n Comparative and International Law Journal of Southern Africa - Combatant status at Guantánamo Bay - international humanitarian law detained incommunicado

Volume 42, Issue 1
  • ISSN : 0010-4051



The inadequate application of international humanitarian law (IHL) to the 'Gitmo' detainees highlights the reality that 'modern combatants look increasingly unlike the army regulars around whom the Geneva conventions were drafted'. This fact alongside the practice of 'auto-interpretation' of IHL often results in the erroneous application of IHL. This article will unpack the foundational principles of 'distinction' and 'participation' in so far as they inform the awarding of combatant status to those detained during armed conflicts. These foundational principles will be applied to the factual scenario of the 'enemy combatants' detained at Guantanamo Bay. In exploring the situation of the Taliban and Al-Qaeda detainees this article discusses the controversial issue of the use of uniforms as a means of distinguishing military personnel from the civilian population, as well as the issue of whether combatant status can be forfeited through the use of nontraditional uniforms.

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