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Military Commission Jurisdiction Over POWs

The U.S. military order and instructions are inconsistent with provisions of the 1949 Geneva Conventions relating to the prosecution of prisoners of war (POWs). Under the Third Geneva Convention, a POW can be validly sentenced only if tried by “the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power,”¹² and “shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him.”¹³

Because U.S. service members are tried under courts-martial as established by the Uniform Code of Military Justice and have a right of appeal to an independent civilian court,¹⁴ any POW held by the United States must also be tried by a court-martial and have a similar right of appeal. Military commissions are not the same as courts-martial – they were created precisely to preclude some of the procedural safeguards of courts-martial, and, as noted under the Military Order of November 13, 2001, persons tried before the commissions have no right of appeal to a civilian court.¹⁵

Detained Taliban soldiers (members of the regular armed forces of the then-government of Afghanistan) and perhaps other detained combatants should have been designated by the United States as POWs under the Third Geneva Convention. Moreover, all captured belligerents should have been treated as POWs unless a “competent tribunal” individually determined otherwise.¹⁶ The Bush administration instead violated its clear obligations under the Third Geneva Convention and made a blanket ruling that no captured combatants in Afghanistan were entitled to POW status. Denying POW status without convening competent tribunals was not only unlawful, but it also contravened both past U.S. military practice and recent U.S. military practice in Iraq. (The Hamdan appellate court accepted as valid the president’s determination that none of those detained at Guantanamo were entitled to POW status, but also held that the military commissions could be the competent tribunal to determine POW status under the Third Geneva Convention.)

The failure of the United States to properly determine whether any persons held in connection with the armed conflict in Afghanistan are POWs does not obviate its legal obligation to ensure that any trials of persons entitled to POW status are conducted in courts-martial with a right of appeal to an independent civilian court. “[W]ilfully depriving a prisoner of war of the rights of fair and regular trial” is a grave breach of the Third Geneva Convention.¹⁷

The improper determination of the legal status of captured belligerents also bears on the propriety of charges brought against persons prosecuted before the commissions. Under international humanitarian law, so-called unlawful or unprivileged belligerents do not have any combatant immunity. That is, they may be prosecuted for conduct – such as shooting at U.S. forces – that is not criminal when undertaken by members of the armed forces. The military commission rules state that where an element of a crime requires the absence of combatant immunity, the prosecutor has the burden of establishing that the accused was indeed an unprivileged belligerent.¹⁸ The issue must be decided in each case based on a fair and independent assessment of the specific facts before the commission.

The U.S. government’s high-level, public assertions that none of the persons captured during the international armed conflict in Afghanistan are entitled to POW status should not play any role in the determinations made by the military commission concerning the status of individuals being prosecuted before them. We are concerned, however, that it will be extremely difficult for a court under the direct authority of the executive branch to reach an independent and impartial finding on this issue.