The end of World War II has introduced an era where human rights were not only appreciated, but also considered inherited entitled. They were addressed by the Universal Declaration of Human Rights, which was adopted by the U.N. General Assembly, as part of the International Bill of Human Rights, in December, 1948 (United Nations). According to the Universal Declaration of Human Rights, Article 9, no person should be subjected to “arbitrary arrest, detention or exile” (United Nations). However, during wartime, the Fourth Geneva Convention is used, so to define detainees. There are many contradicting viewpoints, as to whether an individual can be held in military prison, facing military detention, or if this act violates the human rights. Opposing viewpoints contradict; however, if an individual poses a threat to the nation’s security, they should be subject for military detention, only providing they retain their minimal human rights. Existing legislature supports this viewpoint, and clearly defines the cases when one is subject to military detention, as well as other cases related to military detentions.
Defining military prison
A military prison is a type of prison where prisoners of wars, enemy combatants, and those who have committed serious crimes that can dangerously affect a state’s national security during wars are kept. There are two types of military prisons: prisons where criminals are punished, and prisons where enemies for military reasons are kept, till the end of hostilities and war between the two countries. Usually, every country has its own military police, whose responsibility is to supervise and arrest prisoners of war.
Legislation that defines who might be subjected to military detention
The term enemy combatants refers to the members of armed forces of the country with which the country is in war (Wittes, 2009 p.115). There are two types of combatants: lawful and unlawful. Unlawful combatants are subjected to detention; however, they have the right of trial by military tribunals for the hostility actions that imparted to be unlawful (Herman, 2011). The person who goes beyond the military line of a country, with which their own country is in war, without notification and uniform, in order to find information, or to deprive persons from life or property, and carry on the war, is a great example of unlawful enemy combatant. This should be separated from the prisoner-of-war under the Geneva conventions. According to the fourth article of the third Geneva Convention (1949), prisoners of war are defined as the individuals that fall under the power of an enemy State (International Committee of the Red Cross), and include:
(1) Members of the armed forces of a conflicting party, militias, volunteers that form the part of the country’s armed forces (International Committee of the Red Cross)
(2) Members of other militias and members of other volunteer corps that belong to a conflicting party and act in their territory or outside of that area even if that area is occupied, if that members satisfy the requirements under the Geneva Convention (International Committee of the Red Cross)
(4) Persons who joined the armed forces without being a part of it, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labor units or of services responsible for the welfare of the armed forces, but only in cases if they get authorization (International Committee of the Red Cross).
(5) Members of crews (International Committee of the Red Cross).
After 2004, in the US, the Pentagon, the symbol of the country’s military, demonstrated formulas for Combatant Status Review Tribunals, based on the Army’s regulations (Department of Defense, 2004). The detainees who are not considered as enemy combatants should be returned to their countries of citizenship, according to the national law and international obligation of the US.
Military Detentions for Members of Terrorist Organizations
During terrorist actions, not only the members who are engaged in the hostilities are subjected to military detentions, but also the members that are not personally involved in the actions of war (Witess, 2009). The question that arises is whether entities that are not members of a terrorist company, or their membership cannot be proved, and they are not engaged in the actions of war themselves, should be subjected to military detentions. The US government attorney stipulated that in order to be the subject of military detention, the support should be essential. The Material Support Law required that the defendant should have known that the company who got the support was appointed as a terrorist organization, or the fact that the company was involved in terrorist proceedings (Witess 2009).
After terrorist attacks in 2001, the US Congress gave the president the right and authority to use military force against the persons or organizations or states who organized, accomplished or carried out terrorist attacks against US. Very soon after this authorization, the President of the United States published general guidelines about the detention of enemy combatants, and created Military Commissions to handle the cases of detainees who violated the law during the wars. From 2002 and onwards, the US began to move suspicious foreign elements to Guantanamo Bay, Cuba for preventive detention (Elsea and Garcia, 2010). In 2006, US Congress passed the Military Commissions Act, which regulated procedural requirements and rights for the Commissions. After these actions, the debate in US begun. The question was whether the detainees of Guantanamo should have constitutional protection or not.
It should be noted that the right for Habeas Corpus, cannot be delayed, except only in cases when it will be dictated by an emergency situation, like an invasion (Elsea and Garcia, 2010). Finally, the US Supreme Court concluded that Guantanamo detainees also have the advantage of Habeas Corpus, unless it is substituted with another reasonable, and attributed equal right for these detainees (Boumediene v. Bush 553 U.S). The debate was resolved; however, there were problems that needed regulation, such as the remedies for those persons, who were unlawfully held and detained by the US. Indicatively, in Hamdan V. Rumsfeld case (2006), Hamdan, who used to work as a driver, was caught in Afghanistan and argued the lawfulness of the Secretary of Defense’s project to sue him for war crimes before the military commissions (Legal Information Institute, 2006). Hamdan argued that the procedure of the military commission violated the rights and privileges given to him, under the Geneva conventions, as a prisoner of war. The US District court found that Geneva conventions are applicable for all Afghanistan cases and that all persons detained there for the hostilities have the rights under the conventions (Legal Information Institute, 2006). The court concluded that Hamdan had a status of prisoner of war, unless the competent tribunal would establish his status otherwise (Legal Information Institute, 2006).
Prisoners of war are the persons who belong to the military forces of the colonized country, if the persons have made abortive efforts to join its country’s armed forces which are engaged in combat or the persons belonging to one of the categories counted in the Geneva Convention, “who have been received by neutral or non-belligerent Powers on their territory and whom these Powers” (The Geneva Convention, 1949) are required to confine under international law, without intolerance “to any more favorable treatment which these Powers may choose to give and with the exception of Articles 8, 10, 15, 30, fifth paragraph, 58-67, 92, 126” (The Geneva convention, 1949), and where political dealings are present between the Parties to the conflict, and the impartial or non-belligerent Power concerned, those Articles concerning the Protecting Power” (The Geneva Convention, 1949). On all occasion where relations of a diplomatic nature exist, “the Parties to a conflict on whom these persons depend, [are allowed by law] to perform towards them the functions of a Protecting Power as provided in the present Convention, without prejudice to the functions which these Parties” (The Geneva Convention, 1949), generally exercise in agreement with diplomatic and consular practice and treaties.
The D.C. Circuit Court of Appeals had reversed the decision of the first instance court, but the Supreme Court reviewed the case, only to reverse it, too. The US government’s statements, according to which, the person is not protected under The Geneva Convention did not persuade the Court, to send away the case. In fact, the court stipulated that Geneva Conventions which are the part of the legislation are within the law that can be used by the courts (Hamdan, 548 U.S at 594-595, as cited in Elsea, 2010).
In 2009, Obama, the President of the US, issued a new order according to which Guantanamo must be closed in 1 year (Executive Order 13492, 2009). After the realization of this decision, state authorities would have to decide whether a detainee should be kept by the US, moved to the third country, or be accused of crime. Unfortunately, the requirements of the US president’s order were not met on time, and he delivered a decision that the requirements of his order would be actualized sometime in the near future.
Detainee treatment act of 2005
The Detainee Treatment Act (2005) prohibits any cruel, inhuman and degrading punishment for the detainees in any custody of the US (109th CONGRESS Report, 2005). These actions are banned, according to UN Convention against torture and other inhuman, cruel, degrading treatment or punishment (Section 1003(d) of P.L. 109-148, as cited in Garcia, 2006). These actions are also banned, according to the European convention for the protection of fundamental rights and freedoms (article 2, 1953). The discussed above actions also violate the fourteenth, eight, and fifth, amendments of the US Constitution. This act gives the opportunity to challenge in the court the detainee’s punishment and living conditions. It also provides an opportunity to the state officers to have a legal defense when they can be prosecuted based on their treatments or interrogations of detainees (Section 1004 of P.L. 109-148, as cited in Elsea, 2010).
The Military Commissions Act of 2009
After the US Supreme court’s decision over the Hamdan case, the US President’s administration demonstrated the Congress a new law about the Military Commissions (US Government Printing Office, 2009). It was admitted on October 16, 2006. According to this act, a particular category of detainees had to have their trial by Military Commissions, from that moment and on. The law regulated the legal procedures for the Commissions to be governed, as well. In 2009, the new Military Commissions Act was introduced as part of the National Defense Authorization Act (US Government Printing Office, 2009). A modified version of the discussed legal act did modifications concerning the rules and procedures of the Military Commissions in the existing act (Elsea, 2007).
According to The Military Commissions Act (2009), all detainees who are considered to be enemy combatants may have the commissions as an exclusive remedy not only in Guantanamo, but also in every part of the world. The military commissions organized by the President of the country, for the purposes of realization the authorities of it, have concluded that any belligerent enemy is the subject for the trial of this Commission. Generally, every commission officer having an ongoing duty in the armed forces, including the officers of the National Guard of in State service, can be a member of a military commission. The members of the commission are usually elected based on their education, experience, the length of their service and other components in order to ensure the best quality of the commission that can resolve all the problems and cases in the right way. However, it should be noted that the officer of the armed forces cannot be simultaneously a member of the military commission when s/he is a litigant, witness or investigator in the same case (The Military Commissions act (2009), § 948j, as cited in Elsea, 2010).
The military judge should be both appointed for each military commission and a commissioned representative of the armed forces of the country, as well as a member of a bar of the federal court or the highest court of the State. Furthermore, he/she is qualified for this duty as a military judge by the Judge Advocate General of those armed forces for which the judge has appointed (The Military Commissions act (2009), § 948j, as cited in Elsea, 2010). The military judge should not have the right to consult with the members of the commission except trial counsel and defense counsel and in cases when such consultation is stipulated by law. The military judges also do not have the right to vote with the members of the commission.
For the purposes of verbatim record of the proceedings of testimony, qualified court reporters should be employed. An interpreter should also be employed, in order to translate for the military commission, and if necessary for the defense counsel, trial counsel and the accused too. Military commission is organized from 5 members; however when the accuser’s punishment will be the death penalty, commissions member should be more than five and decision should also be unanimous (The Military Commissions act (2009), § 948m, as cited in Elsea, 2010). If the number of the members of the commission is less than is stipulated by law, the trial should not take place till the absent member is substituted with a new one who can provide no less than the absent one. No person cannot be ordered testify against himself during the trial in the Military Commission. All the statements that were given by use of torture, inhuman, cruel and degrading treatment cannot be admissible by the military commission (Bradley, 2007). All trial, pretrial, and post-trial procedures by the military commission should be established by the Secretary of defense; however, these procedures can somehow contradict the rules that are stipulated in the Military Commissions Act (2009). The rules and procedures of evidence of the general courts can be applicable in the trials of the Commission, unless otherwise stipulated by law (for instance, secretary of defense, after consulting to the attorney general, can come to the conclusion that the rules and procedures of evidence of general courts cannot be applicable in military-related cases due to their uniqueness of circumstances). During the trial of an accused person s/he may have the specific rights that cannot be restricted such as:
1. Be present in all the proceedings of the military commission
2. Cross –examination of all the witnesses whose testimonies are against the accused person.
3. Investigation of all the statements and evidence that are against or for the accused person
4. Right to self-representation (Bradley, 2007).
According to the Military Commissions Act, all the members of the commission should vote secretly. The military judge should represent the elements of the voting process and rules to the member of the commission when the accused person is present there. The judge should tell the members that the accused person has the presumption of innocence until his guilt is proved by the evidence that is beyond of any doubt that it there will occur any uncertainty about the guilt of the accused person it should be determined in favor of the accused person and that the burden of proof that the accused person’s guilt is beyond any logical doubt is on United States.
The military judge has an obligation to make any rule for the trial under the law of the country, and that rules will be in force during the whole trial. However, the judge has the right to change his decision and rule every time he wants.
Finally, it should be noted that the Military commission should give reports about the trials actualized by the Commission every year no later than 31 of January. The reports should be presented to the Committee on Armed Service of the Senate and to the House of representatives.
Military prisons are the type of prisons where the enemy combatants, prisoners of wars and those who have committed serious crimes against the state are kept. Throughout this research work, the differences between prisoners of wars and enemy combatants have been presented, and the issues related to the rights and protections of the military detainees have been discussed. Furthermore, a detailed illustration was given about the Geneva Conventions, and numerous national acts that rule different cases of military detention. Citing the various US Supreme Court’s decisions has demonstrated that military detainees should also have minimal human rights. In any other case, the actions against them can be considered as contradictory with the Constitution of the United States and the international obligations of the country. The Military Commissions Act of the United States (2009) has become the main vehicle to prove the aforementioned viewpoint. The same applies to the principles of the election of military judge and commission members, their authorities and also the reports given to the Senate and to the House of Representatives by the Military Commissions.
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