The Issue of Nationality.

For the US Administration a further issue that he was most likely to have experienced torture and ill treatment while detained complicated the case of Walker Lindh. His status as a combatant is problematical as he was captured on the battlefield. Furthermore there are doubts as to whether he received a Fair Trial in a region that generates a jury pool, drawn from a community of retired military veterans, Pentagon employees and Federal workers. Despite the uncertainties the US is determined more then ever before to fight the war on terrorism.

The problem of Nationality has also been under review for a considerable time to determine the fate of nine British Nationals held at Camp Delta. The issue had come before a US court in August 2001, were the judge held that these prisoners had no right to trial before American courts. They were foreign citizens captured in a war zone and because they were detained in a territory that is not American ground, the courts were outside their jurisdiction to grant habeas relief. If the US courts reject to resolve their status on the basis that prisoners find themselves on Cuban Territory, why can’t their detention and fate be determined by Cuban Courts? The US has complete jurisdiction and control over Guantanamo Bay while Cuba retains ultimate sovereignty. Therefore any argument against judicial jurisdiction is preposterous.  

As a result of this ruling and in the recent case of Al Odah, all British Nationals held in Guantanamo Bay are caught in a legal black whole; the British Government refuses to intervene by making diplomatic representations to the US Administration. This demonstrates how the interest of the state can overturn the rights of individuals. The British detainees as well as their families are isolated in International Humanitarian Legislation. A news report published in the Independent claims the Britons held at Guantanamo Bay could be back in the UK before the New Year. The catch is that the detainees are required to sign confessions before they are deported to serve their sentences in Britain. The detainees have to strike a one sided bargaining proposal i.e. have to plea guilty to a nonsense charge and only come to Britain to serve their sentence. The irony seems to be after being detained for two years, seven of the nine detainees were still being interrogated to establish if they had done “something wrong”.

There has emerged a loophole in International Humanitarian Law. It is clear that a terrorist is not eligible to POW status. What is the status of a terrorist captured in an international armed conflict? On any occasion individual’s rights and protection should be paramount under International Law, and the detaining power should respect their fundamental Human Rights. If loopholes do exist there should be a prompt process to improve existing legislation. If states are in breach to comply and implement the Conventions, but what body or institute is to challenge them?

The debate between the rights of states and the rights of individuals complicates the situation of the prisoners held at Guantanamo Bay. The Geneva Conventions only apply to High Contracting Parities of an armed conflict. After the fall of the Taliban who are to protect the prisoners? In the absence of any established institute to uphold the prescriptions in the Geneva Convention, the prisoners are left alone deserted with no rights to appeal. POWs under the Third Geneva Convention are described as “protected persons” and their rights are “inalienable”. But who is to protect them? The Geneva Convention seems to be an inspiring documentation. The US evidently bound by the regulations has departed from the requirements of the Geneva Conventions. The words are empty and meaningless as the individuals have no machinery available to guarantee them their rights which are obtainable under the Conventions; instead their standards of treatment are determined by discretionary executive policy, not by a legal framework.

A problematic implication of the Geneva Convention on POW is that it applies only to International wars. This is problematic as in modern times wars are increasingly of an internal character. Furthermore the Conventions are concerned with states and nations, and not with individuals. The Taliban was a state until its fall, but who are to protect the soldiers? Al Qaeda is clearly not a state and does not have an official national army, but its soldiers still have some legal right of protection.