Competent Tribunal is a term used in Article 5 paragraph 2 of the Third Geneva Convention, which states:
The Third Geneva Convention, relative to the treatment of prisoners of war, is one of the four treaties of the Geneva Conventions. The Geneva Convention relative to the Treatment of Prisoners of War was first adopted in 1929, but significantly revised at the 1949 conference. It defines humanitarian protections for prisoners of war. There are 196 state parties to the Convention.
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.— Third Geneva Convention Article 5, ¶ 2
The International Committee of the Red Cross (ICRC) commentary on Article 5 of the Third Geneva Convention says on the issue of competent tribunal that:
The International Committee of the Red Cross (ICRC) is a humanitarian institution based in Geneva, Switzerland, and a three-time Nobel Prize Laureate. State parties (signatories) to the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005 have given the ICRC a mandate to protect victims of international and internal armed conflicts. Such victims include war wounded, prisoners, refugees, civilians, and other non-combatants.
PARAGRAPH 2. -- PERSONS WHOSE STATUS IS IN DOUBT
This would apply to deserters, and to persons who accompany the armed forces and have lost their identity card.
The provision [was] a new one; it was inserted in the Convention at the request of the International Committee of the Red Cross. The International Committee submitted the following text, which was approved at the Stockholm Conference:
"Should any doubt arise whether any of these persons belongs to one of the categories named in the said Article, that person shall have the benefit of the present Convention until his or her status has been determined by some responsible authority" (10).
At Geneva in 1949, it was first proposed that for the sake of precision the term 'responsible authority' should be replaced by 'military tribunal' (11). This amendment was based on the view that decisions which might have the gravest consequences should Hot [sic] be left to a single person, who might often be of subordinate rank. The matter should be taken to a court, as persons taking part in the fight without the right to do so are liable to be prosecuted for murder or attempted murder, and might even be sentenced to capital punishment (12). This suggestion was not unanimously accepted, however, as it was felt that to bring a person before a military tribunal might have more serious consequences than a decision to deprive him of the benefits afforded by the Convention (13). A further amendment was therefore made to the Stockholm text stipulating that a decision regarding persons whose status was in doubt would be taken by a 'competent tribunal', and not specifically a military tribunal.
Another change was made in the text of the paragraph, as drafted at Stockholm, in order to specify that it applies to cases of doubt 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 (14). The clarification contained in Article 4 should, of course, reduce the number of doubtful cases in any future conflict.
It therefore seems to us that this provision should not be interpreted too restrictively; the reference in the Convention to 'a belligerent act' relates to the principle which motivated the person who committed it, and not merely the manner in which the act was committed.
- (10) [(1) p.77] See ' XVIIth International Red Cross Conference, Draft Revised or New Conventions, ' p. 54;
- (11) [(2) p.77] See ' Final Record of the Diplomatic Conference of Geneva of 1949, ' Vol. II-A, p. 388;
- (12) [(3) p.77] Ibid., Vol. III, p. 63, No. 95;
- (13) [(4) p.77] Ibid., Vol. II-B, p. 270;
- (14) [(5) p.77] Ibid., pp. 270-271;
Under U.S. military regulations, a Tribunal would be composed of:
Possible determinations are:
During the 1991 Gulf War, some detainees initially categorized as POWs were found to be innocent civilians who had surrendered to receive free food and lodging. 1,196 tribunals were convened, of which 310 individuals were granted POW status. The remaining 886 detainees "were determined to be displaced civilians and were treated as refugees. No civilian was found to have acted as an unlawful combatant."
The Gulf War, codenamed Operation Desert Shield for operations leading to the buildup of troops and defense of Saudi Arabia and Operation Desert Storm in its combat phase, was a war waged by coalition forces from 35 nations led by the United States against Iraq in response to Iraq's invasion and annexation of Kuwait arising from oil pricing and production disputes. The war is also known under other names, such as the Persian Gulf War, First Gulf War, Gulf War I, Kuwait War, First Iraq War or Iraq War, before the term "Iraq War" became identified instead with the 2003 Iraq War.
This term began to receive a lot of attention when President George W. Bush announced that the United States would follow the Geneva Conventions as it was strictly interpreted, and that the war in Afghanistan did not fall within that purview.As such, President Bush stated that fighters captured in the war in Afghanistan would be treated as "unlawful combatants".
George Walker Bush is an American politician and businessman who served as the 43rd president of the United States from 2001 to 2009. He had previously served as the 46th governor of Texas from 1995 to 2000.
The United States of America (USA), commonly known as the United States or America, is a country composed of 50 states, a federal district, five major self-governing territories, and various possessions. At 3.8 million square miles, the United States is the world's third or fourth largest country by total area and is slightly smaller than the entire continent of Europe's 3.9 million square miles. With a population of over 327 million people, the U.S. is the third most populous country. The capital is Washington, D.C., and the largest city by population is New York City. Forty-eight states and the capital's federal district are contiguous in North America between Canada and Mexico. The State of Alaska is in the northwest corner of North America, bordered by Canada to the east and across the Bering Strait from Russia to the west. The State of Hawaii is an archipelago in the mid-Pacific Ocean. The U.S. territories are scattered about the Pacific Ocean and the Caribbean Sea, stretching across nine official time zones. The extremely diverse geography, climate, and wildlife of the United States make it one of the world's 17 megadiverse countries.
The War in Afghanistan, code named Operation Enduring Freedom – Afghanistan (2001–14) and Operation Freedom's Sentinel (2015–present), followed the United States invasion of Afghanistan of 7 October 2001. The U.S. was initially supported by the United Kingdom, Canada, and Australia and later by a coalition of over 40 countries, including all NATO members. The war's public aims were to dismantle al-Qaeda and to deny it a safe base of operations in Afghanistan by removing the Taliban from power. Since the initial objectives were completed at the end of 2001, the war mostly involves U.S. and allied Afghan government troops battling Taliban insurgents. The War in Afghanistan is the longest war in U.S. history.
Critics claimed that signatories to the Geneva Conventions, like the United States, are obliged to treat all captured combatants as if they qualified for POW status, until a "competent tribunal" considers their case and determines that they don't qualify for POW status.
The Supreme Court set aside this question in the case of Hamdan v. Rumsfeld. Although it ruled against the Bush administration on the legality of the Guantanamo military commissions, it also determined that these detainees were due the rights accorded under the more limited Common Article 3. It reserved judgement on Article 5 with its competent tribunals.
Hamdan v. Rumsfeld, 548 U.S. 557 (2006), is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military Justice and the four Geneva Conventions signed in 1949." Specifically, the ruling says that Common Article 3 of the Geneva Conventions was violated.
The Guantanamo military commissions are military tribunals authorized by presidential order, then by the Military Commissions Act of 2006, and currently by the Military Commissions Act of 2009 for prosecuting detainees held in the United States Guantanamo Bay detainment camps.
Following the 2004 Rasul v. Bush ruling, the Bush administration began using Combatant Status Review Tribunals to determine the status of detainees.
Rasul v. Bush, 542 U.S. 466 (2004), was a landmark decision of the United States Supreme Court in which the Court held that foreign nationals held in the Guantanamo Bay detention camp could petition federal courts for writs of habeas corpus to review the legality of their detention. The Court's 6–3 judgment on June 28, 2004, reversed a D.C. Circuit decision which had held that the judiciary has no jurisdiction to hear any petitions from foreign nationals held in Guantanamo Bay.
The Combatant Status Review Tribunals (CSRT) were a set of tribunals for confirming whether detainees held by the United States at the Guantanamo Bay detention camp had been correctly designated as "enemy combatants". The CSRTs were established July 7, 2004 by order of U.S. Deputy Secretary of Defense Paul Wolfowitz after U.S. Supreme Court rulings in Hamdi v. Rumsfeld and Rasul v. Bush and were coordinated through the Office for the Administrative Review of the Detention of Enemy Combatants.
The Bush administration tried to keep secret the identity of all the Guantanamo detainees. But some detainees' identities leaked out. Sympathetic lawyers secured permission from those detainees' families, and mounted legal challenges to try to secure their human rights. The Bush administration lost, and was forced to institute Combatant Status Review Tribunal.
The reviews determined only 38 detainees were not illegal combatants. Then, through some kind of mix-up, Murat Kurnaz's dossier was accidentally declassified.Critics examined its contents. It was hundreds of pages long. All but one of the documents in Kurnaz's dossier established his innocence—established that there was no reason to believe he had any association with terrorism. The lone exception was unsigned, and contained only a vague accusation. This lone memo did not supply any evidence to back up its accusation that Kurnaz was acquainted with a suicide bomber—and the memo didn't even get that suicide bomber's name correctly.
Critics argued that since a single vague accusation had been enough to keep a detainee imprisoned, if one assumed his case was typical, it was reasonable to believe that many other detainees the reviews determined were illegal combatants may have been just as questionable.
Further, the Seton Hall studies conducted by lawyers for detainees found that 92% of detainees in Guantanamo Bay were not "al-Qaeda fighters" and they argue that the CSRT's were severely biased against suspects in favor of determining them unlawful combatants. The study itself reveals that those 92% who are not "al-Qaeda fighters" were deemed to be either other al-Qaeda members or Taliban or members of other affiliated hostile groups.
For this, and other reasons, opponents argued that the Combatant Status Review Tribunals do not constitute a competent tribunal as mandated by the Geneva Convention. The Supreme Court ruled in Hamdan v. Rumsfeld that this was irrelevant, but it also ruled that the CSRT was not legal without congressional authorization. In response the Military Commissions Act was adopted.
An unlawful combatant, illegal combatant or unprivileged combatant/belligerent is a person who directly engages in armed conflict in violation of the laws of war or is fighting outside of internationally recognized military forces. An unlawful combatant may be detained or prosecuted under the domestic law of the detaining state for such action, subject to international treaties on justice and human rights.
A summary execution is an execution in which a person is accused of a crime and immediately killed without benefit of a full and fair trial. Executions as the result of summary justice are sometimes included, but the term generally refers to capture, accusation, and execution all conducted simultaneously or within a very short period of time, and without any trial at all. Under international law, refusal to accept lawful surrender in combat and instead killing the person surrendering is also categorized as a summary execution.
Salah Abdul Rasool Al Blooshi is a Bahraini, who was held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba.
Lahcen Ikassrien is a citizen of Morocco who was held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba. Ikassrien's Guantanamo ISN was 72. The Department of Defense reports that Ikassrien was born on October 2, 1972, in Targist, Morocco.
Extrajudicial prisoners of the United States, in the context of the early twenty-first century War on Terrorism, refers to foreign nationals the United States detains outside of the legal process required within United States legal jurisdiction. In this context, the U.S. government is maintaining torture centers, called black sites, operated by both known and secret intelligence agencies. Such black sites were later confirmed by reports from journalists, investigations, and from men who had been imprisoned and tortured there, and later released after being tortured until the CIA was comfortable they had done nothing wrong, and had nothing to hide.
Peter E. Brownback III is a retired military officer and lawyer. He was appointed in 2004 by general John D. Altenburg as a Presiding Officer on the Guantanamo military commissions. The Washington Post reported: "...that Brownback and Altenburg have known each other since 1977, that Brownback's wife worked for Altenburg, and that Altenburg hosted Brownback's retirement party in 1999."
Adil Kamil Abdullah Al Wadi is a citizen of Bahrain who was held in extrajudicial detention in the United States Guantanamo Bay detainment camps, in Cuba. Al Wadi's Guantanamo Internment Serial Number was 60. American intelligence analysts estimate that Al Wadi was born in 1964, in Muharraq, Bahrain.
Hajji Shahzada is a citizen of Afghanistan who was held in extrajudicial detention in the United States Guantanamo Bay detention camps, in Cuba. Shahzada's Guantanamo Internment Serial Number was 952. Joint Task Force Guantanamo counter-terrorism analysts estimate that Shahzada was born in 1959, in Belanday, Afghanistan.
Faris Muslim al Ansari is a citizen of Afghanistan who was seventeen years old when captured and held in the United States's Guantanamo Bay detention camps, in Cuba. His Guantanamo Internment Serial Number was 253. American intelligence analysts estimate that Al Ansari was born in 1984 in Mukala, Yemen.
Abdul Majid Muhammed is a citizen of Iran who was held in extrajudicial detention in the United States Guantanamo Bay detention camps, in Cuba. His Guantanamo Internment Serial Number was 555. Joint Task Force Guantanamo counter-terrorism analysts estimate he was born in 1978, in Zahedan, Iran.
Detention is the process whereby a state or private citizen lawfully holds a person by removing his or her freedom or liberty at that time. This can be due to (pending) criminal charges preferred against the individual pursuant to a prosecution or to protect a person or property. Being detained does not always result in being taken to a particular area, either for interrogation or as punishment for a crime.
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. The Act's stated purpose was "to authorize trial by military commission for violations of the law of war, and for other purposes".
No-Hearing Hearings (2006) is the title of a study published by Professor Mark P. Denbeaux of the Center for Policy and Research at Seton Hall University School of Law, his son Joshua Denbeaux, and prepared under his supervision by research fellows at the center. It was released on October 17, 2006. It is one of a series of studies on the Guantanamo Bay detention center, the detainees, and government operations that the Center for Policy and Research has prepared based on Department of Defense data.
Nasir Maziyad Abdallah Al Qurayshi Al Subii is a citizen of Saudi Arabia who was held in extrajudicial detention in the United States Guantanamo Bay detention camps, in Cuba. His Guantanamo Internment Serial Number was 497. American counter-terror analysts estimate he was born in 1983, in Al Arib, Saudi Arabia.
The Personal Representative is an officer who serves before the Combatant Status Review Tribunals, convened for the captives the United States holds in extrajudicial detention in the Guantanamo Bay detention camps, in Cuba.
The Combatant Status Review Tribunal the US Department of Defense commissioned, like the Tribunals described in Army Regulation 190-8, which they were modeled after, were three member panels, led by a Tribunal President.
Military Police: Enemy Prisoners of War, Retained Personnel, Civilian Internees and Other Detainees is the full title of a United States Army regulation usually referred to as AR 190-8, that lays out how the United States Army should treat captives.
Every Administrative Review Board, run under the authority of the Office for the Administrative Review of Detained Enemy Combatants, was commanded by a Presiding Officer.
If Colin Powell prevails, a tribunal would have to determine the detainees' status.