Assessing Damage, Urging Action detainees, unless charged with or convicted of pre-capture offences, would have been by law entitled to release at the cessation of active hostilities in Afghanistan114 – a result the US seemed unwilling to countenance. Other persons classified and held by the US as enemy combatants have apparently been detained in the course of an ongoing non-international armed conflict. The legal grounds governing detention in these armed conflicts are found in domestic law and international human rights law and that governing treatment of detainees in Common Article 3 and human rights law. All such detainees were entitled under human rights law to prompt judicial review of the lawfulness of their detention and to be released if that detention is found to be unlawful. The UN Human Rights Committee has stated that in order to protect non-derogable rights, such judicial review cannot be diminished by a State’s decision to derogate from the ICCPR.115 Additionally, the fact that the internal hostilities may be ongoing cannot justify indefinite detention without charge or trial which amounts to arbitrary detention in violation of human rights law. Regarding treatment, both human rights law and Common Article 3 absolutely prohibit the infliction of torture and other ill-treatment.116 While governments may try members of armed opposition groups for taking up arms and all their violent acts, Common Article 3 requires trials by “a regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples”,117 a requirement amplified in Article 6 of Protocol II. As the Panel explains in another chapter, it is increasingly accepted that human rights law generally prohibits the trial of civilians, including members of armed opposition groups, by military courts. A third category of person being held as “enemy combatants” in Guantánamo Bay and perhaps elsewhere are persons who were detained outside of situations of armed conflict. As previously noted, such person cannot in law be regarded as combatants and their detention as such is utterly arbitrary under human rights law. Such persons may be detained only if suspected of a recognisable criminal offence, and then treated as civilian criminal suspects, with the full guarantees of human rights law. Under very specific circumstances, temporary administrative detention, under judicial supervision, may be possible under a proclaimed state of emergency that threatens the life of the nation, and where such detention is strictly required to meet that threat.118 The fact that detainees were being held outside of the United States, in Guantánamo Bay, was relied upon by the Government to assert that their location placed them outside of the ambit of domestic courts, and the right to habeas corpus. The US 114 Article 118 of the Third Geneva Convention and Article 133 of the Fourth Geneva Convention. 115 See UN Human Rights Committee, General Comment No. 29, para. 16. 116 See Article 4 and Article 7, para. 2, ICCPR. 117 Common Article 3, para. 1 (d), Geneva Conventions of 1949. 118 Chapter Five, also Legal Commentary to the ICJ Berlin Declaration, Principle 6, p. 51 et seq. 59