The United States of America has in its custody several hundred Taliban and Al Qaeda combatants who were captured after the September 11, 2001 attack and during the war in Afghanistan. These prisoners are incarcerated at the Guantanamo naval base in Cuba. The treatment given to these detainees has elicited widespread criticism, as well as unprecedented intellectual and legal debates regarding prisoners of war. In order to fully understand the position of the Guantanamo Bay detainees, one has to be aware of the origins of the prisoner-of-war phenomenon. From biblical times, through the countless conflicts that were waged across the globe through the ages, the concept of “prisoner of war” gradually evolved. Growing concern for the plight of prisoners of war was paralleled by the development of the laws of war, which sought to regulate the conduct of combatants during an armed conflict. The laws of war that have bearing on modern day States are those documented in the Geneva Conventions. The Geneva Conventions regulate armed conflicts and set out the requirements for prisoners of war, as well as their trial rights. The United States, in declaring the Guantanamo Bay detainees “unlawful combatants” or “illegal enemy combatants”, terms which are undefined in International Law, have sought to evade the prescripts of the Geneva Conventions. In direct contravention of the Geneva Conventions, the Guantanamo Bay detainees are denied the right to humane treatment, a fair trial and due process of the law. Prior to Hamdan vs Rumsfeld, the United States’ position was challenged with very little success. The Supreme Court, in Hamdan vs Rumsfeld, directed the president to accord the detainees the protections of the Third Geneva Convention. The relief brought by this decision was very short lived. In September 2006 the United States Congress passed the Military Commissions Act of 2006. This Bill gives the president of the United States unfettered power in dealing with anyone suspected of being a threat to the State, as well as the authorisation to interpret and apply the Geneva Conventions according to his sole discretion.
| Identifer | oai:union.ndltd.org:netd.ac.za/oai:union.ndltd.org:nmmu/vital:10278 |
| Date | January 2007 |
| Creators | Kilian, Clive Linton |
| Publisher | Nelson Mandela Metropolitan University, Faculty of Law |
| Source Sets | South African National ETD Portal |
| Language | English |
| Detected Language | English |
| Type | Thesis, Masters, LLM |
| Format | iii, 83 leaves, pdf |
| Rights | Nelson Mandela Metropolitan University |
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