Maria Nybondas 

October 2002
(Last modified March 2005) 

As a consequence of the attacks of 11 September 2001 on the Twin Towers and Pentagon in the United States of America and the resultant conflict in Afghanistan, hundreds of persons detained by the USA on the battlefield of Afghanistan, as well as persons apprehended elsewhere in the context of the ‘Global War on Terror’ declared by the USA, have been interned at the Guantánamo Bay Naval Station in Cuba since January 2002. The possible indefinite detention without trial at a naval base not on the territory of or within the jurisdiction of the USA of both persons detained in the context of an armed conflict and alleged terrorists (including supposed members of the Al Qaeda transnational terrorist network) has been the subject of heated controversy, not least because of the secrecy with which the situation has been handled, which has made monitoring of the conditions of detention of the detainees extremely difficult. Several states and international organisations have opined that both the fact of the detention and the conditions of detention are in breach of international humanitarian law and international criminal law. Not only did the USA fail to recognise the prisoner of war (POW) status of the detainees, including former members of the armed forces of Afghanistan, but it has emerged that the detainees have been subject to cruel and inhumane treatment possibly amounting to torture.
As a consequence, the following questions may be asked. Are the 1949 Geneva Conventions applicable to the situation? With regard to the nature of the conflict, do the detained persons have the status of prisoners of war, or must some or all of them be considered as unprivileged belligerents? Can other international law instruments be applied to the detained persons, and are they being applied? Are there any minimum rights that the detainees can appeal to concerning their treatment?

The legal questions related to the situation of the detainees at Guantánamo Bay involve several aspects of international humanitarian law. When considering whether there are rules under international humanitarian law which are applicable to the treatment of at least those detainees captured on the battlefield in the context of an armed conflict within the meaning of international humanitarian law, it has to be determined whether, at the time of the capture, there was an armed conflict.
Almost immediately after the terrorist attacks in New York and in Washington, President George Bush asserted that the attacks meant that the United States was at war.[1] However, a few weeks later, Professor Alain Pellet published his view, according to which the attack did not constitute an armed attack or an act of aggression which would imply that there was an armed conflict between the US and the aggressor. In his opinion an armed conflict presupposes that there are identifiable adversaries, in accordance with the most important humanitarian law instruments, including the 1949 Geneva Conventions.[2] Even if the attack could be seen as a threat to international peace and security, as was held in the Security Council resolution that followed on the attack,[3] that as such did not mean that the attack was an armed attack as understood by the law of armed conflicts. Article 39 of the United Nations Charter also states as follows: ‘The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security’ (emphasis added). Accordingly, the fact that the Security Council makes a recommendation does not mean that the act was an act of aggression, as it could also have been another kind of threat to or breach of the peace. However, it was the view of Professor Pellet that whatever the situation was to be called, ‘our own legal arsenal is poorly adapted’ to determine this issue.[4]
As for the situation at the time of the capture of the detainees brought to Guantánamo Bay, the US view was that the armed attacks gave it the right to self-defence and, thus, the right to a counter attack, on Afghanistan, not because it considered Afghanistan as legally responsible for the September 11 Acts but because it was harbouring Osama Bin Laden and Al Qaeda terrorist training camps.[5] The conflict in Afghanistan certainly fulfilled the criteria of an armed conflict, having regard to the intensity with which the fighting was carried out and the scale of the conflict. This was recognised by the U.S. District Court for the District of Columbia on 8 November 2004 in the Hamdan case.[6] Consequently, at this point there is no doubt that there was an armed conflict, and more precisely an international armed conflict.
While there may be differing views regarding the initial attack on targets in the US, only the existence of an armed conflict commencing with the bombardment of Afghan targets is directly relevant for the discussion on the status of the detainees at Guantánamo Bay, or at least those which were captured on the Afghan battlefield. Regarding those detainees detained elsewhere within the context of the GWOT but not during a situation of armed conflict, international humanitarian law does not apply, and their status as detainees must be determined by reference to international human rights law.


Regarding the detainees who were captured during an international armed conflict, such as that in Afghanistan, consideration should be had to whether, on the basis of international humanitarian law rules, they are prisoners of war and, accordingly, entitled to treatment as laid down in the third Geneva Convention of 1949.[7]
The relevant rules as to who can get a status as POW can be found in Article 4 of the Third Geneva Convention and Articles 43 and 44 of 1977 Additional Protocol I to the Geneva Conventions. Both the US and Afghanistan are parties to the Geneva Conventions, which are accordingly applicable to the conflict in Afghanistan. Moreover, the Geneva Conventions are part of international customary law and are as such applicable even without the ratification of a State Party to the conflict. Although the US has not ratified Additional Protocol I, the rules included in this instrument are by and large constituent of customary law, which would also make these rules applicable to the US.
International humanitarian law makes a distinction between combatants and non-combatants. Only combatants can acquire a status as POW. Accordingly, the important question is whether the detainees at Guantánamo Bay were combatants, as understood by IHL rules, in the armed conflict in Afghanistan.
Authors have distinguished between members of the Taliban and members of Al Qaeda. The Taliban constituted the Afghan government at the time of the conflict, while Al Qaeda has been described as a terrorist organisation, supported by the Taliban, but not a part of it. [8] As to the Taliban fighters, since they were part of the government forces they should have the right to a POW status when captured. Those members of Al Qaeda who were integrated into the Taliban armed forces as militias could also be entitled to a POW status, provided they conformed to the conditions of combatancy. [9]
In February 2002 the President of the United States made a statement in which he determined that the Third Geneva Convention was applicable to the Taliban detainees. However, in its application of the Geneva Conventions, the Government had concluded that the detainees were not entitled to a POW status, ‘[u]nder the terms of the Geneva Convention’. The statement did not further explain what ‘terms’ these were, or rather which provisions the detainees did not comply with.[10] Furthermore, according to the President, members of Al Qaeda did not qualify as POWs, as Al Qaeda was not a party to the Conventions, but rather a ‘foreign terrorist group’.[11]
Article 4 of Geneva Convention III lays down which groups of persons are entitled to a POW status when captured in an armed conflict. Article 4(A), which includes rules applicable to non-occupied territory, reads as follows:
‘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, fulfil 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, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, 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.’[12]
While combatants have a right to take part in fighting carried out by the armed forces, a non-combatant commits a war crime if involved in the same sort of activities. A non-combatant can be prosecuted for taking a direct part in hostilities.
Some categories of people who are non-combatants, according to Geneva Convention III, have a right to be treated as a POW. However, so called unprivileged belligerents, that is, persons who take part in fighting but do not fulfil the criteria for being combatant, are not entitled to POW status when captured by the enemy forces.[13]
The Al Qaeda network has been considered as not falling within the understanding of regular armed forces, although it seems that the network is well organised and also has a clear leadership, both of which are requirements of Article 4 of Geneva Convention III.[14] There are, however, several criteria of regular armed forces that are not fulfilled by the Al Qaeda network. The members of the Al Qaeda cannot be considered as an identifiable armed group, as presupposed by Article 4A(2)(b) of Geneva Convention III. Nor were the Al Qaeda fighters fighting on the side of the armed forces of Afghanistan, one of the parties of the conflict in Afghanistan, within the meaning of Article 4A(2). Furthermore, the view has been expressed that Osama bin Laden, despite being the leader of the network, was not a commander in the sense of Article 4A, as he did not have a responsibility towards the government nor towards the people of Afghanistan.[15] Accordingly, there are several arguments on the basis of which it can be held that members of Al Qaeda, when captured, were not POW’s within the meaning of Geneva Convention III. However, by only stating that the Al Qaeda network was not a State Party to the Geneva Conventions and that, therefore, the detainees belonging to Al Qaeda were not entitled to a POW status, some necessary legal arguments in the statement were missing.
Particularly important for the situation of the detainees at Guantánamo Bay is the wording of Article 5 of Geneva Convention III, the latter part of which reads as follows:
‘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.’
On the basis of this provision, the detainees at Guantánamo Bay whose status at the time of their capture was not clear, should be given the same treatment as that given to POWs. According to this rule, a decision not to treat a person as a POW has to be made by a competent tribunal and not by the executive or other military person.[16]

Prisoners of war can only be convicted for crimes committed during the conflict by a regular military tribunal. For the detainees at Guantánamo Bay this means that they should be entitled to the same kind of tribunal as where American combatants are being prosecuted when they have committed war crimes.
When it has been decided that some persons are not entitled to a POW status, these detainees should be treated according to international customary law rules, i.e. in a humane way. If considered that also the rules of Additional Protocol I are indeed applicable to the situation discussed here, Article 75 of API should be mentioned. The most relevant parts of Article 75 are as follows:

’1. In so far as they are affected by a situation referred to in Article 1 of this Protocol, persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions or under this Protocol shall be treated humanely in all circumstances and shall enjoy, as a minimum, the protection provided by this Article without any adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or on any other similar criteria. Each Party shall respect the person, honour, convictions and religious practices of all such persons.
2. The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents:
(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(i) murder;
(ii) torture of all kinds, whether physical or mental;
(iii) corporal punishment; and
(iv) mutilation;
(b) outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form or indecent assault;
(c) the taking of hostages;
(d) collective punishments; and
(e) threats to commit any of the foregoing acts.’
Even if these provisions are not recognised by the US?and in the official statements of the US government reference has in fact been made only to Geneva Convention III?the rules of Common Article 3 of the Geneva Conventions are applicable to all persons involved in an armed conflict. This article requires humane treatment of people, regardless of their status within the conflict. 
The Court of Appeal of England and Wales in the United Kingdom in November 2002 rendered a decision in a case that had been brought before it as a consequence of the detentions at Guantánamo Bay.
The English Court of Appeal considered its possible jurisdiction in the case. It finally dismissed the application but pointed out some of the questions that have not been solved with regard to the detainees and their rights. One of the issues that are interesting from the point of view of international law is the fact that the US Courts have stated that they do not have jurisdiction in cases concerning the detainees at Guantánamo Bay, as the base is not part of US territory.
The English Court of Appeal found this surprising, having regard to the fact that the US has exclusive control over the territory. Access to a US court would be in accordance with the requirements of the Geneva Conventions, which spell out the right to have your status decided by a court or tribunal. The Court of Appeal also thought there would be reason to object to the consequence of the lower court’s determination, namely that a person could be indefinitely detained without access to court. Such a treatment would be in breach of recognised international human rights.
Since then several cases have been brought before US courts by persons detained at Guantánamo Bay Naval Base. On 28 June 2004 the US Supreme Court decided three cases related to detainees suspected of terrorism.[17] In Rasul v. Bush and in Hamdi v. Rumsfeld, the detainees had been held at Guantánamo Bay. The central issue in Rasul was not the status of the detainee, but whether US courts had jurisdiction to consider challenges to the legality of the detention at Guantánamo Bay. The Supreme Court concluded that the control that the US maintained over Guantánamo sufficed to give US courts jurisdiction to hear habeas corpus challenges, but did not address the issue of POW status under international law, more specifically under Geneva Convention III.[18]
In Hamdi, the case concerned a detainee who was held at Guantánamo Bay and was by the government considered as an ‘enemy combatant’. However, contrary to the Rasul case, the detainee in the present case turned out to be a US citizen. In its majority decision, the Court paid some attention to international humanitarian law and pointed to provisions which stated that detention may not last longer than active hostilities.[19] The Court did not make any findings as to the legality of the detention. However, it found that in this case, the detainee, a citizen of the US, must be given an opportunity to challenge his status as an enemy combatant before a neutral decision maker.[20] According to the Court, such a neutral authority could be ‘an appropriately authoritzed and properly constituted military tribunal.’ The Court recognised that where enemy detainees asserted POW status under Geneva Convention III, US military regulations provided for tribunals to be made available for these purposes.[21] As for this specific case, the Court did not pronounce on which neutral authority would be the appropriate one.
Neither of the two cases concerning Guantánamo Bay detainees recognised a POW status of the detainee under international humanitarian law. Only Judges Souter and Ginsburg, in their dissenting opinion in Hamdi, found that the detainee in the case would qualify as a POW under Geneva Convention III.[22] In addition, they held that the treatment that Hamdi had been subjected to while in detention, was not in conformity with the treatment of a POW, and thereby constituted a violation of Geneva Convention III. According to the dissenting judges, the detainee should have been treated as a POW until his status was determined by a competent tribunal.[23] As such, this statement by the dissenting judges would be a recognition of the rights of the Guantánamo Bay detainees under Geneva Convention III. However, as pointed out by Sybill Pauckstadt, the Hamdi case concerned a US citizen, and recognition of POW status in the case of a national who takes up arms against his own State would be in contradiction with ‘the prevailing opinion in international law’.[24]
The two cases, nevertheless, recognise the right of these Guantánamo Bay detainees to a process before a US judicial body.
Subsequent to these Supreme Court decisions, several other cases concerning Guantánamo Bay detainees have come before the US District Court for the District of Columbia.[25] Although reference has been made to the Rasul and the Hamdi cases, the outcome of these have varied. It is expected that the Supreme Court will have to settle the issue concerning the rights of the Guantánamo Bay detainees also in these cases.[26] 

As can be seen from the above, there are rules under international law which are meant to safeguard the humane treatment of all persons, even in cases where their POW status (or lack of it) has not been determined.
For the detainees the first problem that needs to be solved is that of the legality of their detention, their treatment and their rights. The US Supreme Court decisions did not explicitly set out the rights of the detainees under international law, but provided for a possibility for the detainees to challenge their indefinite detention.
Looked at from a larger perspective, the status of the GWOT, terrorism, or terrorist attacks and the resultant counter measures will have to be addressed. It has to be kept in mind that in an armed conflict other rules apply than in the ‘normal’ situation. Still, the GWOT cannot in the abstract be considered as constituting an armed conflict. Until the threshold of armed conflict has been reached, international human rights are applicable and the most essential cannot be derogated from for reasons of convenience, emergency or for any other reasons. 

[1] See, for example, Bush, ‘Statement by the President in His Address to the Nation’, 11 September 2001, and Bush, ‘President urges Readiness and Patience’, 15 September 2001,
[2] Pellet, Alain, No, This is not War!, The Attack on the World Trade Center: Legal Responses, at
[3] Resolution 1368 (2001), in which the Security Council used the following wording: ‘regards such acts, like any act of international terrorism, as a treat to international peace and security’ and Resolution 1373 (2001), where the Security Council reaffirmed that ‘such acts, like any act of international terrorism, constitute a treat to international peace and security’.
[4] Pellet, Alain, No, This is not War!, The Attack on the World Trade Center: Legal Responses, at
[5] Gill, T.D., De gedetineerden in Guantánamo en het Internationale Humanitaire Recht, Militair Rechtelijk Tijdschrift, Maart 2002, Afl. 3, p. 126. See also Bush, ‘Presidential Address to the Nation’, 7 October 2001,
[6] Salim Ahmed Hamdan v. Donald H. Rumsfeld, United States District Court for the District of Columbia, Civil Action No. 04-1519 (JR), pp. 13-14.
[7] See Geneva Convention III of 12 August 1949, at
[8] Talsma, H.J.J., Humanitair overwinnaarsrecht?! De status van gevangen genomen Al Qaeda-strijders in het humanitair oorlogsrecht, Militair Rechtelijk Tijdschrift, Maart 2002, Afl. 3, p. 120.
[9] Gill, T.D., De gedetineerden in Guantánamo en het Internationale Humanitaire Recht, Militair Rechtelijk Tijdschrift, Maart 2002, Afl. 3, p. 126.
[10] Status of Detainees at Guantánamo, Fact Sheet, White House, Washington D.C., 7 February 2002, at
[11] Ibid.
[12] Geneva Convention III of 12 August 1949, at
[13] See Gill, op.cit., p. 126.
[14] See Talsma, op.cit., p. 123.
[15] See Talsma, op.cit., p. 123.
[16] See Abbasi & Anor., R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs & Secretary of State for the Home Department [2002] EWCA Civ 1598 (06 November 2002), at
[17] Hamdi et al v. Rumsfeld, Supreme Court of the United States, No. 03-6696, Opinion of O’Connor, J., 28 June 2004, 542 U.S. _ (2004) ; Rasul et al v. Rumsfeld, Supreme Court of the United States, No. 03-334, Opinion of the Court, 28 June 2004, 542 U.S. _ (2004); and Rumsfeld v. Padilla, Supreme Court of the United States, No. 03-1027, Opinion of the Court, 28 June 2004, 542 U.S. _ (2004).
[18] Rasul, p. 17.
[19] See among other provisions Article 18, GC III.
[20] Hamdi, p. 26.
[21] Ibid., p. 31.
[22] Ibid., Opinion of Souter, J., p. 11.
[23] Ibid., Opinion of Souter, J., p. 12.
[24] Sybill Pauckstadt, ‘Lighting the legal black hole? ? The US-Supreme Court, Hamdi and the “enemy combatant”, Bofaxe No. 278E, 28 July 2004, available at
[25] See Hamdan v. Rumsfeld, Civil Action No. 04-1519 (JR), 8 November 2004; Khalid v. Bush, Civil Case No. 1:04-1142 (RJL), 19 January 2005; and In re Guantanamo Detainee Cases, Civil Action Nos. 02-CV-0299 (CKK); 02-CV-0828 (CKK) etc., 31 January 2005.
[26] Bernard Dougherty, ‘Severe Setback in the Battle for Rights of Guantanamo Detainees’, Bofaxe No. 290E, 18 February 2005, available at