TRIALS BY FIRE - Belfer Center for Science and International Affairs

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TRIALS BY FIRE - Belfer Center for Science and International Affairs

Civilians can also be detained temporarily in the immediate area of ongoingmilitary operations for their own protection and to ensure they do not interferewith military operations. 318Unlawful Enemy Combatants: While the Geneva Conventions only explicitlyrecognize POWs and civilians, terrorists and other individuals engaged inmodern warfare do not fit neatly into these two categories. For this reason theBush Administration created the category of “unlawful enemy armed combatants.”Although this designation is controversial, the Fourth Geneva Conventionanticipates that some people who are neither civilians nor POWs willbe detained. 319 The Convention “does not purpose to restrict the substantivecriteria for determining who in particular may be detained.” 320 Both the Bushand Obama Administrations believe that persons who do not obey the laws ofwar and who pose an armed threat may be detained pursuant to this authority.According to the Supreme Court’s decision in Hamdan v. Rumsfeld, CommonArticle III 321 of the Geneva Conventions protects at minimum unlawful enemycombatants. 322 Common Article III prohibits cruel treatment, torture, andhumiliating treatment. Moreover, Article III requires that a “regularly constitutedcourt” mete out any punishment, and that detainees be afforded “all thejudicial guarantees which are recognized as indispensable by civilized people.”Thus, it is an open question whether ad hoc military tribunals are a prohibitedmeans of trying such detainees. Not disputed, however, is that in accordancewith Hamdan CIA black sites are illegal. Consequently, President Bush announcedthe closure of these secret prisons shortly after the Hamdan decisionwas handed down.Human Rights LawThere is significant controversy over whether human rights law also applies todetentions during a period of conflict. Human rights law, like the laws of war,is a body of international law consisting of treaties and the customary practiceof states. It is usually thought to govern how states treat their own citizensrather than conflict between states.Nevertheless, many scholars and practitioners of international law stronglybelieve that human rights law applies to armed conflicts. For example, in 2006the United Nations Commission on Human Rights (which has since been replacedby the UN Human Rights Council) criticized the US for failing to appropriatelyapply the International Covenant on Civil and Political Rights (IC-Belfer Center for Science and International Affairs | Harvard Kennedy School113

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