ABSTRACT
One of the most controversial chapters in the history of armed conflict was the opening and maintenance of the detention facilities at Guantanamo Bay, Cuba after 11 September 2001. In this facility is detained suspected terror suspects from around the world and for the first few years of the camp’s operation, detainees were unable to challenge the lawfulness of this detention. It brought the rights of detainees in armed conflict to the attention of the international law community and resulted in a number of domestic cases considering both the Geneva Conventions and international human rights law. The application of this new body of law is of direct relevance to the conflict in southeast Turkey. First, this chapter reviews the definition of belligerents or combatants within
the treaties constitutive of international humanitarian law, in both international and non-international armed conflict. It also discusses the various protections afforded to belligerents in the various types of armed conflict. It must be noted that unless a status of belligerency is conferred in a non-international armed conflict, then Common Article 3, as discussed in Chapter 3, only applies to those who are hors de combat or are sick and wounded, not those still involved in combat. Furthermore, all of the extensive guarantees available to combatants in Geneva Convention (III) relative to the Treatment of Prisoners of War are not applicable to fighters in non-international armed conflict. Further complicating this issue is the lack of acceptance by many sovereign states including Turkey of the minimum protections contained in Additional Protocol II of 1977 to the Geneva Convention. Once again it is the consideration of customary international law which is pertinent to this situation. One of the most important and most complex aspects of international humani-
tarian law is the obligation to distinguish between civilians and combatants. Although it is true that combatants can be targeted and killed, it is also confirmation of that status that leads to extensive obligations to treat those combatants with dignity and, in an international armed conflict, to give them the status of prisoners of war. Nowhere in international humanitarian law is the contrast between international and non-international armed conflict so evident. As is discussed in Chapter 3, the issue of participation in armed conflict has recently been under
examination by a committee convened by the International Committee of the Red Cross (ICRC). The issue is of ‘direct participation’ of those who would normally be classified as civilians which would deprive them of the protection of their right to life but for the purposes of this chapter, the detention of these persons is also an issue particularly with respect to the so called ‘war on terror’. Second, this chapter focuses on the important issue of detention and discusses
the issue of prisoner of war status – limited to the situation of international armed conflict. Detention issues in non-international armed conflict are part of domestic law but, notwithstanding the domestic regime, there are important international legal obligations both in international humanitarian law and human rights law that apply to detainees. This part of the chapter discusses the relevant jurisprudence from the European Court of Human Rights specifically with reference to the conflict in southeast Turkey as, although the standards of the court may be slightly different, the discussion of detention issues is equally pertinent to the humanitarian law guarantees.
