Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Harshit Rai
Harshit Rai is a student at the Symbiosis Law School, Pune.
Much has changed since the adoption of the Geneva Conventions of 1949. War, once a primary means of resolving foreign policy conflicts, was expressly outlawed under Article 2 (4) of the UN Charter. Additionally, the nature of wars has undergone significant change. Modern wars do not resemble traditional inter-state conflict but internal warfare, intra-state conflicts, civil wars and newer threats such as terrorism.
These conflicts are referred to as non-international armed conflicts and are covered under Common Article 3 of the Geneva Convention, which guarantees a minimum yardstick of protection to combatants and prohibits their inhuman and degrading treatment. However, the treaty law which applies to non-international conflicts is not as extensive as that for state-to-state conflicts. 
The issue of protecting unlawful combatants gained prominence with the global change of events after 9/11. In the backdrop of the Global War on Terrorism, detention facilities were established by the US government to house persons alleged to have engaged in terrorist activities. These centers were infamous for their “enhanced interrogation techniques.” This included the detention centers at Guantanamo Bay and Abu Ghraib, which came to the limelight with the release of photographs showing guards at the camps brutally abusing the detainees. 
Despite their status as unlawful combatants, detainees are protected under International Human Rights Law and the minimum guarantee of Humanitarian Law. This is reflected from the decisions of the International Court of Justice and even the US Supreme Court.
The primary argument for depriving detainees of the legal protections guaranteed by International Humanitarian Law is that detainees are unlawful combatants not covered under the Geneva Convention system.  On the one hand, a lawful combatant has a mandate to participate in the war. This includes rightly participating in armed hostilities from a combatant side, injuring enemies and destroying enemy targets. Though these acts by the combatants would ordinarily be crimes during peacetime, they are not to be prosecuted for the acts undertaken during the war; they can only be prosecuted for violations of International Humanitarian Law.
On the other hand, though no universally accepted definition is available for unlawful combatants, the term denotes all people who directly take part in the hostilities without being legally entitled to do so.
This issue raises several important questions. If International Humanitarian Law offers no protection to these detainees, are they rendered defenseless? Is there no law that protects their rights? Does the rule of generalia specialibus non derogant (specific law overrides general law) dictate that since only International Humanitarian Law is applicable in cases of an armed conflict it displaces the general protection of Human Rights Law? If that is true, does it also displace the universal guarantee of free trial and prohibition of torture provided in the International Human rights Law? It is with this context that we must examine the current status of Combatants in Non-International Armed Conflicts.
The argument that humanitarian displaces human rights law in peacetime has been advanced by a few nation states, including USA. The International Court of Justice, however, has clarified this position of conflict, opining that the protection offered by Human Rights conventions such as the International Covenant on Civil and Political Rights, International Covenant on Economic, Social and Cultural rights and the Convention on the Rights of Child does not cease in case of armed conflict. 
Though it has been argued that since terrorists detained at Abu Ghraib or Guantanamo bay are unlawful combatants, and are not protected by the four Geneva conventions which deal with lawful combatants, prisoners of war or civilians, it is thus clear that their detention without fair trial coupled with inhuman torture is still contrary to International Human Rights Law.
Moreover, with regard to the application of humanitarian law to non-international conflicts, the Common Article III and Additional Protocol II does not foresee a combatant’s privilege (i.e. the right to participate in hostilities and impunity for lawful acts of hostility). Combatants, once captured or detained ceasing to take part in hostilities come under the relevant provisions of international humanitarian law , as well as the relevant customary international law.
In Hamdan v. Rumsfeld, the United States Supreme Court invalidated the President’s military commissions as they violated the fair trial provisions under Common Article 3 and they did not constitute a, ‘regularly constituted court’. The Court held that Common Article 3 did apply to an alleged member of Al Qaeda captured in Afghanistan and detained at Guantanamo, and to other detainees in armed conflicts involving non-state parties.
Guantanamo Bay stands today as a gaping black hole in the face of human rights and humanitarian law. Obama’s failure to close Guantanamo, after having vowed to do so, was one of the sharper disappointments of his administration. Instead of closing the facility, the present administration plans to keep Guantanamo open "as a critical tool in the fight against international radical Islamist groups," and intends to suspend any further transfers out of Guantanamo pending a review of whether they are in the national security interests of the US 
It is thus untenable that humanitarian law excludes the protection of unlawful combatants or displaces the universal guarantee of human rights as it applies regardless of former combatant status. Likewise, it is important to have consensus on the fact that the United States is at war with Al Qaeda and other such outfits, which will enable the regulation of the conflict in a more rights protected regime. As a party to the conflict, the US would thus be bound to give effect to the protection entitled to the detainees. 
1. ICRC, “Customary IHL Database”accessed- November 18th 2017 https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_in_puofthst,”
2. “Iraq Prison Abuse Scandal Fast Facts”accessed-November 5th 2017 http://edition.cnn.com/2013/10/30/world/meast/iraq-prison-abuse-scandal-fast-facts/index.html
3. Steiner, Alston, Goodman, International Human Rights in Context 3rd edition New York: Oxford University Publication, 2007
4. Ibid also see, “ICJ 2004 opinion concerning Israel’s construction of a physical barrier in occupied Palestinian territory” accessed-November 4th 2017 https://unispal.un.org/DPA/DPR/unispal.nsf/0/B59ECB7F4C73BDBC85256EEB004F6D20
5. Article 3, common to the four Geneva Conventions, and Additional Protocol II, in particular Articles 4-6.
6. Associated Press, “What's next for Guantanamo Bay under President Trump” accessed- November 5th 2017 http://www.foxnews.com/world/2017/01/27/what-next-for-guantanamo-bay-under-president-trump.html
7. Helen Duffy “The War on Terror and the Framework of International Law” 2nd Edition New York: Cambridge University Press, 2005
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