United States of America
Practice Relating to Rule 128. Release and Return of Persons Deprived of Their Liberty
Section A. Release and return without delay
The US Field Manual (1956) reproduces Articles 109, 118 and 119 of the 1949 Geneva Convention III and Articles 132 and 134 of the 1949 Geneva Convention IV.
The US Air Force Pamphlet (1976) provides: “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” It further stresses the obligation of the parties to the conflict to repatriate seriously wounded and sick prisoners of war.
In the Hamdi case in 2004, involving a US citizen being detained indefinitely as an “enemy combatant”, the US Supreme Court reversed the dismissal of a habeas corpus petition by a lower court, recognized the power of the government to detain “enemy combatants”, but ruled that detainees who are US citizens must have the ability to challenge their detention before a neutral decision-maker. On the matter of the release and return of persons deprived of their liberty, the Court stated:
It is a clearly established principle of the law of war that detention may last no longer than active hostilities. See
Article 118 of the Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949,  6 U. S. T. 3316, 3406, T. I. A. S. No. 3364 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities”). See also Article 20 of the Hague Convention (II) on Laws and Customs of War on Land, July 29, 1899, 32 Stat 1817 (as soon as possible after “conclusion of peace”); Hague Convention (IV), supra
, Oct. 18, 1907, 36 Stat 2301 (“conclusion of peace” (Art. 20)); Geneva Convention, supra
, July 27, 1929, 47 Stat 2055 (repatriation should be accomplished with the least possible delay after conclusion of peace (Art. 75)); Paust, Judicial Power to Determine the Status and Rights of Persons Detained without Trial, 44 Harv. Int’l L. J. 503, 510-511 (2003) (prisoners of war “can be detained during an armed conflict, but the detaining country must release and repatriate them ‘without delay after the cessation of active hostilities,’ unless they are being lawfully prosecuted or have been lawfully convicted of crimes and are serving sentences” (citing Arts. 118, 85, 99, 119, 129, Geneva Convention (III), 6 U. S. T., at 3384, 3392, 3406, 3418)).
The Noriega case in August 2007 involved the former general and head of Government of Panama who had been removed from power during the US invasion of Panama in 1989, detained as a prisoner of war, tried in the United States on drug trafficking, racketeering and money-laundering charges and sentenced to a term of imprisonment in 1992. With this term of imprisonment due to expire in September 2007 and with France having requested his extradition on money-laundering charges, for which he had been convicted in absentia, Noriega (still with prisoner-of-war protection) petitioned the Court for writs of habeas corpus, mandamus and prohibition. In denying this application, the Court stated:
In conclusion, the Court notes again that “[i]n order to set the proper example and avoid diminishing the trust and respect of other nations”, the United States must honor fully its obligations according to the Convention [1949 Geneva Convention III]. Respect is earned by being fair and just in the administration of the law. The Defendant … was convicted as to a number of extremely serious crimes in this country and has been charge[d] elsewhere with serious crimes. Thus his present appearances notwithstanding, a strict adherence to the terms of the Convention, both as to the letter and the spirit of the Convention, does not mandate immediate repatriation but rather supports a decision that Defendant must face those charges, which are legitimately brought against him by other parties to the Convention, so long as our international obligations under the Convention are being met. Based upon the circumstances and argument presented by the parties, it appears that in this specific instance examined today as to this very unique Defendant, the United States is doing so.
In a footnote to this decision, the Court further noted:
The decision today is also consistent with Articles 5 and 85 of the Convention, as the United States has represented that Defendant will retain his rights as a POW [prisoner of war] while in France’s custody, i.e. presumably through final repatriation.
On 7 September 2007, the Court lifted a temporary stay on the Defendant’s extradition to France that had been granted two days earlier, noting that “nothing from the Defendant compels this Court to change its prior conclusion that the Convention [1949 Geneva Convention III] does not prevent legitimate extraditions conducted in compliance with Article 12 [of that Convention]”.
In the Noriega case in April 2009, the Court of Appeals for the Eleventh Circuit denied the appellant’s petition for a writ of habeas corpus. The Court held that not only does the Military Commissions Act (2006) preclude application of Article 118 of the 1949 Geneva Convention III (concerning repatriation of prisoners of war), but that Geneva Convention III does not prohibit extradition of prisoners of war to another State Party to the Geneva Conventions. The Court stated:
Extradition is an executive function derived from the President’s power to conduct foreign affairs, and the judiciary historically has played a limited role in extradition proceedings.
The United States’ authority to extradite [the appellant] comes from the United States’ extradition treaty with France. The federal extradition statute generally permits extradition when based on a treaty or convention. See 18 U.S.C. § 3184. Article 1 of the extradition treaty between the United States and France, entitled “Obligation to Extradite,” states that “[t]he Contracting States agree to extradite to each other, pursuant to the provisions of this Treaty, persons whom the competent authorities in the Requesting State have charged with or found guilty of an extraditable offense.” … The offense of which [the appellant] has been convicted in absentia in France, which corresponds to money laundering in the United States, undoubtedly falls within the purview of the treaty.
We find it unnecessary to resolve the question of whether the  Geneva Conventions are self-executing, because it is within Congress’ power to change domestic law, even if the law originally arose from a self-executing treaty. … That is, because “‘an Act of Congress … is on a full parity with a treaty, … [and] when a statute which is subsequent in time is inconsistent with a treaty, the statute to the extent of conflict renders the treaty null.’” Breard v. Greene, 523 U.S. 371, 376, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998) … Thus, as discussed below, while the United States’ international obligations under the Geneva Conventions are not altered by the enactment of § 5 of the MCA [Military Commissions Act (2006)], Congress has superseded whatever domestic effect the Geneva Conventions may have had in actions such as this.
The parties’ dispute centers on the extent to which § 5 removes an individual’s ability to invoke the Conventions in a civil action against the United States, including a habeas proceeding. Section 5 of the MCA provides:
No person may invoke the Geneva Conventions or any protocols thereto in any habeas corpus or other civil action or proceeding to which the United States, or … agent of the United States is a party as a source of rights in any court of the United States or its States or territories.
[The appellant] maintains that while under § 5 he cannot invoke the Third Geneva Convention as a source of individual rights in a judicial proceeding, “his right to enforce the provisions of the Geneva Convention against the Secretary of State, the Bureau of Prisons, or the Department of Justice [is] in no way abrogated.” (Appellant’s Reply Br. 15.) Thus, [the appellant] argues that article 118 of the Third Geneva Convention mandates that he be immediately repatriated to Panama, as his term of imprisonment in the United States is complete. See Third Geneva Convention art. 118 (“Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.”). The Government maintains that § 5(a) of the MCA precludes invocation of the Third Geneva Convention in this proceeding, as § 5(a) “codified the principle that the Geneva Conventions [are] not judicially enforceable by private parties,” and that regardless, the Third Geneva Convention authorizes his continued detention pending his extradition for criminal proceedings in France. (Appellees’ Br. 14 n.6, 15.)
Despite [the appellant]’s arguments to the contrary, it appears that [he] is invoking the Third Geneva Convention as a source of rights – the alleged right to immediate repatriation under article 118. While the legal effect of § 5 has not been widely discussed, the plain language of § 5 prohibits exactly this type of action. The district court appears to have read § 5 similarly, noting that § 5 “attempts to remove entirely the protections of the Convention from any person, even a citizen of the United States, in any American courtroom whenever the United States is involved.” Noriega II, 2007 WL 2947572, at *4. …
These readings of § 5(a) are consonant with the MCA’s legislative history, which further suggests that the express language of § 5 was understood to preclude individuals from invoking the Geneva Conventions as a source of rights. …
Accordingly, the plain language of § 5 of the MCA, which is clearly supported by its legislative history, precludes Noriega’s Geneva Convention claims. As the Geneva Convention is [the appellant]’s only substantive basis for relief he has failed to state a claim upon which habeas relief could be granted.
Articles 118 and 119 of the Third Geneva Convention set forth the permissible duration for the detention of prisoners of war. Article 118 provides, in pertinent part, that “[p]risoners of war shall be released and repatriated without delay after the cessation of active hostilities.” Third Geneva Convention art. 118. Article 119 further qualifies that “[p]risoners of war against whom criminal proceedings for an indictable offence are pending may be detained until the end of such proceedings, and, if necessary, until the completion of the punishment. The same shall apply to prisoners of war already convicted for an indictable offence.” Id. at art. 119. As a result of [the appellant]’s conviction in the United States, article 119 authorized the United States to prolong his detention for the duration of his sentence – beyond the cessation of hostilities between the United States and Panama. Nowhere, however, is it suggested that a prisoner of war may not be extradited from one party to the Convention to face criminal charges in another. Nor do the stated purposes of articles 118 and 119, as reflected by their commentary, preclude detention in these circumstances: article 118 is intended to prohibit “prolong[ed] war captivity,” while article 119 unambiguously reflects the intention of the drafters to permit detention of prisoners of war subject to criminal proceedings. …
Article 12 [of 1949 Geneva Convention III] further supports the principle that repatriation is not automatic. Article 12 provides that “[p]risoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention.” Third Geneva Convention art. 12. As France and the United States are both parties to the Third Geneva Convention, and “the United States sought and obtained from the Republic of France specific information regarding all of the rights that the defendant will be guaranteed by France upon his extradition,”
Noriega III, 2007 WL 2947981, at *1, these conditions have been satisfied. The text of article 12 imposes no further limitations on the ability to extradite prisoners of war, and nothing in article 12 implies that a contracting party cannot abide by a valid extradition treaty and extradite a prisoner of war to another contracting party simply because the person is a prisoner of war.
[The appellant] maintains, however, that the omission of the term “extradition” in article 12 demonstrates that extradition is not permitted under the article, and that the district court erred in looking to article 45 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 [Geneva Convention IV], 6 U.S.T. 3516, 75 U.N.T.S. 287 (“Fourth Geneva Convention”), to define the term “transfer” as used in article 12 of the Third Geneva Convention. While article 12 of the Third Geneva Convention is silent as to extradition, article 45 of the Fourth Geneva Convention, which parallels article 12 and provides for the transfer of civilians between parties to the Convention, specifically notes that nothing in this article “constitute[s] an obstacle to the extradition, in pursuance of extradition treaties concluded before the outbreak of hostilities, of protected persons accused of offences against ordinary criminal law.” Fourth Geneva Convention art. 45. The district court noted the commentary’s definition of the term “transfer” as used in article 45 as “internment in the territory of another Power, repatriation, the returning of protected persons to their country of residence or their extradition.” Noriega II, 2007 WL 2947572, at *2 (quoting 4 Int’l Comm. Of Red Cross, Commentary: Geneva Convention Relative to the Protection of Civilian Persons in Time of War 266 (J. Pictet ed.1958)). We agree with the district court that while the purposes behind the Third and Fourth Geneva Conventions may be different, it is still “compelling that the convening parties expressed an understanding of the term ‘transfer’ which included extradition.” Noriega II, 2007 WL 2947572, at *2. To conclude otherwise would mean that a country would be obligated to extradite a civilian, but not a prisoner of war, when they are facing identical criminal charges. We are hesitant to imply such an inconsistent result, particularly when both articles permit the transfer of prisoners of war or civilians under the same limited restraints.
Accordingly, should any doubt exist as to the principal holding here, [the appellant]’s habeas petition would also be denied because extradition would not violate [his] rights under the Third Geneva Convention.
[emphasis in original; footnotes in original omitted]
Omar Khadr, a Canadian citizen born on 19 September 1986, had been captured in Afghanistan in July 2002 and detained Guantanamo Bay Naval Base, Cuba, since October 2002. In September 2007, the Khadr case (US Court of Military Commission Review) resulted from an appeal by the Government after the military judge presiding over Khadr’s military commission trial had dismissed all charges against him without prejudice – a ruling based upon the judge’s determination that the military commission lacked personal jurisdiction over Khadr. The basis for that ruling had been the Appellant’s failure to properly determine Khadr’s status as an “alien unlawful enemy combatant” before his Combatant Status Review Tribunal (CSRT). The judge ruled that this was an indispensable prerequisite to the military commission’s ability to exercise personal jurisdiction under the Military Commissions Act 2006 (MCA), further stating that “the military commission is not the proper authority, under the provisions of the MCA, to determine that Mr. Khadr is an unlawful enemy combatant in order to establish initial jurisdiction for this commission to try Mr. Khadr”.
In a judgment that affirmed the military judge’s conclusion that Khadr’s CSRT classification in 2004 as an “enemy combatant” was insufficient to establish the military commission’s criminal jurisdiction over him but reversed the military commission’s ruling that it lacked authority to hear evidence on, and ultimately decide, the matter of Khadr’s “unlawful enemy combatant status”, the Court stated that “[a]t the conclusion of the armed conflict, lawful combatants who are held as prisoners of war are entitled to be safely and expeditiously repatriated to their nation of origin”.
In the Al-Bihani case in January 2010, involving an appeal by a Yemeni citizen held in detention at Guantánamo Bay since 2002 for the denial of a writ of habeas corpus by a district court, the US Court of Appeals for the District of Columbia affirmed the order of the lower court, stating the following regarding the appellant’s claim that a cessation of hostilities required his release from detention under international law:
With the government’s detention authority established as an initial matter, we turn to the argument that [the appellant] must now be released according to longstanding law of war principles because the conflict with the Taliban has allegedly ended. See Hamdi Hamdi v. Rumsfeld, 542 U.S. 507] 521. [The appellant] offers the court a choice of numerous event dates – the day Afghans established a post-Taliban interim authority, the day the United States recognized that authority, the day Hamid Karzai was elected President – to mark the official end of the conflict. No matter which is chosen, each would dictate the release of [the appellant] if we follow his reasoning. His argument fails on factual and practical grounds. First, it is not clear if [the appellant] was captured in the conflict with the Taliban or with Al Qaeda; he does not argue that the conflict with Al Qaeda is over. Second, there are currently 34,800 U.S. troops and a total of 71,030 Coalition troops in Afghanistan, … with tens of thousands more to be added soon. The principle [the appellant] espouses – were it accurate – would make each successful campaign of a long war but a Pyrrhic prelude to defeat. The initial success of the United States and its Coalition partners in ousting the Taliban from the seat of government and establishing a young democracy would trigger an obligation to release Taliban fighters captured in earlier clashes. Thus, the victors would be commanded to constantly refresh the ranks of the fledgling democracy’s most likely saboteurs.
In response to this common sense observation, [the appellant] contends the current hostilities are a different conflict, one against the Taliban reconstituted in a non-governmental form, and the government must prove that [the appellant] would join this insurgency in order to continue to hold him. But even the laws of war upon which he relies do not draw such fine distinctions. The Geneva Conventions require release and repatriation only at the “cessation of active hostilities.” Third Geneva Convention [1949 Geneva Convention III] art. 118. That the Conventions use the term “active hostilities” instead of the terms “conflict” or “state of war” found elsewhere in the document is significant. It serves to distinguish the physical violence of war from the official beginning and end of a conflict, because fighting does not necessarily track formal timelines. See id art. 2 (provisions apply “even if the state of war is not recognized”), art. 118 (discussing the possibility of the cessation of active hostilities even in the absence of an agreement to cease hostilities). The Conventions, in short, codify what common sense tells us must be true: release is only required when the fighting stops.
Even so, we do not rest our resolution of this issue on international law or mere common sense. The determination of when hostilities have ceased is a political decision, and we defer to the Executive’s opinion on the matter, at least in the absence of an authoritative congressional declaration purporting to terminate the war.
According to the Report on US Practice, it is the opinio juris
of the United States that persons detained for their participation in an internal armed conflict and who are not serving a sentence of imprisonment lawfully imposed should be released or repatriated without delay at the end of active hostilities. Priority in release should be given to prisoners with special needs, such as the elderly and the wounded and sick. The report further states that “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3” of the 1949 Geneva Conventions. It also notes: “It is the opinio juris
of the US that persons detained in connection with an internal armed conflict are entitled to humane treatment as specified in Articles 4, 5 and 6 [of the 1977 Additional Protocol II].”