Prosecution: While
· POWs cannot be tried or punished simply for their participation in the armed conflict, they may be prosecuted for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law. POWs are entitled to substantial legal protections during the trial: POWs have the right to be tried before the same courts and facing the same procedures that the detaining power's military personnel would face, offering "the essential guarantees of independence and impartiality." In the case of Afghanistan POWs, that would mean trial before U.S. court martial or U.S. civilian courts. POWs are entitled to competent counsel to represent them at the trial, and must be informed of the charges against them. POWs are also entitled to have an appeal of their conviction and sentence.
POW status provides protection only for the act of taking up arms against opposing military forces, and if that is all a POW has done, then repatriation at the end of the conflict would be required. But as Article 82 of Third Geneva explains, POW status does not protect detainees from criminal offenses that are applicable to the detaining powers' soldiers as well. That is, if appropriate evidence can be collected, the United States would be perfectly entitled to charge the Guantanamo detainees with war crimes, crimes against humanity, or other violations of U.S. criminal law, whether or not they have POW status. As Article 115 of the Third Geneva Convention explains, POWs detained in connection with criminal prosecutions are entitled to be repatriated only "if the Detaining Power [that is, the United States] consents."
Nonprivileged or unlawful combatants may be charged with criminal offenses arising out of their participation in the armed conflict.armed activity, because they are not entitled to the immunity that is often called the "combatant's privilege." Like POWs, they can also be charged with committing war crimes, crimes against humanity, and common crimes. or other serious offenses. While nonprivileged combatants are not entitled to the extensive trial rights of POWs under the Third Geneva Convention, they are entitled to a "fair and regular trial" and the trial protections provided by the Fourth Geneva Convention. It is a fundamental provisions of the Geneva Conventions that all detainees are entitled to "all the judicial guarantees recognized as indispensable by civilized peoples." Nonprivileged combatants are entitled to trial before a "properly constituted, non-political military court," to be informed of the charges against them, to present their defense and call witnesses, to be assisted by qualified counsel of their own choice, to have an interpreter, and to mount an appeal against the conviction and sentence. As an exceptional measure, trials may be held in camera if the security of the state so requires.
1 International Committee of the Red Cross, Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Geneva: 1958), p. 51 (emphasis in original). The International Criminal Tribunal for the Former Yugoslavia, charged with prosecuting war crimes and crimes against humanity committed during the recent conflicts in the Balkans, has explicitly affirmed this principle in a 1998 judgment, stating that "there is no gap between the Third and Fourth Geneva Conventions. If an individual is not entitled to the protection of the Third Convention as a prisoner of war ... he or she necessarily falls within the ambit of [the Fourth Convention], provided that its article 4 requirements [defining a protected person] are satisfied." Celebici Judgment, para. 271 (1998).
2 Celebici judgment, para 271.
3 Remarks of Michael J. Matheson, American University Journal of International Law and Policy, Vol. 2. No. 2 (1987), pp. 425-26.
4 U.S. military Judge Advocate General Operational Law Handbook (2000). Eds. M. Lacey & B. Bill. International Law and Operational Law Department, Judge Advocate General's School, Charlottesville,
Ch 5, p. 7.
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