Geneva Convention Article V and Enemy Combatants

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Geneva ConventionArticle V and Enemy Combatants

• Gabby Lawrence
• Mark Richardson

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Overview

• Issues to Consider
• Law of War
• Historical Background of Tribunals
• Geneva Convention
• Status of Tribunals Today
• The Future of Tribunals

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Issues to Consider

• Does it matter how we treat alleged (or
  confirmed) terrorists?
• How do we (Americans) want to treat captured
  personnel?
• What perception will our actions carry globally
  and do we care?
• How do we want captured Americans treated?

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Why have laws of war?

• Principles behind laws of war
• Goals of laws of war

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Development

• Pre-19th Century
• Henri Durant
• 20th Century

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Battle of Solferino

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Geneva Convention

• Structure
• Signatories
• ICRC

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Red Cross
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Article V Hearings

• Tribunals, Commissions, Courts-martial
• UCMJ Article 36
• Where did they come from and how has America used
  them?

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Article V

• The present Convention shall apply to the persons
  referred to in Article 4 from the time they fall
  into the power of the enemy and until their final
  release and repatriation.Should any doubt arise
  as to whether persons, having committed a
  belligerent act and having fallen into the hands
  of the enemy, belong to any of the categories
  enumerated in Article 4, such persons shall enjoy
  the protection of the present Convention until
  such time as their status has been determined by
  a competent tribunal.

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American Revolution

• Benedict Arnold and Major Andre

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War of 1812

• Abuse by General Jackson?

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Mexican-American War
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Civil War
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World War I
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World War II
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Vietnam
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Persian Gulf
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US Army Field Manual 27-10

• Incorporates International Law

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Army Regulation 190-8

• Governed Article V Hearings until September 11,
  2001

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Military Order - November 2001

• Authorized Secretary of Defense to detain
  al-Qaeda operatives and try them by military
  commission

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War in Iraq

• Congress passes AUMF in 2002 authorizing the war
  in Iraq

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Enemy Combatants

• Used by President Bush in speeches, but remained
  undefined until December 2002

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Hamdi v. Rumsfeld and Rasul v. Bush (2004)

• Due process rights granted to enemy combatants
  detained under military detention order

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Combat Status Review Tribunals

• Government response to Hamdi v. Rumsfeld (2004)
• Modeled after AR 190-8

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Detainee Treatment Act of 2005

• Denied habeas corpus to detainees at Guantanamo
  Bay

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Hamdan v. Rumsfeld (2006)

• Habeas corpus rights restored after DTA

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Military Commissions Act

• First time unlawful enemy combatant was used
• Habeas corpus revoked again

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Al-Marri v. Wright (2007)

• Reinstated federal courts power to grant habeas
  corpus to detainees after MCA

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Where are we now?

• Boumediene v. Bush
• Al-Odah v. United States