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Published online by Cambridge University Press: 17 February 2009
The September 11 attacks and the ensuing military operations in Afghanistan have raised a multitude of complex and disturbing problems for the existing humanitarian normative order. Much of the legal scholarship on recent events concerning Afghanistan has focused on the issues of the legal status of captured Taliban and Al Qaeda soldiers under humanitarian law, their detention conditions at Guantánamo Bay in Cuba and the inadequacy of procedural safeguards for judicial proceedings of the proposed Military Commissions under the US Presidential Order and the Department of Defence Order. This paper takes a somewhat different approach, looking first at the legal characterisation of the armed conflicts in Afghanistan since 6/7 October 2001 and particularly the internecine hostilities that have continued since the apparent end of the war, before examining the status of combatants and that of prisoners of war. Clarification of the nature of the armed conflicts and of the scope of application of the rules on prisoners of war is essential for disentangling the legal quagmire surrounding the controversy over the legal status of both Taliban and Al Qaeda soldiers under the jus in bello.
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34. Art. 1(2) of Additional Protocol II sets the minimum threshold of its applicability, providing that it ‘shall not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts’.
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46. So far, 18 mainly western countries (Austria, Belgium, Bulgaria, Great Britain, Denmark, Finland, France, Germany, Greece, Italy, the Netherlands, New Zealand, Norway, Portugal, Romania, Spain, Sweden, Turkey, France, Italy, Germany and Britain) have provided troops.
47. See also additional authorization derived from Security Council Resolution 1413, 23 May 2002, S/RES/1413 (2002); and Resolution 1444, 27 November 2002, S/RES/1444 (2002).
48. Resolution 1386 of 20 December 2001, operative para. 1.
49. The Memorandum, which was signed by Austria, Denmark, Finland, France, Germany, Greece, Italy, New Zealand, Netherlands, Norway, Portugal, Romania, Spain, Sweden, Turkey and the UK, formally initiated Operation Fingal: available at <http://www.operations.mod.uk/fingal/index.htm>.
50. See Security Council Resolution 678, 29 November 1990, S/RES/678 (1990).
51. The first such authorization was granted by Resolution 770 (1992).
52. For examinations of multinational forces, see Gray, op. cit. n. 66, at p. 187.
53. Resolution 929 of 22 June 1994, S/RES/929 (1994).
54. Resolution 940 of 31 July 1994, S/RES/940 (1994).
55. Resolution 1101 of 28 March 1997, S/RES/1101, operative para. 4 (compare reference to multinational forces for non-enforcement purposes under operative para. 2).
56. Resolution 1125 authorized member states, which contributed to the MISAB, the Inter-African Mission to Monitor the Implementation of the Bangui Agreements, (established in January 1997) to use force for secure the security of their personnel: Resolution 1125 of 6 August 1997, S/RES/1125 (1997).
57. Resolution 1244 was passed under Chapter VII, authorizing member states and relevant international organisations to create KFOR, to which NATO contributed.
58. Resolution 1264, adopted under Chapter VII, authorised the creation of a multinational force under a unified command structure assumed by Australia, INTERFET.
59. See the deployment of the Interim Emergency Multinational Force (IEMF) in Bunia, Congo in close coordination with the UN peacekeeping force, the MONUC: Resolution 1484 of 30 May 2003, S/RES/1484 (2003), operative, para. 1.
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78. Commentary, GCIII, ibid., at p. 61.
79. Oppenheim, op. cit. n. 76 at p. 257, n. 3; Levie, op. cit. n. 71, at p. 50. See also Military Prosecutor v. Kassem, supra n. 76, at pp. 478–79.
80. Commentary, GCIII, op. cit. n. 72, at p. 61.
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85. Rosas, op. cit. n. 81, at p. 337.
86. Levie, op. cit. n. 71, at pp. 52–53; and Rosas, ibid., at pp. 361 and 363. Neuman's position is close to such view, though he emphasizes the need to examine the structure of the group and the degree to which an individual member has participated in serious violations of humanitarian law: Neuman, op. cit. n. 84, at p. 294.
87. Case concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. US), Judgment of 27 June 1986, ICJ Rep. (1986) pp. 14, at 94, para. 176.
88. The possibility that the normative content of a treaty provision changes through the concurrent emergence of state practice and opinio juris, despite apparent contradiction with another treaty provision, is recognised by the European Court of Human Rights in Öcalan v. Turkey (the recognition that capital punishment may be considered as ‘inhuman and degrading treatment’ in breach of Art. 3, notwithstanding Art. 2 of the European Convention on Human Rights): Judgment of 12 March 2003, para. 198.
89. Aldrich, loc. cit. n. 4, at p. 894 and Matheson, loc. cit. n. 5, at p. 355. Rowe seems to follow this reasoning, stating that since the Taliban fighters belonged to the armed forces of a party to the conflict, i.e., Afghanistan, they ‘are likely to be prisoners of war’, without referring to the four conditions under Article 4A(2) of the Third Geneva Convention: Rowe, loc. cit. n. 4, at p. 317.
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91. For instance, Art. 3 of the Oxford Manual provides that ‘[e]very belligerent armed force is bound to conform to the laws of war.’
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96. Rosas, loc. cit. n. 81, at pp. 328, and 371–372. See also pp. 340–341, 348–349, 354, 358, 363 and 367.
97. The second sentence of Art. 44(3) reads that: ‘Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly: (a) during each military engagement; and (b) during such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate. Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1(c).’
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102. Commentary, Protocol I, op. cit. n. 98, at p. 538, para. 1719.
103. Dinstein, loc. cit. n. 90, at pp. 105 and 111 and Provost, op. cit. n. 28, at p. 37.
104. This was also the position of the United Kingdom delegation during the Working Group's discussions at the Geneva Diplomatic Conference. According to the delegation, ‘[a]ny combatant who violated the rules in paragraph 3 …lost his combatant status and was therefore to be treated as a person who did not have the right to engage in armed conflict even though he would be accorded rights equivalent to those contained in the third Geneva Convention of 1949.’ Official Records, op. cit. n. 98, Vol. XV, p. 157, para. 14.
105. Official Records, ibid., Vol. VI, p. 148; and Commentary, Protocol I, supra n. 98, at p. 539, fn. 82.
106. Art. 44(4), first sentence.
107. Art. 44(4), second sentence.
108. Baxter, R.R., ‘So-called “Unprivileged Belligerency”: Spies, Guerrillas and Saboteurs’, 28 BYIL (1951) p. 323Google Scholar. See also Klabbers, J., ‘Rebel with a Cause? Terrorists and Humanitarian Law’, 14 EJIL (2003) p. 299CrossRefGoogle Scholar.
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111. US Navy, Commander's Handbook of the Law of Naval Operations, NWP 1–14M, Department of the Navy, 1995, available at <http://www.nwc.navy.mil/ILD/NWP%201-14M.htm>, para. 12.7.1.
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114. Many jurists use the expression, ‘unlawful combatants’. See, for instance, Dinstein, loc. cit. n. 90; and Knut Ipsen, ‘Combatants and Non-Combatants’, in Fleck, op. cit. n. 90, Ch. 3.
115. Baxter, loc. cit. n. 108, at p. 343.
116. Aldrich, loc. cit. n. 4, at p. 893.
117. Greenwood, C.J., ‘Customary Law Status of the 1977 Geneva Protocols’, in Delissen, A.J.M. and Tanja, G.J., eds., Humanitarian Law of Armed Conflict: Challenges Ahead: Essays in Honour of Frits Kalshoven, (Dordrecht, Martinus Nijhoff 1991) pp. 93 at p. 103Google Scholar. The US government has also considered Art. 75 as part of the customary rules embodied in Protocol I: US Army, Operational Law Handbook (1997), op. cit. n. 109, p. 18–2; and US Army, Operational Law Handbook (2002), op. cit. n. 110, Ch. 2, p. 5.
118. Dinstein, op. cit. n. 90, at p. 111.
119. Aldrich, loc. cit. n. 4, at p. 893; Dinstein, ibid., and Draper, G.I.A.D., The Red Cross Convention, (London, Stevens 1958) at p. 52Google Scholar. See also US Army Field Manual, supra n. 84, para. 73, ‘Persons Committing Hostile Acts Not Entitled To Be Treated as Prisoners of War’.
120. Ex parte Quirin, 317 US 31.
121. Aldrich, loc. cit. n. 4, at pp. 893–894. Yet, Aldrich states that Al Qaeda personnel ‘were combatants in hostilities and are not entitled to POW status’, suggesting that they are at least entitled to the right to be combatant: ibid., at p. 893.
122. Baxter argues that: ‘Since these qualities [disregard for and deliberate non-observance of the qualifications to be recognized as a prisoner of war] are those which most conspicuously inhere in espionage, resistance activities in occupied areas, guerrilla warfare, and private hostilities in arms, they afford grounds for believing that all these acts of warfare, whether or not involving the use of arms and whether performed by military persons or by civilians, are governed by a single legal principle.’ Baxter, loc. cit. n. 108, at p. 342. Baxter applies the same reasoning to simple evaders, escaped prisoners of war captured or recaptured in civilian clothes, as well as military personnel captured while wearing civilian clothes under their uniforms: ibid., at pp. 340–341.
123. Ibid., at p. 340. In another context, Baxter states that ‘[t]he judicial determination which is necessary before a person may be treated as an unprivileged belligerent is … not a determination of guilt but of status only and, for the purposes of international law, it is sufficient to ascertain whether the conduct of the individual has been such as to deny him the status of the prisoner or of the peaceful civilian.’ Ibid., at pp. 343–344.
124. Ibid., at p. 340.
125. Ibid., at p. 344.
126. Ibid. Art. 68 of the Fourth Geneva Convention forbids the application of capital punishment.
127. See Annex A, ‘Criteria for Classification and Disposition of Detainees’, part of Directive no. 381–46 of 27 December 1967; and Directive no. 20–5 of 15 March 1968, ‘Inspections and Investigations: Prisoners of War — Determination of Eligibility’; both reprinted in Bevans, C., ‘Contemporary Practice of the United States Relating to International Law’, 62 AJIL (1968) pp. 754 at 765Google Scholar.
128. Gasser, loc. cit. n. 4, at p. 567.
129. Bevans, loc. cit. n. 127, at p. 767.
130. Gasser, loc. cit. n. 4, at p. 567.
131. Those found outside the status of lawful combatants and POWs were to be transferred to the South Vietnamese authorities. Ibid.
132. While acknowledging the obsolete nature of the term, ‘belligerency’, Hoffman describes terrorists as ‘unlawful belligerents’, who do not entertain the right to partake in armed hostilities, but perpetrate indiscriminate attack in peacetime (for certain political goals). The ‘unlawful belligerents’ would be distinguished from ‘unlawful combatants’, such as saboteurs, guerrillas and spies, who have such a license and direct attack normally against lawful military objectives, though by deceptive or treacherous means and methods: Hoffman, loc. cit. n. 4, at p. 229.
133. Baxter, loc. cit. n. 108, at pp. 342–343.
134. See for instance, US Army Field Manual, supra, n. 84, <http://www.adtdl.army.mil>, para. 79.
135. Oppenheim, op. cit. n. 76, at p. 268.
136. Oie Hee Koi v. Public Prosecutor and connected appeals, Judicial Committee of the Privy Council, 4 12 1967, (1968) 9 British International Law Cases (BILC) pp. 250–254Google Scholar, and [1968] AC 829.
137. Baxter, R.R., ‘The Privy Council on the Qualifications of Belligerents’, 63 AJIL (1969) pp. 290 at 290–294CrossRefGoogle Scholar. See also Wilhelm, R.-J., ‘Peut-on modifier le statut des prisonniers de guerre?’, 35 RICR (1953) pp. 681, 684 and 686Google Scholar.
138. Elman, S., ‘Prisoners of War under the Geneva Convention’, 18 ICLQ (1969) pp. 178 at 180–185CrossRefGoogle Scholar.
139. Elman refers to the state practice of the United Kingdom during the Boer War, in which the Irish prisoners who had taken the oath of allegiance to the South African Republic were treated as prisoners of war. Ibid., at pp. 181–182.
140. Ex parte Quirin (US Supreme Court, 1942), 37 AJIL (1943) p. 152Google Scholar. See also Colepaugh v. Looney (US Court of Appeals, Tenth Circuit, 1956), 23 ILR (1956) pp. 759–762Google Scholar.
141. Re Territo (US Court of Appeals, Ninth Circuit, 1946), (1946) 156 US FedR. (2d) 142.
142. Rosas, op. cit. n. 81, at pp. 385–386.
143. Ibid., at p. 387.
144. Prosecutor v. Tadić, Case No. IT-94–1-A, Appeals Judgment, 15 July 1999, para. 166.
145. Indeed in the Oie Hee Koi case, the counsel for the respondents made this point, arguing that ‘[i]t is not patriotism or national allegiance which predominates but political allegiance’: Oie Hee Koi case, supra n. 136, 9 BILC, p. 242.
146. Even such nationals can benefit from basic guarantees equivalent to POWs under Art. 44(4), as well as Art. 75 of Protocol I.
147. See inter alia, Yamashita Trial, the judgment of 4 February 1946 of the United State Supreme Court: Law Reports of Trials of War Criminals, Vol. 4, p. 1, (with one judge dissenting); and Rauter case, 12 January 1949, the Netherlands Special Court of Appeal, ibid., Vol. 14, p. 116.
148. The Final Record of the Diplomatic Conference of Geneva of 1949, Vol. II-A, pp. 570–571; and Commentary, GCIII, op. cit. n. 72, at p. 416.
149. Ibid., at p. 414.
150. Provost, op. cit. n. 28, at pp. 30–31.
151. Commentary, GCIII, op. cit. n. 72, at p. 423; and Ipsen, loc. cit. n. 114, at p. 94. Note that Art. 75(7)(b) of Protocol I provides such judicial guarantees for non-combatants accused of war crimes and crimes against humanity.
152. Dinstein, op. cit. n. 90, at p. 114. Note that in the Kappler case, the Supreme Military Tribunal in Italy ruled out the benefit of Art. 85 in relation to war criminals: Kappler Case, Supreme Military Tribunal, Italy, (1952), 49 AJIL (1955) pp. 96 at 97.
153. Commentary, GCIII, op. cit. n. 72, at p. 422.
154. Commentary, Protocol I, op. cit. n. 98, at pp. 887–889, paras. 3131–3143.
155. Rosas, op. cit. n. 81, at p. 312.
156. Frulli, M., ‘Are Crimes Against Humanity More Serious Than War Crimes?’, 12 EJIL (2001) pp. 329 at p. 344CrossRefGoogle Scholar. Contrast, however, Prosecutor v. Kambanda (Case No. ICTR 97–23-S, Judgment and Sentence, 4 September 1998, para. 14) in which crimes against humanity were recognised as more serious than violations of Art. 3 common to the four Geneva Conventions 1949, with Prosecutor v. Tadić (Case No. IT-94–1, Judgment in Sentencing Appeals, 26 January 2000, paras. 65–69), where the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia refused to distinguish between them in terms of seriousness.
157. Commentary, GCIII, op. cit. n. 72, at pp. 415–416.
158. According to the ICRC's Commentary on Protocol II, such persons include those ‘who do not, or no longer take part in hostilities and enjoy the rules of protection laid down by the Protocol for their benefit’ and who ‘must … conform to certain rules of conduct with respect to the adversary and the civilian population’: Official Records, op. cit. n. 98, Vol. VIII, p. 210; and Commentary, Protocol II, op. cit. n. 34, para. 4485.
159. While implicitly connoting the ban on reprisals against protected persons, such an ‘absolute’ and non-derogable nature of the rule embodied in Art. 4 can signify its jus cogens status: Commentary, Protocol II, ibid., para. 4530 and n. 17.
160. Commentary, Protocol II, ibid., at p. 1384, para. 4564.
161. US Army, Operational Law Handbook (1997), JA 422, op. cit. n. 109, p. 18–19; US Army, Operational Law Handbook (2002), op. cit. n. 110, Ch. 2, p. 16; and US Navy, Commander's Handbook of the Law of Naval Operations, NWP 1–14M, op. cit. n. 111, paras. 11.7 and 12.7.1.
162. Roberts, loc. cit. n. 18, at p. 23.
163. Naqvi, Y., ‘Doubtful Prisoner-of-War Status’, 84 RICR/IRRC (2002) pp. 571 at pp. 574–577Google Scholar.
164. Ibid., at p. 576
165. Army Regulation 190–8, Enemy Prisoners of War, Retained Personnel, Civilian Internees ant Other Detainees, (Washington D.C., Headquarters Departments of the Army, the Navy, the Air Force and the Marine Corps 1997)Google Scholar <http://www.usapa.army.mil/pdffiles/r190%5F8.pdf>, para. 1–6(b).
166. Public Prosecutor v. Oie Hee Koi, supra n. 134, [1968] AC 829.
167. ‘XVIth International Red Cross Conference, Draft revised or new Conventions’, p. 54, a referred to in Commentary, GCIII, op. cit. n. 72, at p. 77.
168. Final Record of the Diplomatic Conference of Geneva of 1949 (Federal Political Department Bern) Vol. II-A, p. 388; and Commentary GCIII, ibid. Note, however, that upon the determination of his/her POW status, the captured person must be tried by a military court of the detaining power: Art 84 of Geneva Convention III.
169. Commentary, Protocol I, op. cit. n. 98, at p. 551, para. 1745. See also Bothe et al., op. cit. n 163, at p. 260; and Naqvi, loc. cit. n. 163, at p. 579.
170. Naqvi, ibid., at p. 580.
171. Commentary, Protocol I, op. cit. n. 98, at p. 554, para. 1751.
172. Art. 45(1), first sentence, Additional Protocol I.
173. Art. 45(1), second sentence, Additional Protocol I.
174. Commentary, Protocol I, op. cit. n. 98, at p. 544, para. 1726.
175. Ibid., at p. 456, para. 1730. See also Naqvi, loc. cit. n. 163, at p. 576.
176. Naqvi, ibid., at p. 592.
177. Ibid., at p. 593.
178. Mundis, loc. cit. n. 5, at p. 326.
179. Official Records, op. cit. n. 98, Vol. XV p. an, CDDH/III/338; and Commentary, Protocol I, op. cit. n. 98, para. 1752.
180. Naqvi, loc. cit. n. 163, at p. 578.
181. Official Records, op. cit. n. 98, Vol. XV, p. 433, CDDH/III/338.
182. Naqvi, loc. cit. n. 163, at p. 579.
183. Official Records, op. cit. n. 98, Vol. XV, at 433, CDDH/III/338.
184. Commentary, Protocol I, op. cit. n. 98, para. 1755
185. Ibid., para. 1755.
186. Official Records, op. cit. n. 98, Vol. XV, at 433, CDDH/III/338.
187. Commentary, Protocol I, op. cit. n. 98, para. 1753.
188. Ibid., para. 1754
189. Ibid., para. 1753.
190. White House Spokesman, Ari Fleischer, Press Briefing, 28 January 2002. Available at <http://www.whitehouse.gov/news/releases/2002/01>.
191. White House Fact Sheet: Status of Detainees at Guantánamo, 7 February 2002, at <http://usinfo.state.gov/topical/pol/terror/02020700.htm> or at <http://www.state.gov/p/sa/rls/fs/7910.htm>. Reprinted in this volume at p. 662.
192. Aldrich, loc. cit. n. 4, at p. 894. See also the Tinoco Concessions Arbitration, supra n. 45, p. 369, which was grounded on the concept of effective control to meld the constitutive and declaratory effects of recognition.
193. Aldrich, ibid., at p. 895.
194. White House Fact Sheet: Status of Detainees at Guantánamo (7 February 2002), supra n. 228.
195. Ibid.
196. Wedgwood, loc. cit. n. 5, at p. 895.
197. Aldrich, loc. cit. n. 4, at p. 895.
198. Emphasis added.
199. Roberts, loc. cit. n. 18, at p. 24.
200. Aldrich, loc. cit. n. 4, at p. 895.
201. Ibid., pp. 895–896. Such an argument implies that these two states regarded the requirement of complying with humanitarian law as constitutive of the entitlement to POW qualification. It should be noted that North Vietnam, together with other former Socialist countries, formed a reservation to Art. 85 of the Third Geneva Convention to the effect that perpetrators of war crimes, if convicted, would not be entitled to POW status.
202. Rowe, loc. cit. n. 4, at p. 317.
203. Aldrich, loc. cit. n. 4, at p. 896.
204. Ibid.
205. See Shihab, S., ‘Des “talibans” ruses détenus à Guantánamo refusent d'être extradés vers Moscou’, Le Monde (14 08 2003) p. 4Google Scholar.
206. Green, L.C., The Contemporary Law of Armed Conflict, 2nd edn. (Manchester, Manchester University Press 2000) at p. 199Google Scholar.
207. Cryer, loc. cit. n. 4, at pp. 70–71.
208. Commentary, GCIII, op. cit. n. 72, at pp. 50–51.
209. All these provisions may, however, suggest that the Third Geneva Convention is based on the assumption that prisoners of war owed no allegiance to the detaining power: Rosas, loc. cit. n. 81, at p. 384.
210. The ICRC's Commentary on Protocol II is silent on whether this provision has attained the status of customary law: Commentary, Protocol II, op. cit. n. 34, paras. 4564–4596.
211. Baxter, loc. cit. n. 108, at pp. 323–45; and Levie, op. cit. n. 71, at pp. 76–84.
212. Aldrich, loc. cit. n. 4, at pp. 893 and 898.
213. See Human Rights Committee, General Comment 29, CCPR/C/21/Rev.1/Add.11, para. 11.
214. See Gasser, loc. cit. n. 4, at pp. 557 et seq.
215. See Aldrich, loc. cit. n. 4, at p. 893, fn. 12.
216. See also Art. 51(3) of Additional Protocol I (which can be described as a customary rule); and Art. 82 of the Instructions for the Government of Armies of the United States in the Field (Lieber Code).
217. Gasser, loc. cit. n. 4, at p. 568.
218. Art. 47(2) Additional Protocol I.
219. Rowe, loc. cit. n. 4 at p. 316 (though without distinction based on nationality or on the signature of the Bonn Agreement). See also the ICRC's Commentary on Geneva Convention IV, Art. 4, which states that:
‘They [nationals of a co-belligerent State] are not considered to be protected persons so long as the State whose nationals they are has normal diplomatic representation in the belligerent State or with the Occupying Power. It is assumed in this provision that the nationals of co-belligerent States, that is to say, of allies, do not need protection under the Convention.’
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220. Gasser, loc. cit. n. 4, at p. 568.
221. Commentary, GCIV, op. cit. n. 219, at p. 46.
222. Prosecutor v. Delalić, Mucić, Delić and Landžo (the Čelebići case), Case No. IT-96–21-T, Judgment, 16 November 1998 at pp. 89–99, paras. 236–266, in particular paras. 251–266.
223. Prosecutor v. Tadić, Case No. IT-94–1-A, Appeals Judgment, 15 July 1999, paras. 165–168.
224. Prosecutor v. Delalić, Mucić, Delić and Landžo (the Čelebići case), Case No. IT-96–21-A, Appeals Judgment, 20 February 2001, paras. 51–106.
225. Provost, op. cit. n. 28, at pp. 39–40.
226. See Green, op. cit. n. 206, at p. 199.
227. Aldrich, loc. cit. n. 4, at pp. 897–898.
228. US Army Field Manual, supra n. 84.
229. Ibid., para. 71(c).
230. Art. 130 of the Third Geneva Convention.
231. Aldrich, loc. cit. n. 4, at p. 898.
232. Sengupta, K., ‘Campaign Against Terrorism: American Forces “May Be Breaking POW Convention”’, The Independent (14 01 2002) at p. 9Google Scholar.
233. ICRC, ‘First ICRC visit to Guantánamo Bay prison camp’, Press Release 02/03, 18 January 2002.
234. Inter-American Commission on Human Rights, Detainees at Guantánamo Bay, Cuba, Request for Precautionary Measures (petitioned by the Center for Constitutional Rights), 41 ILM (2002) pp. 532, at 534Google Scholar. <http://www.photius.com/rogue_nations/Guantánamo.html>. See also Response of the United States to Request for Precautionary Measures — Detainees in Guantánamo Bay, Cuba (15 April 2002), 41 ILM (2002) p. 1015Google ScholarPubMed.
235. The Inter-American Commission of Human Rights, the letter dated 23 July 2002, as referred to, in R. (Abbasi) v. The Secretary of State for Foreign and Commonwealth Affairs, Court of Appeal, 6 November 2002 (2002) WL 31452052; [2002] EWCA Civ 1598, para. 21. The Abassi decision is reprinted in this volume at p. 604.
236. See for instance, Burns, J., Eaglesham, J., Huband, M. and Spiegel, P., ‘Blair may let US tribunal try UK al-Qaeda suspects’, The Financial Times (10 07 2003) p. 1Google Scholar.
237. Resolution 1340, 26 June 2003, ‘Rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay’.
238. See LaGrand Case (Germany v. United States), Judgment of 27 June 2001; and the pending case of Avena and Other Mexican Nationals (Mexico v. United States), (2001) ICJ Rep. (forthcoming).
239. See Parliamentary Assembly of the Council of Europe, Resolution 1340, 26 June 2003, ‘Rights of persons held in the custody of the United States in Afghanistan or Guantánamo Bay.’
240. Note that it is a war crime to conscript or enlist children under the age of 15 into the armed forces or employ them to actively participate in hostilities. See Arts. 8(2)(b)(xxvi) and 8(2)(e)(vii) of the Rome Statute of the International Criminal Court, which correspond to Art. 77(2) of Protocol I and Art. 4(3)(c) of Protocol II respectively. Cf., Arts 1 and 2 of the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts (2002) (the lowest age for combatants is set at 18).
241. Paras. 3–5 of Art. 77, Protocol I.
242. See Rasul et al. v. George Walker Bush et al., United States District Court, District of Columbia, 30 July 2002, 215 F.Supp.2d 55; Al Odah et al. v. United States of America et al., United States Court of Appeals, District of Columbia Circuit, 11 March 2003, 321 F.3d 1134; and Hamdi v. Donald Rumsfeld, United States Court of Appeals, Fourth Circuit, 9 July 2003, 337 F.3d 335. These judgements are reprinted in this volume at pp. 626–628 and 691–700. Note that in the Hamdi case, which awaits the decision of the Supreme Court in relation to petitions for certiorari, no question of jurisdiction arises because he is detained on US territory and claims US citizenship. See also Dyer, C., ‘Judges Condemn Camp X-Ray’, The Guardian (11 10 2003)Google Scholar.
243. Abbasi case, supra n. 272, para. 12.
244. For the procedural rules for the commissions, see US Department of Defense Military Commission Order No.1, Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War against Terrorism (2002) <http://www.defenselink.mil/news/Mar2002/d20020321ord.pdf>. Reprinted in this volume at p. 766.
245. See also common Art. 3(1)(d), which requires the State Parties to provide ‘judicial guarantees which are recognized as indispensable by civilised people’.
246. Baxter, loc. cit. n. 108, at p. 343.