Treatment of "Battlefield Detainees" in the War on Terrorism

After earlier criticism from human rights organizations and many foreign governments regarding the determination that the Geneva Conventions of 1949 do not apply to the detainees held in Cuba, President Bush shifted position with an announcement that Taliban fighters are covered by the 1949 Geneva Conventions, while Al Qaeda fighters are not. Taliban fighters are not being treated as prisoners of war (POW), however, because they reportedly fail to meet international standards as lawful combatants The Bush Administration has deemed all of the detainees to be "unlawful combatants," who may, according to Administration officials, be held indefinitely without trial or even despite their eventual acquittal by a military tribunal. Six of the Detainees have been designated as subject to the President's Military Order of Nov. 13, 2001, making them eligible for trial by military commission, although none has yet been charged. While earlier reports that the detainees were being treated inhumanely appear to be unfounded, some allied countries and human rights organizations are criticizing the President's decision as relying on an inaccurate interpretation of the Geneva Convention for the Treatment of Prisoners of War (GPW). The U.N. High Commissioner on Human Rights (UNHCR) and some human rights organizations argue that all combatants captured on the battlefield are entitled to be treated as POWs until an independent tribunal has determined otherwise. The Geneva Conventions of 1949 create a comprehensive legal regime for the treatment of detainees in an armed conflict. Members of a regular armed force and certain others, including militias and volunteer corps serving as part of the armed forces, are entitled to specific privileges as POWs. Members of volunteer corps, militias, and organized resistence forces that are not part of the armed services of a party to the conflict are entitled to POW status if they meet four criteria specified in the treaty. Groups that do not meet the standards are not entitled to POW status, and their members who commit belligerent acts may be treated as civilians under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Ge. These "unprivileged" or "unlawful combatants" are not accorded immunity for their hostile acts. This report provides an overview of the law of war and the historical treatment of wartime detainees, in particular the United States' practice for determining their status, and describes how the detainees' status might affect their rights and treatment. The report also reviews the current status of petitions for habeas corpus filed on behalf of detainees held at Guantanamo Bay Naval Station. The report concludes with a discussion of Congress' role and legislative proposals related to detention in connection with the war against terrorism, including H.R. 1290, H.R. 1029 and title I, subtitle C of S. 22.