58 Report of the Eminent Jurists Panel on terrorism, counter-terrorism and human rights Article 4 of that treaty.110 These critics correctly noted that these combatants, even if protected as POWs or civilians, would not enjoy any immunity from prosecution for their pre-capture offences, including terrorist acts, whether committed before or during the armed conflict.111 The Panel would also note that there is broad international consensus that no person, however classified, who is captured or detained in any armed conflict can legally be placed beyond the fundamental protections of international humanitarian law.112 All such persons, as a minimum, are entitled to the customary law standards embodied in Common Article 3 of the Geneva Conventions and Article 75 of the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) or Articles 4 and 6 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II).113 Importantly, these standards are non-derogable and, as such, cannot be waived or suspended for any reason, including considerations of military necessity. It is clear that the US’s decision to deny Taliban and al-Qaeda fighters protection under the Geneva Conventions was driven by the logic of its war paradigm. Since the paradigm is largely based on a search for intelligence, the proper application of Convention rights would have frustrated the US’s apparent desire to achieve maximum flexibility in “dealing” with these detainees. Had the US held them as prisoners of war or protected civilians, its interrogators would have known that the interrogation methods in use were banned by the Conventions, and that techniques constituting “outrages against personal dignity” were prohibited by Common Article 3 and, until 2006, were prosecutable under US law as war crimes. Furthermore, these 110 Moreover, the US failed to apply Article 5 of the 1949 Geneva Convention III relative to the Treatment of Prisoners of War (Third Geneva Convention) which creates a presumption that a person who commits a hostile act is a prisoner of war unless a competent tribunal determines otherwise on an individualised basis. 111 The ICRC has noted that “such persons may […] be tried under the domestic law of the detaining state [inter alia] for any criminal acts they may have committed. They may be imprisoned until any sentence imposed has been served”. See ICRC, International humanitarian law and terrorism: questions and answers, 5 May 2004, available at http://www.icrc.org/web/eng/siteeng0.nsf/html/5YNLEV. As the ICRC President, Jacob Kellenberg, said: “The Geneva Conventions and their Additional Protocols are not an obstacle to justice. They merely require that due process of law be applied in dealing with alleged offenders,” cited in the report of Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism, UN Doc. E/CN.4/2005/103, 7 February 2005, para. 20. 112 Report of Independent Expert on the protection of human rights and fundamental freedoms while countering terrorism, op cit., para. 20 See also report of the Special Rapporteur on Human Rights and Terrorism, Mission to the United States of America, UN Doc. A/HRC/6/17/Add.3, 22 November 2007, para. 11. 113 See for example IACHR, Report on Terrorism and Human Rights, OAS Doc. OEA/Ser.L/V/II.116, Doc. 5 rev. 1 corr., 22 October 2002, para. 77. On the customary law status of provisions of Article 75 of Protocol I, see Christopher Greenwood, “Customary Law Status of the 1977 Additional Protocols”, in Astrid Delissen and Gerald J. Tanja (eds.), Humanitarian Law of Armed Conflict: Challenges Ahead, Martinus Nijhoff, Doerdrecht [etc.], 1991, p. 103. This has previously been considered the position of the US also, see remarks of M. Matheson cited in “The Sixth Annual American Red Cross – Washington College of Law conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to 1949 Geneva Conventions”, in American University Journal of International Law and Policy, Volume 2, No. 2, 1987, p. 415.