Inter Arma Silent Leges? Applying Humanitarian and Human Rights Law to the Swedish Citizen at Guantanamo Bay.

Abstract: Since January 2002, a Swedish citizen has been detained at the U.S. Naval Base at Guantanamo Bay in Cuba. He was captured in Pakistan during the post-September 11 war between Afghanistan and the United States and subsequently brought to Guantanamo, where he has now passed his two years imprisonment. The U.S. has pronounced that it cannot determine how dangerous he is because he is not answering questions and as a consequent of that he cannot be repatriated. The war in Afghanistan is over but the ''war against terrorism'', which the U.S. started, is still going on. The U.S. has determined that the laws of war or international humanitarian law is applicable to the ''war on terrorism''. But even during armed conflicts, to which the humanitarian law is applicable, the fundamental provisions of international human rights law remain in force. Despite the numerous criticisms from different human rights organisations, the U.S. has still not reviewed its position that the individuals at Guantanamo are not entitled to prisoner of war status and that they should continue to be detained. The U.S. opinion is that the Geneva Conventions are applicable to the Taliban detainees but that they do not fulfil the requirements of being prisoners of war. Regarding the al-Qaeda detainees the opinion is that the Geneva Conventions are not applicable because al-Qaeda is not a state party to the Conventions and as an international terrorist organisation they are not entitled to treatment as prisoners of war. When going through the provisions enabling entitlement to POW status, it seems that it cannot be clearly said that the Taliban detainees do not fulfil the requirements. Neither can it be beyond doubt that al-Qaeda detainees fall outside the protection of the Geneva Conventions. The U.S. is nevertheless refusing to let a competent tribunal, as referred to in article 5 of the Third Geneva Convention, determine the status of the detainees. The U.S. claims that it has determined the status on an individual basis but ends the discussion by saying that most of the detainees are likely to lie. This thesis looks at the U.S. detention and treatment of the Swedish citizen at Guantanamo in an international humanitarian and human rights law perspective. I would argue that the detention itself could be justified under either humanitarian law or human rights law, but the U.S. fails to treat the detainee according to those laws.