Competent tribunal
Encyclopedia
Competent Tribunal is a term used Article 5 paragraph 2 of the Third Geneva Convention
, which states:
(ICRC) commentary on Article 5 of the Third Geneva Convention says on the issue of competent tribunal that:
Possible determinations are:
, some detainees initially categorized as POWs were found to be innocent civilians who had surrendered to receive free food and lodging. 1,196 tribunals were convened, of which 310 individuals were granted POW status. The remaining 886 detainees "were determined to be displaced civilians and were treated as refugees. No civilian was found to have acted as an unlawful combatant."
announced that the United States
would follow the Geneva Conventions as it was strictly interpreted, and that the war in Afghanistan
did not fall within that purview.
As such, President Bush stated that fighters captured in the war in Afghanistan would be treated as "unlawful combatant
s".
Critics claimed that signatories to the Geneva Conventions, like the United States, are obliged to treat all captured combatants as if they qualified for POW status, until a "competent tribunal" considers their case and determines that they don't qualify for POW status.
The Supreme Court set aside this question in the case Hamdan v. Rumsfeld
. Although it ruled against the Bush administration on the legality of the Guantanamo military commission
s, it also determined that these detainees were due the rights accorded under the more limited Common Article 3. It reserved judgement on Article 5 with its competent tribunals.
ruling the Bush administration began using Combatant Status Review Tribunal
s to determine the status of detainees.
The Bush administration tried to keep secret the identity of all the Guantanamo detainees. But some detainees' identities leaked out. Sympathetic lawyers secured permission from those detainees' families, and mounted legal challenges to try to secure their human rights. The Bush administration lost, and was forced to institute Combatant Status Review Tribunal.
The reviews determined only 38 detainees were not illegal combatants. Then, through some kind of mix-up, Murat Kurnaz
's dossier was accidentally declassified.
Critics examined its contents. It was hundreds of pages long. All but one of the documents in Kurnaz's dossier established his innocence—established that there was no reason to believe he had any association with terrorism. The lone exception was unsigned, and contained only a vague accusation. This lone memo did not supply any evidence to back up its accusation that Kurnaz was acquainted with a suicide bomber—and the memo didn't even get that suicide bomber's name correctly.
Critics argued that since a single vague accusation had been enough to keep a detainee imprisoned, if one assumed his case was typical, it was reasonable to believe that many other detainees the reviews determined were illegal combatants may have been just as questionable.
Further, the Seton Hall studies conducted by lawyers for detainees found that 92% of detainees in Guantanamo Bay were not "al-Qaeda fighters" and they argue that the CSRT's were severely biased against suspects in favour of determining them unlawful combatant
s. The study itself reveals that those 92% who are not "al-Qaeda fighters" were deemed to be either other al-Qaeda members or Taliban or members of other affiliated hostile groups.
For this, and other reasons, opponents argued that the Combatant Status Review Tribunals do not constitute a competent tribunal as mandated by the Geneva Convention. The Supreme Court ruled in Hamdan v. Rumsfeld that this was irrelevant, but it also ruled that the CSRT was not legal without congressional authorization. In response the Military Commissions Act
was adopted.
Third Geneva Convention
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. It was first adopted in 1929, but was significantly updated in 1949...
, which states:
ICRC commentary on competent tribunals
The International Committee of the Red CrossInternational Committee of the Red Cross
The International Committee of the Red Cross is a private humanitarian institution based in Geneva, Switzerland. States parties to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005, have given the ICRC a mandate to protect the victims of international and...
(ICRC) commentary on Article 5 of the Third Geneva Convention says on the issue of competent tribunal that:
United States
Under U.S. military regulations, a Tribunal would be composed of:- Three commissioned officers; a written record of proceedings; proceedings shall be open with certain exceptions; persons whose status is to be determined shall be advised of their rights at the beginning of their hearings, allowed to attend all open sessions, allowed to call witnesses if reasonably available, and to question those witnesses called by the Tribunal, and to have a right to testify; and a tribunal shall determine status by a preponderance of evidence.
Possible determinations are:
- Enemy Prisoner of War.
- Recommended Retained Personnel (RP), entitled to EPW protections, who should be considered for certification as a medical, religious, or volunteer aid society RP.
- Innocent civilian who should be immediately returned to his home or released.
- Civilian Internee who for reasons of operational security, or probable cause incident to criminal investigation, should be detained.
"Competent tribunals" during the 1991 Gulf War
During the 1991 Gulf WarGulf War
The Persian Gulf War , commonly referred to as simply the Gulf War, was a war waged by a U.N.-authorized coalition force from 34 nations led by the United States, against Iraq in response to Iraq's invasion and annexation of Kuwait.The war is also known under other names, such as the First Gulf...
, some detainees initially categorized as POWs were found to be innocent civilians who had surrendered to receive free food and lodging. 1,196 tribunals were convened, of which 310 individuals were granted POW status. The remaining 886 detainees "were determined to be displaced civilians and were treated as refugees. No civilian was found to have acted as an unlawful combatant."
"Competent tribunals" in the context of the detainees held at Guantanamo Bay
This term began to receive a lot of attention when President George W. BushGeorge W. Bush
George Walker Bush is an American politician who served as the 43rd President of the United States, from 2001 to 2009. Before that, he was the 46th Governor of Texas, having served from 1995 to 2000....
announced that the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
would follow the Geneva Conventions as it was strictly interpreted, and that the war in Afghanistan
War in Afghanistan (2001–present)
The War in Afghanistan began on October 7, 2001, as the armed forces of the United States of America, the United Kingdom, Australia, and the Afghan United Front launched Operation Enduring Freedom...
did not fall within that purview.
As such, President Bush stated that fighters captured in the war in Afghanistan would be treated as "unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
s".
Critics claimed that signatories to the Geneva Conventions, like the United States, are obliged to treat all captured combatants as if they qualified for POW status, until a "competent tribunal" considers their case and determines that they don't qualify for POW status.
The Supreme Court set aside this question in the case Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
. Although it ruled against the Bush administration on the legality of the Guantanamo military commission
Guantanamo military commission
The Guantanamo military commissions are military tribunals created by the Military Commissions Act of 2006 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.- History :...
s, it also determined that these detainees were due the rights accorded under the more limited Common Article 3. It reserved judgement on Article 5 with its competent tribunals.
Combatant Status Review Tribunal as competent tribunals
Following the 2004 Hamdi v. RumsfeldHamdi v. Rumsfeld
Hamdi v. Rumsfeld, 542 U.S. 507 was a U.S. Supreme Court decision reversing the dismissal of a habeas corpus petition brought on behalf of Yaser Esam Hamdi, a U.S. citizen being detained indefinitely as an "illegal enemy combatant." The Court recognized the power of the government to detain enemy...
ruling the Bush administration began using Combatant Status Review Tribunal
Combatant Status Review Tribunal
The Combatant Status Review Tribunals were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense...
s to determine the status of detainees.
The Bush administration tried to keep secret the identity of all the Guantanamo detainees. But some detainees' identities leaked out. Sympathetic lawyers secured permission from those detainees' families, and mounted legal challenges to try to secure their human rights. The Bush administration lost, and was forced to institute Combatant Status Review Tribunal.
The reviews determined only 38 detainees were not illegal combatants. Then, through some kind of mix-up, Murat Kurnaz
Murat Kurnaz
On March 3, 2006, in response to a court order from Jed Rakoff the Department of Defense published a Summarized transcripts from his Combatant Status Review Tribunal.The tribunal that examined the case against Kurnaz lasted for forty minutes....
's dossier was accidentally declassified.
Critics examined its contents. It was hundreds of pages long. All but one of the documents in Kurnaz's dossier established his innocence—established that there was no reason to believe he had any association with terrorism. The lone exception was unsigned, and contained only a vague accusation. This lone memo did not supply any evidence to back up its accusation that Kurnaz was acquainted with a suicide bomber—and the memo didn't even get that suicide bomber's name correctly.
Critics argued that since a single vague accusation had been enough to keep a detainee imprisoned, if one assumed his case was typical, it was reasonable to believe that many other detainees the reviews determined were illegal combatants may have been just as questionable.
Further, the Seton Hall studies conducted by lawyers for detainees found that 92% of detainees in Guantanamo Bay were not "al-Qaeda fighters" and they argue that the CSRT's were severely biased against suspects in favour of determining them unlawful combatant
Unlawful combatant
An unlawful combatant or unprivileged combatant/belligerent is a civilian who directly engages in armed conflict in violation of the laws of war. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action.The Geneva Conventions apply in wars...
s. The study itself reveals that those 92% who are not "al-Qaeda fighters" were deemed to be either other al-Qaeda members or Taliban or members of other affiliated hostile groups.
For this, and other reasons, opponents argued that the Combatant Status Review Tribunals do not constitute a competent tribunal as mandated by the Geneva Convention. The Supreme Court ruled in Hamdan v. Rumsfeld that this was irrelevant, but it also ruled that the CSRT was not legal without congressional authorization. In response the Military Commissions Act
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
was adopted.
See also
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Geneva ConventionsGeneva ConventionsThe Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
- Jus in bello
- UN Charter
- Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other DetaineesMilitary Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees is the full title of a United States Army regulation usually referred to as AR 190-8, that lays out how the United States Army should treat captives....