Tarptautinė humanitarinė teisė ir Guantanamo fenomenas

Abstract

Combatant is a person, who fullfils the criteria, set out in the Geneva convention relative to the treatment of prisoners of war of 12 August, 1949. Recognizing combatant status means entitlement to prisoner of war status upon capture, which provides certain guarantees, including human treatment and fair trial. Although international humanitarian law provides detailed rules for POW status, after the international armed conflict in Afghanistan there emerged a guestion how to treat persons, suspected of terrorism, as they do not seem to fit the existing definitions. US Executive defines Taliban and al Qaeda fighters, captured on Afghanistan soil, as „unlawfull enemy combatants“. They were denied the protection of international humanitarian law, but the Supreme Court of US interfered, giving an explicit recognition of habeas corpus right for Guantanamo detainees and setting up the guidelines for proper process in military commissions. Nonetheless, it also recognized the Executives right to detain enemy combatants until the cessasion of active hostilities. Enforcing the Supreme Court’s decisions, the US Executive created a system of institutions, designed to establish the status of the Guantanamo detainees. Also the rules governing activity of military commissions, established to ty those convicted of war crimes, were adjusted. Recent legislation of US establihes broad powers of the Executive, including a right to interpret the Geneva conventions and unilaterally declare the compliance with their provisions, while the rights of detained persons are restricted and do not even entail a fair trial guarantee. Such practice would be considered undesirable as it actually grants the Executive plenary rights to use its military power against any person, suspected of terrorism.