Thursday, April 20, 2006

Pentagon Issues List of Guantánamo Detainees

The pentagon released a long list, probably the most extensive list until now, of detainees that are or were held at the U.S. operated prison in Guantánamo Bay. (See this BBC-News Article, US Releases More Guantanamo Names; See also the copy of the list and this article on which I found through Opinio Juris.)

The list includes the names and nationalities of 558 detainees. All of them are part of the first official roster of detainees who passed through the Combatant Status Review Tribunal process in 2004 and 2005 to determine whether they should be deemed ‘enemy combatants.’

520 of the listed detainees have been found to be ‘enemy combatants’ by said tribunals, a rather doubtful position under international humanitarian law. According to the US legal position, the status of enemy combatant is equivalent to that of an unlawful combatant which is, again according to the US legal position, a status in between combatants and civilians, giving the detainees neither the rights of an prisoner of war, who inter alia has to be released after the actual fighting ends, nor of a civilian, who has to be indicted for a criminal offence immediately (see for the US position the Supreme Court Case, Ex parte Quirin, 317 U.S. 1, 35 (1942), in which the court developed the position; see also on the current situation US Fact Sheet: Status of Detainees at Guantanamo, February 7, 2002 and White House Presidential Letter, 19 September 2003).

Even if, according to international humanitarian law, there is no status between combatants and civilians (Unlawful Combatants have the primary status of civilians, who have lost their protection under international humanitarian law as they directly participated in hostilities, and as they don’t have combatant immunity they could be indicted under national criminal law for all acts committed, but they have to be indicted. See Knut Dörmann, ‘The legal status of “unlawful/unprivileged combatants”’, RICR 85 (2003), pp. 45, 50, 56; Knut Ipsen, in: Dieter Fleck, The Handbook of Humanitarian Law, Oxford 1995, p. 65) the US is still holding to their position and using it, as can be seen from the list.

38 of the detainees have been found to be non-enemy combatants and 28 of those have been released already.

The release of the list by the Pentagon is the outcome of a court proceeding filed by the Associated Press under the Freedom of Information Act. As I already posted on a proceeding obliging the US to release pictures from Abu Graibh it becomes obvious that much is going on in the US concerning civil rights proceedings and it will be interesting what else will be decided by the US courts in this matter.    


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