Applied Human Rights Law


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This is a presentation on the legality of the prisoners being held at Guantanamo Bay. It compares prisoner of war status to enemy combatant status. Also addresses human rights and juveniles. It was for a class on Applied Human RIghts Law taken at Webster University in Leiden, the Netherlands.

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Applied Human Rights Law

  1. 1. Applied International Human Rights Law Summer 2008 Leiden, NL Elizabeth Popp How can International Human Rights Law be more fully applied?
  2. 2. Guantanamo Bay Prisoner of War Enemy Combatant Esher: Eye
  3. 3. Guantanamo Bay: A brief history <ul><li>Southeast corner of Cuba, 500 miles from Miami, FL </li></ul><ul><li>1898: US takes over Cuba after Spanish-American War </li></ul><ul><li>1903: US leased area for coaling </li></ul><ul><li>1934: Lease reaffirmed (terms: payment of $2000 in gold/ year, both Parties have to consent to terminate) </li></ul><ul><li>1961: Eisenhower ends diplomatic relations </li></ul><ul><li>Cuba patrols one side, US the other </li></ul><ul><li>Base used as detention facility for Cuban and Haitian refugees until US judge declares it unconstitutional in 1993. </li></ul><ul><li>2002: Base used as prison for detainees from Afghanistan and Iraq </li></ul><ul><li>Source: and </li></ul>
  4. 4. Definitions: International View Changing of the Guard, London Source: E. Popp
  5. 5. Prisoners of War: Geneva Convention (12 August 1949) A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy: 1. Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces. 2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions: (a) That of being commanded by a person responsible for his subordinates; (b) That of having a fixed distinctive sign recognizable at a distance; (c) That of carrying arms openly; (d) That of conducting their operations in accordance with the laws and customs of war. 3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. 4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model. 5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law. 6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
  6. 6. Geneva Convention 12 August 1949 Article 5 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. WWII Monument, The Hague
  7. 7. Definitions: US View Dino fossil @ Natralis Museum, Leiden
  8. 8. Military Commissions Act <ul><li>Lawful enemy combatant: member of regular forces, militia, volunteer corps, or organized resistance movement that belongs to a state (whether officially recognized or not) that is engaged in hostilities against the United States </li></ul><ul><li>AND </li></ul><ul><li>Wears a fixed distinctive sign recognizable at a distance </li></ul><ul><li>Carry his or her arms openly </li></ul><ul><li>Abides by the law of war </li></ul><ul><li>**Unlike the Geneva Convention, the </li></ul><ul><li>Act has no additional exemptions for </li></ul><ul><li>individual definitions. It “also explicitly </li></ul><ul><li>defines members of the Taliban, </li></ul><ul><li>al Qaeda and associated forces as </li></ul><ul><li>unlawful enemy combatants.” </li></ul><ul><li>However: there is no clear cut definition </li></ul><ul><li>of an unlawful enemy combatant! </li></ul><ul><li>Source: Miller, Joe. (2008). What is an Enemy </li></ul><ul><li>Combatant? Annenberg Public Policy Center </li></ul><ul><li>of the University of Pennsylvania. Retreived 7-18-2008 </li></ul><ul><li>From </li></ul>Source: (modified slightly)
  9. 9. Many of the people held at Guantanamo should be released, many (if not all) should have POW status. <ul><li>But… </li></ul><ul><li>They don’t. President Bush has made up a new category. In doing so, the prisoners at Guantanamo have not been treated humanely. Their treatment has been in violation of human rights law. </li></ul>Sensory Deprivation at Guantanamo Source:
  10. 10. Marilyn McMorrow says that the American decision to invent a new classification is responsible for: <ul><li>“ violating fundamental human rights and freedoms: </li></ul><ul><li>undermining the legal and moral standing of the Geneva Conventions and International Human Rights Law, as well as national and international respect for these norms; </li></ul><ul><li>undermining the United States Armed Forces in their commitment to set and uphold the highest standards for the conduct of officers and soldiers, as well as internal, domestic, and international respect for members of the armed service.” </li></ul><ul><li>McMorrow, Marilyn. &quot;Enemy Combatant: Probing the Implications of This Problematic Category&quot;  Paper presented at the annual meeting of the International Studies Association, Town & Country Resort and Convention Center, San Diego, California, USA , Mar 22, 2006 Online < PDF >. 2008-06-27 <> </li></ul>
  11. 11. Even if they don’t qualify by definition as a POW, the prisoners still deserve to be treated humanely.
  12. 12. Juveniles Omar Khadr Mohammed Jawad Mohammed el Gharani
  13. 13. Juveniles at GTMO <ul><li>20+ detainees under the age of 18 have been brought to the prison camp since 2002 </li></ul><ul><li>2003: The news that there were three children (13-15) being held in Guantanamo Bay led the building of “Camp Iguana”- a separate facility for them where they could learn, meet with a social worker, and have recreation. They were eventually released to another state for rehabilitation and the Camp is now used for meetings. </li></ul><ul><li>“ Unlike with the three boys held at Camp Iguana and released for rehabilitation, the Pentagon has never acknowledged the juvenile status of Khadr, Jawad or El Gharani. Although international law provides that anyone under 18 is a child and entitled to special treatment, the Defense Department created its own standard: Anyone who was 16 would automatically be treated as an adult. When I asked Defense Department officials in 2004 about the rationale for this policy, they had no reply. One official finally admitted to me that it was completely arbitrary.”   </li></ul><ul><li>Source: Human rights watch </li></ul>
  14. 14. Hypocritical? <ul><li>Around the same time that Khadr, El Gharani and Jawad were brought to Guantánamo, the US ratified the Optional Protocol to the Convention on the Rights of the Child. The Protocol makes it illegal to use children under 18 in armed conflict. It also “obligates governments to help rehabilitate child soldiers and help them reintegrate into society.” </li></ul><ul><li>Source: Human rights watch </li></ul>
  15. 15. Solution: <ul><li>Follow the rules </li></ul><ul><li>Be honest </li></ul><ul><li>Have integrity </li></ul><ul><li>Respect life </li></ul><ul><li>Seek justice, not vengeance </li></ul>Source: E. Popp Owl at Natralis Museum, Leiden
  16. 16. The US needs to: <ul><li>Play fair. The same rules should apply to everyone. </li></ul><ul><li>If we want to be a leader, we need to act like a leader. </li></ul><ul><li>Respect life: Sign the Conventions dealing with human rights and abide by them. </li></ul>
  17. 17. Tina Hart may use any of my slides for future presentations about Leiden or the legal studies program. However, you do not have permission to do so for profit or to sell any of my pictures. 