Human Rights Legislation.

Article 2: Freedom from Torture and Inhuman Treatment.

Article 5: The Right to a Fair Trial.

Article 16: The Right to Recognition as a Person before the Law.

Article 17: The Right to Compensation for Miscarriage of Justice.

Article 21: The Right to Equality before the Law 

More central to the theme of the question, the American Convention on Human Rights includes an article specifying the rights concerning prosecution. It is stated in Article 7 that; “any detained person shall be brought promptly before a judge… and shall be entitled to a fair trial within a reasonable time…” The issue of judicial proceedings and trials is a central area for discussion when assessing claims that the prisoner’s Human Rights have been violated.  In this context Article 5.3 of The International Covenant on Civil and Political Right is particularly interesting. It states:

Article 5.3: When deprivation of life constitutes the crime of genocide, it is understood that nothing in this article shall authorise, any State Party to the Present Covenant, to derogate in any way from any obligation assumed under the provisions of the Convention on the Prevention and Punishment of the Crime of Genocide.    

Article 5.3 makes clear there are no circumstances under which it would be acceptable to call for capital punishment of the prisoners, even if they are accused of terrorism or genocide.

Article 9.2: Anyone who is arrested shall be informed, at the time of arrest, of the reason for his arrest and shall be promptly informed of any charges made against him. Article 9.3: Anyone arrested or detained on a criminal charge shall be brought promptly before a judge, or other office authorised by law to exercise judicial power, and shall be entitled to trial within a reasonable time. Article 9.4: Anyone who is deprived of his liberty by arrest or detention shall be entitled to proceedings in court, in order that court may decide without delay on the lawfulness of his detention, and order his release if the detention is not lawful.

The essence of Article 9 authorises the state to grant POW status, and only a competent tribunal may adjudicate any doubtful questions about their status, such an important decision about their legal status and judicial safeguards should be determined by an impartial and independent court. The decision about their future should not be left to one person.

International Humanitarian Law

The League of the Red Cross Societies was founded in the 1919. Its first matters of concern were the conditions of the sick and wounded in the field of war and the treatment, and exchange of POWs. Nowadays, the valuable work of the International Committee of the Red Cross (ICRC) does not only benefit the members of the armed forces, but has also been extended to concern whole sectors of the population where people have been threatened by the methods of warfare. With the disturbing levels of suffering and cruelty caused by the Second World War, International Humanitarian Law was revised by the League of Red Cross Societies and the ICRC resulting in the four Geneva Convention of 1949. The First Geneva Convention relates to the amelioration of the condition of the sick and wounded in the field. The Second concerns the amelioration of the condition of the wounded, sick and shipwrecked members of the armed forces at sea. The Third Convention gives provisions to the detention and treatment of POWs. The Forth, offers protection to civilian population in time of war. The provisions laid down in the latter two Conventions will provide grounds for debate on the rights of detainees held at Guantanamo Bay.

The Third Geneva Convention emerged from the Hague Regulations of 1899 and 1907, and is an amended version of the Prisoner-of-War Convention 1929. It has 143 Articles of which 97, relate to the treatment of POWs during detention (as compared to 66 Articles of the 1929 Convention and only 11 in the Hague Regulations). The Articles are very detailed advising on matters such as, internment facilities, medical treatment, hygiene, religious activities, transfer of prisoners and matters of penal and disciplinary sanctions. As time has progressed, the charter of armed conflict has altered and amendments have been made to the Conventions. The conditions for granting a detainee the status of POW have been enlarged and more inclusive, leaving a thin and blurred borderline between POW and an Unlawful Combatant. Nowadays people of unoccupied territory, who spontaneously take up arms and partisan movements, are considered to be eligible to protection under the Third Geneva Convention and to be treated as POWs. Furthermore, in 1968 the International Conference on Human Rights held in Tehran, passed a resolution according to belligerent’s rights to persons struggling against racist or colonial regimes, which was implemented in 1977 by the General Assembly of the United Nations. This means that National Liberation Movements can now be perceived as having, properly constituted authority.

It seems that the underlying principle of the Geneva Conventions is that decent and humane treatment is an immediate right given to members of the armed forces, captured by the enemy in an armed conflict. What is debatable concerning the detainees held a Guantanamo Bay is not whether they are entitled to protection under International Law, but what Regulations the detaining power has set aside to determine their arrest and detention lawful. The focal point of discussion is the nature of the conflict; the status of the prisoners and what remedies (safeguards) are available to them.