2. The Third Geneva Convention Requires The Repatriation Of Seriously Ill Detainees
In addition to domestic law, it is appropriate to look to “longstanding law-of-war principles” to assist in determining the rights of Guantanamo detainees. See Hamdi, 542 U.S. at 521; Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006) (“Common Article 3 [of the Geneva Conventions] ... affords some minimal protection ... to individuals associated with neither a signatory nor even a nonsignatory ‘Power’ who are involved in a conflict ‘in the territory of’ a signatory.”). ...
...
The government has taken a similar position:
“Principles derived from law-of-war rules governing international armed conflicts, therefore, must inform the interpretation of the detention authority Congress has authorized for the current armed conflict.”
Respondents’ Mem. Regarding The Government’s Detention Authority Relative To Detainees Held At Guantanamo Bay, In Re Guantanamo Bay Detainee Litigation, Misc. No. 08-442 (TFH) (D.D.C. March 13, 2009) 1 (Dkt. No. 1689) (attached hereto as Exhibit C); id. 6, 9 (citing to the Third Geneva Convention).
The Third Geneva Convention requires that certain prisoners be repatriated directly to their home countries:
(1) Incurably wounded and sick whose mental or physical fitness seems to have been gravely diminished.
(2) Wounded and sick who, according to medical opinion, are not likely to recover within one year, whose condition requires treatment and whose mental or physical fitness seems to have been gravely
diminished.
(3) Wounded and sick who have recovered, but whose mental or physical fitness seems to have been gravely and permanently diminished.
Third Geneva Convention, art. 110. This repatriation requirement is grounded in the principle that seriously ill detainees “are no longer likely to take part in hostilities against the Detaining Power.” 1 Jean-Marie Henckaerts & Louise Doswald-Beck, Customary International Humanitarian Law: Rules 345 (Cambridge Univ. Press 2005).
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