Competent tribunal

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Competent Tribunal is a term used Article Five of the Third Geneva Convention, which states:

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.

1 "Competent tribunals" in the context of the detainees held at Guantanamo Bay
2 Combatant Status Review Tribunal as competent tribunals
3 "Competent tribunals" during the 1991 Gulf War
4 References

[edit] "Competent tribunals" in the context of the detainees held at Guantanamo Bay

This term began to receive a lot of attention when President George W. Bush announced that the United States would follow the Geneva Conventions as it was strictly interpreted, and that the war in Afghanistan did not fall within that purview. As such, President Bush stated that fighters captured in the war in Afghanistan would be treated as "unlawful combatants".

Critics claimed that signatories to the Geneva Conventions, like the United States, are obliged to treat all captured combatants as if they qualified for POW status, until a "competent tribunal" considers their case and determines that they don't qualify for POW status.

The Supreme Court set aside this question in the case Hamdan v. Rumsfeld. Although it ruled against the Bush administration on the legality of the Guantanamo military commissions, it also determined that these detainees were due the rights accorded under the more limited common Article 3. It reserved judgement on Article 5 with its competent tribunals.

[edit] Combatant Status Review Tribunal as competent tribunals

Main articles: Unlawful combatant and No-hearing hearings

Following the 2004 Hamdi v. Rumsfeld ruling the Bush administration began using Combatant Status Review Tribunals to determine the status of detainees.

The Bush administration tried to keep secret the identity of all the Guantanamo detainees. But some detainees' identities leaked out. Sympathetic lawyers secured permission from those detainees' families, and mounted legal challenges to try to secure their human rights. The Bush administration lost, and was forced to institute Combatant Status Review Tribunal.

The reviews determined only 38 detainees were not illegal combatants. Then, through some kind of mix-up, Murat Kurnaz's dossier was accidentally declassified.^[1] Critics examined its contents. It was hundreds of pages long. All but one of the documents in Kurnaz's dossier established his innocence -- established that there was no reason to believe he had any association with terrorism. The lone exception was unsigned, and contained only a vague accusation. This lone memo did not supply any evidence to back up its accusation that Kurnaz was acquainted with a suicide bomber -- and the memo didn't even get that suicide bomber's name correctly.

Critics argued that since a single vague accusation had been enough to keep a detainee imprisoned, if one assumed his case was typical, it was reasonable to believe that many other detainees the reviews determined were illegal combatants may have been just as questionable.

Further, the Seton Hall studies conducted by sympathetic lawyers found that 92% of detainees in Guantanamo Bay were not "al-Qaeda fighters" and they argue that the CSRT's were severely biased against suspects in favour of determining them unlawful combatants. The study itself reveals that those 92% who are not "al-Qaeda fighters" were deemed to be either other al-Qaeda members or Taliban or members of other affiliated hostile groups.^[2]

For this, and other reasons, opponents argued that the Combatant Status Review Tribunals do not constitute a competent tribunal as mandated by the Geneva Convention. The Supreme Court ruled in Hamdan v. Rumsfeld that this was irrelevant, but it also ruled that the CSRT was not legal without congressional authorization.

[edit] "Competent tribunals" during the 1991 Gulf War

In a brief before the US Supreme Court, in Hamdi v. Rumsfeld, Hamdi's lawyers said 1,196 tribunals were held during the 1991 Gulf War: ^[3]:

The 1,196 tribunals convened during Operation Desert Storm resulted in 310 individuals being granted POW status. The remaining 886 detainees who presented claims before the tribunals “were determined to be displaced civilians and were treated as refugees.”

The Geneva Conventions were not relevant to this matter of the Hamdi decision, as the Court recognized the power of the government to detain unlawful combatants. It ruled, however, that detainees who are U.S. citizens such as Hamdi must have the ability to challenge their detention before an impartial judge.