Getting Real: Reforming international law governing the detention of terrorist suspects

The secondary argument relies upon Article 5 of the convention, which states that, in the case of any doubt, a detainee will be accorded the rights of a POW until his status is determined by a “competent tribunal”. Under this argument, detainees need not even assert POW status to be entitled to full judicial review of their circumstances.

This interpretation of Article 5 fundamentally undermines the rationale of the convention. By stipulating standards of conduct for lawful belligerents, adherence to which entitles them to consequent rights, the convention seeks to discourage precisely that sort of misconduct in which Al-Qaida and associated forces have engaged. While Article 5 provides an avenue for appeal in cases of genuine doubt, it is not intended to extend de facto protection to those who manifestly fail to meet the criteria.

Consider the practical implications of extending POW rights to terrorist suspects. The convention stipulates that POWs need only provide their name, rank, serial number and date of birth, and may not be subjected to disadvantageous treatment of any kind to extract information. In captivity, they may not be separated from “the armed forces with which they were serving” without consent. Thus effective interrogation would be impossible.

This is not an academic point. Information from Guantanamo interrogations derailed plans for attacks during the Athens Olympics and elsewhere.

Each POW is entitled, immediately upon capture, to write a letter to his family, which must not be delayed. Given that the secret capture of Al-Qaida suspects frequently leads to other suspects, such a right would be wholly incompatible with the successful prosecution of the war on terror.

Suspending disbelief to assume Hicks-class detainees qualify as POWs, another problem presents itself. Article 118 provides for release of POWs “after the cessation of active hostilities”.

If the United States is at war with Al-Qaida and its affiliates, POWs have a long time to wait. The US regards (pdf file 25KB) cessation as the point where "there is no reasonable prospect of the resumption of hostilities [against Al-Qaida]". Even assuming that hostilities in the Afghan region are the relevant determinant, there is no sign of an imminent cessation of low intensity conflict, contrary to the wishful thinking of some activists.

The ASICJ notes that Hicks would be repatriated to Australia, far from the conflict zone, and lamely asserts that his release would be “entirely consistent with the spirit and purpose of the convention”. Those concerned with non-Australian detainees have recognised the problem of indefinite legal detention, but volunteer no solution, apart from calling upon the US to try detainees and release those not convicted.

While this might be desirable, there is no basis in the convention or the law of armed conflict to require such trials of POWs. This is because “the purpose of detention [of combatants] is to prevent captured individuals from returning to the field of battle and taking up arms once again”: it is not punitive in nature.

In summary, it is clear that the application of the convention to terrorist suspects leads to a number of unacceptable results, both frustrating their interrogation and subjecting them to open-ended detention without trial.

Criminal arrests

What about persons like Mamdouh Habib, detained as terrorist suspects in a non-combat environment? Their classification turns upon one’s view of the war on terror.

One view holds that the war on terror is “more a figure of speech than a legal term of art” and “more accurately described as a non-state specific campaign against globally organised crime”. On this view, the whole apparatus of global Islamist jihad is nothing more than a glorified Capone organisation, with the destruction of the Twin Towers and the coincident strike on the Pentagon not an attack on the US, but merely a few thousand coincident homicides.