JURIST Contributing Editor Jeffrey Addicott of St. Mary's University School of Law, formerly a Lieutenant Colonel in the US Army Judge Advocate General’s Corps, says the recent report by UN Special Rapporteurs condemning the US detention camp at Guantanamo Bay is based on a false legal premise and comes to flawed conclusions, and that the US government was therefore right to reject it…

The recently released "Report" issued by the United Nations Human Rights Commission on the situation of detainees at Guantanamo Bay provides yet another opportunity to rightfully distinguish the misguided rhetoric of the Special Rapporteurs at the United Nations from the real issues associated with the Global War on Terrorism. Contrary to the findings of the Report, the United States is perfectly complying with the proper rule of law associated with engaging the enemy combatants of al-Qa'eda and their allies (predominantly the Taliban).

The international community, especially the well-established democracies led by the United States, is faced with an enemy and a "war" unlike anything the world has ever known. The foot solders of militant Islam are not common criminals or even common terrorists in the traditional meaning of the concept. The scope of al-Qa'eda and their allies is so great that the entity constitutes a "virtual State" that can only be dealt with under the long established laws of war. This has been the position of the United States government since the "armed attack" of September 11, 2006.

The fact that a state of international armed conflict between the United States and the al-Qa'eda network came into being on September 11, 2001, constitutes the fundamental legal foundation for understanding the appropriate rule of law that should be applied. Even NATO recognized the need to characterize the attacks under the rubric of the laws or war and not under common criminal law principles when they invoked Article 5 of the NATO treaty because one of its members, the United States, had suffered an unprovoked "armed attack."

Rational people understand that the escalating and often uncontrollable level of disorder and violence that characterizes the Global War on Terrorism can only be met by using the unique set of laws established for armed conflict. While it is true that the laws of war need to be revised (and there are many areas of complaint) to encompass the new paradigm posed by the forces of militant Islam, critics of all stripes should assist in this process instead of voicing false charges that the United States government officially engages in a policy of "torture," "human rights abuses," "illegality," etc. vis a vis the al-Qa'eda and their allies.

Unfortunately, the recent Report issued by the United Nations Human Rights Commission on the situation of detainees at Guantanamo Bay repeats the misguided and sophomoric attacks on America that are all too familiar. While the Report is chalked full of blatant distortions of fact (the special rapporteurs refused to even visit the facilities at Guantanamo) drawn from former detainees with a clear inclination to lie (if you can murder you can lie) and their attorney's, the central and fundamental flaw of the Report is that it refuses to recognize the fact that a state of armed conflict exists between the United States and the armed and vicious fighters of the radical al-Qa'eda network. Instead, the Report wholeheartedly adopts a false premise that the United States "is not currently engaged in an international armed conflict between two Parties to the … Geneva Conventions." Thus, in their eyes, the detainees are entitled to all the provisions of international law that would otherwise not apply. In short, they should be released.

Not only does the United States reject this false premise, but it is not supported by any pronouncement or resolution from the United National Security Council. On the contrary, immediately following al-Qa'eda's armed attack of September 11, 2001, Security Council Resolution 1368 recognized that the United States had the inherent right of self-defense recognized under Article 51 of the Charter of the United Nations – "[r]ecognizing the inherent right of the individual or collective self-defense in accordance with the Charter." In essence, the Security Council recognized what the Human Rights Commission now rejects – that the United States has suffered an "armed attack" by an organized force significant enough in scope to invoke the laws or war.

Thus, under the laws of war, the purpose of detaining these enemy combatants is to ensure that they do not return to engage in combat activities against the United States and, in this unique situation, to allow American officials the opportunity to gather any necessary intelligence about the terrorist's organizational infrastructure, financial network, communication system, weapon supply lines and plans for future terror attacks. As is the practice in all wars, the purpose of detention is not to punish the enemy combatant, but to protect the host nation from future acts of violence by the enemy. Contrary to the Report, there is simply nothing illegal about the practice of indefinite detention in time of war.

Again, the majority of the fighters held in the specially built facility named Camp Delta in Guantanamo Bay, Cuba, were captured on the battlefields of Afghanistan. Although all of the detainees are said to be participants in the Global War on Terrorism, it is true that the Bush administration has not deemed these detainees as eligible for the special status of "prisoner of war" under the Third Geneva Convention. The reason that the Third Geneva Convention does not apply is because both the Taliban fighters and the al-Qa'eda fighters fail to qualify as lawful enemy combatants under the applicable provisions of international law. Specifically, prisoner of war status is only conferred on persons who are "[m]embers of armed forces of a Party to the conflict" or members of militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party … provided that such … fulfill[s]" four specific conditions:

• That of being commanded by a person responsible for his subordinates;
• That of having a fixed distinctive sign recognizable at a distance;
• That of carrying arms openly; and
• That of conducting their operations in accordance with the laws and customs of war.

Clearly, the al-Qa'eda and their allies do not get the special status of prisoners of war, but are more properly classified as unlawful enemy combatants. Nevertheless, despite the fact that the Third Geneva Convention does not apply to these enemy combatants, the Bush administration has clearly treated all detainees in accordance with the humanitarian concerns set out in the Geneva Conventions. Accordingly, the detainees receive regular visits by the International Committee of the Red Cross, diplomats from their respective nations, military attorneys, and various other fact finding groups. As noted, the Special Rapporteurs were also invited but were content to issue a Report without viewing the facility.

Since the detainees are not prisoners of war, they can be questioned. Whereas Article 17 of the Third Geneva Convention
provides that prisoners of war are only required to give their "surname, first names and rank, date of birth, and army regimental, personal or serial number, or failing this, equivalent information," unlawful enemy combatants may be interrogated.

Certainly, if the Third Geneva Convention covered the detainees, American authorities would not be entitled to interrogate them or obtain additional information. However, enemy combatants who are not prisoners of war do not fall under the protections of the Third Geneva Convention and may therefore be questioned by American interrogators on additional topics of interest.

A recurring allegation the Report stressed was the charge of torture or ill-treatment by American officials of certain detainees. These claims were generally associated with the issue of interrogations, but also extend to criticisms of the living conditions of the detainees. Simply put, there is no evidence that the United States engages in an official command directed policy of torture or ill-treatment of the detainees. While government officials responsible for gathering information from detainees certainly employ the full range of permissible interrogation tactics to include offering various incentives such as money, engaging in trickery, or offending cultural habits, they do not violate the Torture Convention. Again, since the detainees are not entitled to prisoner of war status, international law does not forbid interrogation so long as it is conducted free of torture or ill-treatment. The fact of the matter is that American soldiers who have engaged in misconduct have done so in their individual capacity and the military has done a superior job in investigating the allegations and punishing those few individuals who have been guilty (e.g., Abu Ghraib) of abuse.

A more fruitful area of concern that the Report touched on is the claim that even if one agrees that the detainees may be held and questioned, the process of deciding what do to with the more than 500 detainees in Guantanamo Bay is far too lengthy. However, if one uses the length of detention in previous wars as a standard, the current detention is below the average for other wars.

In summary, by rejecting the Report, the United States is not holding itself above the law. Indeed, the government is acting under the appropriate rule of law associated with the dentition and treatment of enemy (illegal) combatants during war. That rule of law is set out in the laws of war and the United States has followed both the spirit and letter of the law in the handling of these people.

Jeffrey Addicott is Associate Professor of Law and Director, Center for Terrorism Law, St. Mary's University School of Law. An active duty Army officer in the Judge Advocate General’s Corps for twenty years, he spent a quarter of his military career as a senior legal advisor to the United States Army’s Special Forces. He retired in 2000 at the rank of Lieutenant Colonel. His latest book is Winning the War on Terror: Legal and Policy Lessons from the Past (2003).
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