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The legal status of Guantanamo detainees

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  1. Introduction - Case abstract
  2. Strategic Audit
    1. Current mission
    2. Current objectives
    3. Current strategies
  3. External environment
  4. Internal environment
  5. Strategic alternatives
    1. Continue Related Diversification Strategy via Acquisitions
    2. Expand Retailing Stores in Latin America & Beyond
    3. Introduce New Products in Current Retail Locations
  6. Recommendation
  7. Implementation

"We can judge the degree of civilization of a nation by visiting its prisons," wrote F. Bolopion Dostievski in his book 'Guantanamo, the Prison is Away", which was written after his visit to Guantanamo Bay, Cuba, where the United States imprisoned its 'enemy combatants' captured in Afghanistan. The terrorist attacks on September 11, 2001, against two towers, namely World Trade Center in New York and the Pentagon, and the number of casualties they caused strongly destabilized state. After the attack the U.S. started fighting against terrorism. The war, which is termed as 'war against terrorism' by the then President Bush, mainly targeted the terrorist organization Al Qaeda, started on 6th October 2001; an armed conflict in Afghanistan. The attack on the state aimed to topple the top of the terrorist organization Al Qaeda, whose leader, Osama bin Laden, would be hiding in Afghanistan. The war in Afghanistan led to arrests, in the battlefield, of suspected members of Al Qaeda and Taliban. From January 11, 2002, the United States sent about 150 people captured in Afghanistan, to the U.S. naval base at Guantanamo Bay, which belongs to the United States for decades. Indeed, in 1902, the U.S. victory in the Spanish-American War ended Spanish colonial rule in Cuba, which was then occupied by the United States. A lease on the territory of the U.S. naval base at Guantanamo Bay was signed in 1903. This base built as a militarily strategic location, served as the intervention policy of the United States and became a concrete symbol of the American Communist enemy territory. Since then, the Cuban government considers the U.S. presence at Guantanamo as an illegal occupation. U.S. will no longer pay the lease and requires the return of the territory, since the contract for the base was declared illegal retroactively in the Cuban Constitution of 1976. However, this base continues to serve as field laborers in the United States, and its usefulness has resurfaced since January 2002. The number of individuals detained in this basis has now reached five hundred, belonging to forty-two different nations; over two hundred prisoners have been released, often in secrecy. Captured in Afghanistan during the fight against the Taliban regime, the first prisoners were comprised of suspected terrorists from Pakistan and other countries. These prisoners are currently detained on the basis of Military Order of the then President Bush, dated Nov. 13, 2001. The detainees were initially imprisoned in Camp X-Ray, a temporary camp in the open. The construction of a more secure camp with larger capacity, known as the 'Camp Delta', started in April 2002 and prisoners were transferred from Camp X-Ray to Camp Delta. Currently, a Camp 5 is under construction. This is a hard prison, built for hundred prisoners, reserved for inmates who are permanently sentenced by military commission, and housing a death chamber for executions. The new prison camp no longer has anything of the provisional nature of the former camps. While much has been heard of 'war', less is heard about law; the United States remained silent for a time on the status of prisoners held by them in Guantanamo. Yet, the 'war' is a phenomenon governed by international law in two ways: firstly, 'jus ad bellum' (a set of criteria that are to be consulted before engaging in war) identifies situations in which it is lawful to engage in 'war', and secondly, 'jus in bello' (Modern laws of war regarding conduct during war) regulates the conduct during the war, including international humanitarian law (IHL), protecting the victims of war. This law is now largely included in the Geneva Conventions of 12 August 1949, to which all States are parties, and their Additional Protocols of 1977, however, rejected by the United States and Afghanistan. After some hesitation and differences of opinion within its administration, the President of the United States has finally decided on 7 February 2002 that the Geneva Conventions apply to Taliban detainees but not to members of Al Qaeda. But neither the Taliban nor Al Qaeda members are not assigned the status of prisoners of war, according to the Bush administration, they are 'enemy combatants'. The United States therefore intend to selective application of the Geneva Conventions, but have always affirmed its obligation to treat prisoners humanely. The persistent refusal to give the status of prisoner of war to the prisoners of Guantanamo reflects the belief that classical concepts are inadequate in the current crisis. Indeed, terrorist organizations, such as Al Qaeda does not meet the criteria for such an application, but more importantly, their operation and action would be contrary to the principles underlying these criteria. By becoming sworn enemies of America, they have abdicated any right to be treated as normal prisoners of war protected by the Geneva Conventions. It is true that the issue of treatment of irregular combatants, that is to say, did not comply with IHL, has never really been resolved satisfactorily. It is just accepted that they are denied the status of prisoner of war and they can be prosecuted for their participation in hostilities. Given this position, the international community reacted strongly. International agencies and organizations, including many nongovernmental organizations, governments, lawyers around the world have fiercely criticized the detention system established by the United States at Guantanamo. Indeed, such detentions are not legally justified. Individuals captured in Afghanistan would be admitted to the combatants as prisoners of war protected by the Geneva Convention III, and civilians within the scope of Convention IV. There would be no intermediate category between combatant and civilian, who would escape the protection of humanitarian law in international armed conflicts, or legal gap between the Third Convention protects prisoners of war, and the Fourth Geneva Convention to civilian lives. In all cases, the prisoners of Guantanamo detainees who could be under conditions that respect human dignity and physical integrity and moral, pending a trial. In the present case, these prisoners are detained in conditions that most dubious minded denunciations of torture or inhuman treatment by certain organizations or by former prisoners themselves. Moreover, they are detained for over three years for some, and for an indefinite period, since no charges would be brought against them, without waiting for an eventual trial. These prisoners would thus be in a true 'legal black hole', traditionally excluded from the applicable IHL. Finally, the proportion of prisoners who present a 'value' in terms of intelligence would be only 25%, the U.S. has already released more than one hundred fifty people, which raises the question of the selection process of inmates sent to Guantanamo, the more that errors were committed in the selection of those released, some returned to the battlefield. Faced with so many mistakes, the question of the merits of detentions by the United States is immediately lifted. The zone of lawlessness in which people are detained by the United States is not the result of the absence of such law. It's actually a problem of interpretation of existing law. We must therefore consider whether the attacks against the United States and its aftershocks are qualified by the IHL, to identify whether it applies to this case because the applicability and implementation of this right of 'war against terrorism' is controversial, especially regarding the status of those detained by the United States in Afghanistan and transferred to its military base at Guantanamo. It is undisputed that IHL applies from the time when there is international armed conflict, hence the interest to look first at how the attacks can be classified as of 11 September and the response by the U.S. Afghanistan. Since it appears that the Guantanamo prisoners are from that conflict, it does not seem necessary to qualify the following conflicts, notably between the United States and Iraq. Then it will examine the situation of persons detained by the United States, especially to know what was their behavior before they are arrested to determine if they qualify for the status of prisoner of war. The 'war against terrorism' is definitely a new kind of war that was not envisaged when the Geneva Conventions were negotiated and signed. A careful reading of these agreements may suggest that these provisions do not apply to terrorists who engage in activities totally inconsistent with the Conventions. So the question is raised whether the terrorists were actually human. Of course, they must be treated humanely, that is incontestable. But it seems hard to admit they are entitled to the status or benefits that are restricted to lawful combatants, which could also lead to somehow legitimize their actions. Finally, if the behavior of the United States may appear questionable, it at least has the benefit of highlighting the shortcomings of existing IHL, even its ambiguities. But it does not really satisfactory answer to the question of whether the IHL has to be changed, and most importantly, in what sense. If the United Nations Secretary-General said that "terrorist acts are serious violations of human rights", he stressed the fact that the response initiated by the United States must be based on respect for fundamental rights terrorists just want to wipe because "respect for human rights and fundamental freedom and the rule of law are essential tools in the fight against terrorism, and not privileges to be sacrificed in times of tensions.? Finally, the problem is nevertheless that of respecting international law as a whole, including the United States. Its decision not to apply the Geneva Conventions only reflects the general attitude of the U.S. administration to evade international law. This fact immediately noted the virtual absence of legal protection internally and international rights. Thus, we must first note that the United States has placed the Guantanamo detainees in a true 'legal black hole' in the wake of an international armed conflict between .U.S. and Afghanistan (Part I).Such a situation unique at this time, led the international community to question the applicability of IHL to the species, to rethink the concepts previously established by it, and finally to question its viability against the new type of conflict that has proved, namely the 'war against terrorism' (Part II).

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