Treatment of Detainees at Guantanamo Bay - Essay Example

Since its reopening in 2002, some 750 multinational detainees have been held in the facility, as of 2010. Another 420 detainees have been freed without any charges. The indefinite detention without trial at the detention facility is an ongoing subject of controversy. Several states and international organizations have argued that indeed, the conditions of the facility and the course of detention are in breach of international criminal law and international human rights law. Towards this end, this essay argues that given the history of unwarranted acts directed at the detainees at the facility, there is a need to redefine the concept of prisoners of war (POW) within the framework of international law.

Indeed, there has been an absolute disregard for the POW status of the prisoners at the facility, including former members of the Afghanistan armed forces. Indeed, all detainees at the facility have been classified as unlawful combatants by the US government. Article 4 of the Geneva Convention III specifies the category of individuals entitled to the POW status when taken captive during an armed conflict. According to Article 4(a), prisoners of war consist of members of the armed forces and volunteer militias. Also entitled to the status include members of volunteer corps or militia who are under command, have a distinctive insignia, carry weapons openly, profess allegiance to a government or accompany armed forces without being members.

The question of prisoners of war (POW) status and the treatment of detainees at Guantanamo Bay has continued to generate a heated debate. Within this perspective, several issues are called to attention. This includes whether the international humanitarian law of armed conflict provides a possibility of protecting the detainees as “unlawful combatants” without the need to grant them POW status. Secondly, whether such a possibility exists and whether it would imply that such unlawful combatants should not fall into the scope of the provisions of the Geneva Conventions. The third aspect is the legitimacy of the requirements under the Geneva Conventions about the determination of an individual’s status as a civilian or unlawful combatant, and whether or not the procedures set out by the US government meet these requirements.

Indeed, considerations should be made based on whether prisoners of war are entitled to treatment as provided for in the Geneva Convention of 1949. The relevant rules specifying who is entitled to POW treatment are provided for in Article 4 of the Third Geneva Convention. Article 43 and 44 of the 1977 Additional Protocol I, of the Geneva Convention also protects the prisoners of war. Additionally, the Geneva Conventions are applicable despite the need for ratification by a state party to a conflict since they are part of international customary law. This implies that regardless of whether the United States has ratified Additional Protocol I or not, the provisions contained in the instrument are substantially a component of customary law.

Nevertheless, international humanitarian law distinguishes a combatant from a non-combatant. In this case, only combatants are entitled to the status of POW. For that reason, a crucial question is whether the suspect terrorists detained at Guantanamo Bay were combatants or non-combatants. Indeed, this has been the bone of contention. According to the United States government, suspected terrorists should be termed as ‘illegal combatants’ and therefore not entitled to any rights.