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US doesn't have the right to decide who is or isn't a PoW
Ignore the Geneva convention and we put our own citizens in peril
Michael Byers
Sunday January 13 2002
The Observer
Would you want your life to be in the hands of US secretary of defence
Donald Rumsfeld? Hundreds of captured Taliban and al-Qaida fighters
don't have a choice. Chained, manacled, hooded, even sedated, their
beards shorn off against their will, they are being flown around the
world to Guantanamo Bay, a century-old military outpost seized during
the Spanish-American war and subsequently leased from Cuba by the
US. There, they are being kept in tiny chain-link outdoor cages,
without mosquito repellent, where (their captors assure us) they are
likely to be rained upon.
Since Guantanamo Bay is technically foreign territory, the detainees
have no rights under the US constitution and cannot appeal to US
federal courts. Any rights they might have under international law
have been firmly denied. According to Rumsfeld, the detainees "will be
handled not as prisoners of war, because they are not, but as unlawful
combatants".
This unilateral determination of the detainees' status is highly
convenient, since the 1949 Geneva convention on the treatment of
prisoners of war stipulates that PoWs can only be tried by "the same
courts according to the same procedure as in the case of members of
the armed forces of the detaining power". The Pentagon clearly intends
to prosecute at least some of the detainees in special military
commissions having looser rules of evidence and a lower burden of
proof than regular military or civilian courts. This will help to
protect classified information, but also substantially increase the
likelihood of convictions. The rules of evidence and procedure for the
military commissions will be issued later this month by none other
than Donald Rumsfeld.
The Geneva convention also makes it clear that it isn't for Rumsfeld
to decide whether the detainees are ordinary criminal suspects rather
than PoWs. Anyone detained in the course of an armed conflict is
presumed to be a PoW until a competent court or tribunal determines
otherwise. The record shows that those who negotiated the convention
were intent on making it impossible for the determination to be made
by any single person.
Once in front of a court or tribunal, the Pentagon might argue that
the Taliban were not the government of Afghanistan and that their
armed forces were not the armed forces of a party to the
convention. The problem here is that the convention is widely regarded
as an accurate statement of customary international law, unwritten
rules binding on all. Even if the Taliban were not formally a party to
the convention, both they and the US would still have to comply.
The Pentagon might also argue that al-Qaida members were not part of
the Taliban's regular armed forces. Traditionally, irregulars could
only benefit from PoW status if they wore identifiable insignia, which
al-Qaida members seem not to have done. But the removal of the Taliban
regime was justified on the basis that al-Qaida and the Taliban were
inextricably linked, a justification that weakens the claim that the
former are irregulars.
Moreover, the convention has to be interpreted in the context of
modern international conflicts, which share many of the aspects of
civil wars and tend not to involve professional soldiers on both
sides. Since the convention is designed to protect persons, not
states, the guiding principle has to be the furtherance of that
protection. This principle is manifest in the presumption that every
detainee is a PoW until a competent court or tribunal determines
otherwise.
This too is the position of the International Committee of the Red
Cross, which plays a supervisory role over the convention. The Red
Cross and Amnesty International have both expressed concerns over the
treatment of the detainees.
The authorities at Guantanamo Bay have prohibited journalists from
filming the arrival of the detainees on the basis that the convention
stipulates PoWs "must at all times be protected against insults and
public curiosity". The hypocrisy undermines the position on PoW
status: you can't have your cake and eat it.
Even if the detainees were not PoWs, they remain human beings with
human rights. Hooding, even temporarily, constitutes a violation of
the 1984 convention against torture and cruel, inhuman or degrading
treatment. Apart from causing unnecessary mental anguish, it prevents
a detainee from identifying anyone causing them harm. Forcefully
shaving off their beards constitutes a violation of the right to human
dignity under the 1966 international covenant on civil and political
rights. Forcefully sedating even one detainee for non-medical reasons
violates international law. Although strict security arrangements are
important in dealing with potentially dangerous individuals, none of
these measures are necessary to achieving that goal. If human rights
are worth anything, they have to apply when governments are most
tempted to violate them.
There are many reasons why these and other violations are
unacceptable. The rights of the detainees are our rights as well. Yet
international law can be modified as a result of state behaviour. If
we stand by while the rights of the detainees are undermined, we, as
individuals, could lose.
British and American soldiers and aid workers operate around the world
in conflict zones dominated by quasi-irregular forces. The violations
in Guantanamo Bay will undermine the ability of our governments to
ensure adequate treatment the next time our fellow citizens are
captured and held. Respecting the presumption of PoW status and
upholding the human rights of detainees today will help to protect our
people in future.
The US has occupied much of the moral high ground since September 11,
and benefited enormously from so doing. Widespread sympathy for the US
has made it much easier to freeze financial assets and secure the
detention of suspects overseas, as well as secure intelligence sharing
and military support. The sympathy has also bolstered efforts to win
the hearts and minds of ordinary people in the Middle East, south Asia
and elsewhere. That might just have prevented further terrorist
attacks.
Ignoring even some of the rights of those detained in Guantanamo Bay
squanders this intangible but invaluable asset, in return for nothing
but the fleeting satisfaction of early revenge. The detainees should
be accorded full treatment as PoWs and, if not released in due course,
tried before regular military or civilian courts - or even better, an
ad hoc international tribunal. As the world watches, vengeance is
ours. But so, too, are civilised standards of treatment and justice.
· Michael Byers teaches international law at Duke University,
North Carolina. He is currently a visiting fellow at Keble College,
Oxford.
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