Britain's use of GCIII, Article 5 tribunals in First Gulf War

In the current arguments - in court and out - over the Bush administration's classification of Al Qaeda, Taleban and, under new guidance circulating in draft form, other terrorist organizations as unprivileged combatants, a consistent complaint has been that individuals so designated have not necessarily received hearings on their status by a competent tribunal pursuant to Article 5 of Geneva Conventions III. I have argued elsewhere on this blog at length as to why a literal reading of Article 5 does not necessarily require such a hearing, although sound policy would ordinarily do so; a US District Court judge, with no attention or analysis of the text at issue, has found that this is a violation of international law. The Bush administration was in Federal appeals court last week arguing that the judge was wrong.

I wonder whether the Bush administration lawyers are aware of the practice of the British government in the First Gulf War.

The UK government detained a number of Iraqi men who were in the UK on legitimate business, on the grounds that they might return to Iraq and join the fighting, whether voluntarily or under the requirement of an Iraqi draft. Others were deported. The detention on purely security grounds of foreign nationals who might join the fighting has always, of course, been quite accepted. The men were delivered into military custody and they were designated as POWs (although they might have been detained as civilians under GC IV). They then contested their detention, first on the ground that they were not POWs because they were not members of the Iraqi armed forces.

Since the Iraqi detainees had not "committed a belligerent act," GC III, Article 5 did not on its face apply to them. Whatever the merits of the dispute itself, the behavior of the British government in the event was as follows:

It decided to "apply Article 5 ... by analogy, requiring the army [which held the men in custody as POWs] to create a 'competent tribunal' ... Whether or not to hold such an inquiry was at the discretion of the camp commandant and he ordered one only if he was satisfied that there was a doubt as to the status of the detainee. There was a right to make representations to the [commanding officer] and thence to the Army Board." Francoise Hampson, "The Geneva Conventions and the Detention of Civilians and Alleged Prisoners of War," Public Law (Winter 1991) (emphasis added).

In other words, British state practice in this case set up a tribunal procedure, but did not regard Article 5 as in all cases requiring a tribunal, nor did the UK government regard Article 5 as requiring a tribunal to determine whether there was "doubt," but instead left it to the military commander to determine whether there was, in the first place, doubt triggering a competent tribunal.