Assessing Damage, Urging Action rights violations, though it is vital that the incoming US administration conduct effective, independent and impartial investigations into those alleged violations and breaches of humanitarian law and secure remedies accordingly. Nevertheless, the Panel believes that certain emblematic violations and practices flowing from the war paradigm merit review, and examined below are issues of arbitrary detention, denial of fair trial, and torture and ill-treatment of detainees.107 5.1 Persons captured or detained: a regime of arbitrary detention It is reliably reported that thousands of persons have been detained as enemy combatants in the ”war on terror”, including the more than 800 detainees to pass through the US detention facility at Guantánamo Bay, and the nearly 250 still detained at the time of writing. Many of these persons designated enemy combatants were captured during genuine armed conflicts, while others were detained outside of any hostilities, and some of these cases were brought to the attention of the Panel directly in the course of its Hearings, both in the USA and elsewhere.108 There is considerable controversy surrounding what law governed their status and/or the basis for their detention and whether the applicable law was properly applied. For example, in the wake of its military intervention in Afghanistan in 2001, the US designated captured Taliban and al-Qaeda fighters as “unlawful” or “enemy” combatants and denied them all prisoner-of-war (POW) status under the Convention (III) relative to the Treatment of Prisoners of War (Third Geneva Convention), or protection as civilians under the Convention (IV) relative to the Protection of Civilian Persons in Times of War (Fourth Geneva Convention). Subsequent to its disqualifying these detainees from de jure protection under the Geneva Conventions, the US administration indicated that they, as well as Guantánamo detainees, would be treated “humanely and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles of Third Geneva Convention of 1949.” 109 Many legal experts, and the International Committee of the Red Cross (ICRC), disputed the legality of this action, maintaining that the Geneva Conventions’ comprehensive system of protection mandates that combatants, disqualified from POW status under the Third Geneva Convention, be accorded protection under the Fourth Geneva Convention, provided they meet the nationality criteria stipulated in 107 Other illicit practices arising from the so-called “war on terror” are addressed elsewhere in the report (see, for example, extraordinary rendition discussed in Chapter Four). 108 These include, for example, the case of German resident, Murnat Kurnaz, originally detained in Pakistan, transferred via Afghanistan to Guantánamo Bay until he was finally released in 2006 to Germany. For further details of the case, including on the cooperation of the German authorities, see oral testimony by his lawyer, Bernard Docke, EJP European Union Hearing. 109 The White House, “Fact Sheet, Detainees at Guantánamo: US policy”, 7 February 2002, available at www. whitehouse.gov/news/releases/2002/03/20020207-13.html. 57