Competent tribunal
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.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:
[Hamdi v. Rumsfeld writ of habeas corpus (.pdf), Human Rights First]:
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."This term began to receive a lot of attention when President
George W. Bush announced that the
United States would not treat fighters captured in
Afghanistan as
lawful combatants, as defined by the Geneva Conventions. Rather President Bush stated that fighters captured in Afghanistan would be treated as "
unlawful combatants".
Critics pointed out 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 Bush administration tried to keep secret the identity of all the Guantanamo detainees. But some detainee's identities leaked out. Sympathetic lawyers secured permission from those detainee's families, and mounted legal challenges to try to secure the detainee's 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.
[ Panel Ignored Evidence on Detainee: U.S. Military Intelligence, German Authorities Found No Ties to Terrorists, Washington Post, March 27, 2005] Critics examined its contents. It was hundreds of pages long. All but one of the documents in Kurnaz's dossier, established his innocence and the memo didn't even get that suicide bomber's 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 assume many other detainees the reviews determined were illegal combatants who may have been just as innocent.
For this, and other obvious reasons, legal experts state that the Combatant Status Review Tribunals do not constitute a competent tribunal as mandated by the Geneva Convention.
