House of Commons - Foreign Affairs

Select Committee on Foreign Affairs Second Report

4 Legal status of detainees

76. The United States clearly believes that it is at war with al Qaeda. Al Qaeda also asserts it is at war with the United States. When countries are at war, prisoners are normally released at the end of hostilities. However, the 'war on terror' is not a conflict between states, but between a state and an ideology. This colours US perceptions of those enemy combatants who fall into its hands.

77. The US authorities say that the great majority of those held at Guantánamo were "picked up on the battlefield," mostly in Afghanistan, although some have been detained in other settings. In US terminology, those detained are 'unlawful enemy combatants.' The Pentagon's view of the legal basis for detaining them was set out in a document handed to us during our visit.[45] It was elaborated on in evidence to the Senate Armed Services Committee in 2005 by Daniel J Dell'Orto, Principal Deputy General Counsel for the Department of Defense:

Lawful combatants include members of the regular armed forces of a State party to the conflict; militia, volunteer corps, and organized resistance movements belonging to a State party to the conflict, which are under responsible command, wear a fixed distinctive sign recognizable at a distance, carry their arms openly, and abide by the laws of war; and, members of regular armed forces who profess allegiance to a government or an authority not recognized by the detaining power. They are entitled to prisoner of war status upon capture, and are entitled to 'combatant immunity' for their lawful pre-capture warlike acts. They may be prosecuted, however, for violations of the law of war. If so prosecuted, they still retain their status as prisoners of war.

Unlawful combatants, or unprivileged belligerents, may include spies, saboteurs, or civilians who are participating in hostilities, or who otherwise engage in unauthorized attacks or other combatant acts. Unprivileged belligerents are not entitled to prisoner of war status, and may be prosecuted under the domestic law of the captor.[46]

78. However, the US Supreme Court ruled in June 2006 that all detainees were entitled to the protection of Common Article 3 of the Geneva Conventions and the new Army Field manual published in September 2006 contains the following, updated definition of unlawful enemy combatants:

Unlawful enemy combatants are persons not entitled to combatant immunity, who engage in acts against the United States or its coalition partners in violation of the laws and customs of war during an armed conflict. For the purposes of the war on terrorism, the term 'unlawful enemy combatant' is defined to include, but is not limited to, an individual who is or was part of or supporting Taliban or al Qaeda forces, or associated forces that are engaged in hostilities against the United States or its coalition partners.[47]

79. In the Military Commissions Act 2006, which was under discussion in Congress while a number of us were in Washington DC in September, the definition of an unlawful enemy combatant is somewhat different, as follows:

(i) a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces); or

(ii) a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense.[48]

Under the Act, an unlawful enemy combatant is subject to trial by a US military commission.[49]

80. Human Rights Watch criticised the Act for including,

… an overly broad definition of 'unlawful combatant' that could subject civilians who purposefully provide virtually any form of support to an armed group (even far from the battlefield) to military detention and trial.[50]

Amnesty International disputes the use by the US of the term 'unlawful enemy combatant', pointing out that such a status is not recognised under international law and that the international armed conflict in Afghanistan ended with the convening of a loya jirga in June 2002.[51]

81. The view of the International Committee of the Red Cross, as we understand it, is that in circumstances of armed conflict the Geneva Conventions provide only a minimum level of protection. In other circumstances, full rights under national and international law should apply. The US Administration appears to have determined that the 'war on terror' is an "armed conflict not of an international character" within the meaning of Common Article 3. As noted above, both the United States and, to a lesser extent, its co-belligerents on the one hand, and al Qaeda, Islamic Jihad, the Taliban and other armed groups on the other hand, make frequent reference to being at 'war', but neither side extends to those whom it captures the status of 'prisoner of war.'

82. There are clear implications of the decision by Congress to define the term 'unlawful enemy combatant' in statute law. The most obvious is that other states might decide to interpret the term in ways which suit them, possibly applying it to armed forces personnel of the United States who are captured abroad in an armed conflict not of an international character. Such is arguably the situation now pertaining in both Afghanistan and Iraq. To take one possible scenario: if Iran were to detain some US personnel who strayed across the international boundary with Iraq—as has happened before—it might deem them 'unlawful enemy combatants' and arraign them as war criminals before a military commission, perhaps one composed of revolutionary guards. It would be difficult, in such a case, for the United States to have resort to the Geneva Conventions.

83. We conclude that, in choosing unilaterally to interpret terms and provisions of the Geneva Conventions, the United States risks undermining this important body of international law.

84. We were told time and again in Washington DC that the Geneva Conventions cannot be applied satisfactorily to modern, asymmetric forms of warfare. This was also a question raised by the Foreign Affairs Committee in June 2002, when our predecessors invited the Government to "consider whether the Geneva Conventions remain wholly appropriate in the modern conduct of warfare."[52] The Government replied:

The Geneva Conventions of 1949 were updated and expanded in the two Protocols of 1977. The Conventions and their Protocols form the cornerstone of international humanitarian law. This crucial body of law is applicable to all kinds of armed conflict; the challenge for all governments is to see that it is faithfully applied. The Government remains determined that the United Kingdom will continue to play a leading role in securing the application and implementation of international humanitarian law worldwide. The Government will keep under review the need to update the law, in consultation as appropriate with the International Committee of the Red Cross and the international community more generally. Our aim is to ensure that it affords the maximum protection to those vulnerable to the effects of armed conflict, that it restricts the means and methods of conflict, and that it delivers justice to all.[53]

85. We conclude that, by its own test, the Government should recognise that the Geneva Conventions are failing to provide necessary protection because they lack clarity and are out of date. We recommend that the Government work with other signatories to the Geneva Conventions and with the International Committee of the Red Cross to update the Conventions in a way that deals more satisfactorily with asymmetric warfare, with international terrorism, with the status of irregular combatants, and with the treatment of detainees.

Why Guantánamo?

86. The US Naval base at Guantánamo was chosen as the location for the detention centre because (a) it is relatively close to the US, but is not in the US and (b) it is secure and easily defended. We were told that it would not be feasible to locate such a facility on US territory, as this would mean that various rights would accrue to detainees, such as the right to apply for asylum or to pursue a legal action against guards. The fact that US federal law does not apply in Guantánamo is the single most important reason why foreign detainees continue to be held there, and not in the United States. This is an important consideration in any discussion of the future of Guantánamo, an issue to which we turn later in this Report.[54]

Former British residents

87. There are no British citizens held in Guantánamo. The nine British citizens who were held there were released in March 2004 and January 2005. However, nine former British residents are still held at the camp. They are nationals of Algeria, Ethiopia, Iraq, Jordan, Libya, Morocco and Saudi Arabia, but all had either been given refugee status in the United Kingdom or had otherwise been granted leave to remain.

88. The Government has adhered to the principle that the former British residents are not entitled to consular or diplomatic support. They have received no visits from FCO staff; nor have their interests been represented in the way that those of the British citizens held at the camp were. This refusal by the Government to act on behalf of the detainees was subject to judicial review and, in October 2006, to appeal. The courts ruled that the Government was under no obligation to act.[55]

89. The Government has in fact made what it calls "informal representations on humanitarian grounds" in respect of the former residents and a FCO Minister has met their families.[56] In recent months, there has apparently been contact between the British and US governments about possible repatriation of the men. According to The Guardian newspaper of 3 October 2006, David Richmond, Director General of Defence and Intelligence at the FCO, wrote that:

The British embassy in Washington was told in mid-June 2006 that, during an internal meeting between US officials, the possibility had been floated of asking the UK government to consider taking back all the detainees at Guantánamo who had formerly been resident in the UK. Information about what had occurred at this meeting had been fed back informally to the embassy, and the UK government wished to clarify the significance of this idea.[57]

According to the Guardian, on 27 June British officials met US officials to discuss the situation of the former residents. Mr Richmond wrote of that meeting:

The US administration would only be willing to engage with the UK government if it sought the release and return of all the detainees who had formally resided in the UK (ie, regardless of the quality of their links with the UK), rather than just a subset of the detainees falling in that category.

90. The FCO told us that "Contrary to media speculation, the US Government has not offered to return the 'British residents' to the UK."[58] The FCO did, however, confirm that the former Foreign Secretary wrote to Condoleezza Rice, requesting the return to the United Kingdom of one of the former residents, Bisher Al-Rawi, "having considered his fact-specific claim and on the basis of shared counter-terrorism objectives." According to the Guardian, Mr Al-Rawi had once worked on behalf of MI5.[59] The Government has refused to release Mr Straw's letter.[60]

91. A senior Home Office official is quoted in the same newspaper article as expressing the view that it would not be possible to subject the other former residents to control orders, and that keeping them under surveillance would require the diversion of resources from other counter-terrorist operations. The FCO told us only that "Discussions between the British and US Governments about Mr Al Rawi's release and return to the UK are continuing."[61] There is no suggestion that the Government is also discussing the possible return of the other former residents.

92. The Court of Appeal has concluded that the Government is within its rights not to accept consular responsibility for non-British nationals, or to make diplomatic representations on their behalf. On 8 January, FCO Minister of State Ian McCartney informed the House that the cases of the former British residents (other than Mr al-Rawi) will be heard on appeal in the House of Lords.[62] He declined to comment further, apparently on the basis that these cases were therefore sub judice under the terms of the Resolution of the House of Commons on matters sub judice.[63] We have considered this point and have taken advice. We are clear that the waiver set out in the Resolution in respect of issues where a ministerial decision is in question applies in this case. We are therefore free to comment on those ministerial decisions. We conclude that the Government is right to stick to its established policy of not accepting consular responsibility for non-British nationals. We recommend that the Government maintain its current position with respect to the return to the United Kingdom of the former British residents presently detained at Guantánamo Bay.