forces of the occupied country...
...
Article 5
...
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.

The detainees have to face one tribunal to determine their status and then, if they are found to be unlawful combatants, can undergo another trial for war crimes, etc.

The exception is mercenaries and children. Mercenaries are denied POW status by Article 47, Protocol I of the 1949 Geneva Conventions. Additionally, the use of mercenaries was banned by the United Nations by resolution 44/34, the International Convention against the Recruitment, Use, Financing and Training of Mercenaries. Using children under the age of 15 was also banned in 1989 by the UN's Article 38, meaning they can never be lawful combatants or POWs (theoretically, something else will be done with children besides try them as war criminals, but I don't think the UN ever specified what to do with child warriors).