Lawyers Committee for Human Rights urges United States to refrain from transferring war captives outside Iraq

Geneva Conventions prohibit transfer and set trial requirements
The Lawyers Committee for Human Rights welcomes assurances by the United States that it intends to comply with Article 5 of the Third Geneva Convention by treating all belligerents captured in Iraq as prisoners of war (POWs) unless and until a competent tribunal determines that they are not entitled to POW status. We are concerned, however, about reports indicating that the United States is considering transferring to Guantanamo those deemed not entitled to POW status by the Article 5 tribunals. Such transfers would constitute a grave breach of the Fourth Geneva Convention, which prohibits forcible transfers of such persons to places outside occupied territory.

Persons protected by the Fourth Geneva Convention cannot be transferred to Guantanamo or anywhere else outside Iraq, because the Convention contains an absolute ban on forcible transfers:

Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country, occupied or not, are prohibited, regardless of motive. [Fourth Geneva Convention on the protection of civilians, article 49.]

Protection under the Fourth Geneva Convention is afforded to persons found not to be POWs but who fall into the hands of a party to the conflict1. Iraqis detained by American forces but who are found not to have POW status would therefore be covered by the prohibition on transfer out of the area. The authoritative commentary by the International Committee of the Red Cross makes this clear:

Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, or again, a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can be outside the law. [ICRC Commentary, Fourth Geneva Convention, p. 51 (1958)].

Non-POWs who are covered by the prohibition on transfer out of the area would include the type of persons whom the U.S. has termed "unlawful combatants" in the war in Afghanistan. The Conventions deal specifically with members of resistance movements or other irregular forces. Article 4 of the Third Geneva Convention sets out the conditions for determining who is a POW2. It is made absolutely clear that failure to meet the conditions to be protected as a POW does not exclude members of irregular forces from protection under the Geneva Conventions. To the contrary, the ICRC Commentary to the Fourth Geneva Convention explains that such people must be protected as civilians:

If members of a resistance movement who have fallen into enemy hands do not fulfill [the conditions for POW status] they must be considered to be protected persons within the meaning of the present Convention [ICRC Commentary, Fourth Geneva Convention, p.50 (1958)].

Non-Iraqi citizens found in occupied territory in Iraq are also protected by the Fourth Geneva Convention, unless they are nationals of one of the belligerents in the conflict, or of a state that is not a party to the Geneva Conventions (see Fourth Geneva Convention, article 4). The no-transfer rule would apply, for example, to nationals of states such as Egypt, Saudi Arabia or Syria, which are not parties to the conflict.

The Lawyers Committee is also concerned by reports that the United States may be considering convening military commissions, authorized by the November 14 Military Order issued by President Bush, to try Iraqis or others captured in Iraq for violations of the crimes set out in the Pentagon's new draft rules for military commissions. The rules of procedure and the draft rules on crimes and elements do not ensure that trials conducted by these commissions would comply with fair trial standards.

Iraqi prisoners entitled to POW status -who can be tried for violations of the laws of war or crimes against humanity but not for participating in the conflict - are entitled to fair trial rights provided by the Third Geneva Convention in articles 99 through 108. Among other things, a POW "can be validly sentenced only if the sentence has been pronounced by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power." American soldiers suspected of having committed war crimes would be tried before regular courts-martial with substantial procedural protections. Likewise, POWs in U.S. custody must be tried in regular courts-martial under standard procedures.

Iraqi prisoners not entitled to POW status who are suspected of committing crimes must be tried in accordance with the due process rights and other requirements set forth in articles 64 through 77 of the Fourth Geneva Convention and in article 75 of Additional Protocol I. Such prisoners may not be removed from the occupied territory, and military commission regulations issued by the Department of Defense do not ensure the procedural rights guaranteed by these provisions. Trials before such commissions, therefore, would violate the Geneva Conventions.