I believe
that the Administration misread Article
4 of the Third Convention with respect to the Taliban. I think
that under any fair assessment, the Taliban constitute the armed
forces of a party to a conflict. Even our own military manuals,
and no one is citing them, but if you take a look at Air
Force Law of War Manual, it says "upon capture, any person
who does not appear to be entitled to prisoner of war status but
has committed a belligerent act is required to be treated as a prisoner
of war until his status is properly determined."
The
Administration is applying the wrong part of the Conventions. They
have invoked the provisions for irregular combatants not under Article
4-1, but under Article 4-2. They are treating them as though
they are guerrillas or partisans who were fighting for a party to
the conflict. And thats wrong in my view. The Taliban are
the armed forces of the state. As far as Im concerned, this
belies the Administrations other statements that the Taliban
are organized, they are dangerous, they have tanks, etc. I think
the Administration is definitely subverting the object and intent
of the Convention. These people are the armed forces to a conflict
and they should be judged against the standards in Article 4-1.
They have a command structure. They were fighting. The United States
clearly knew who to target which means they were distinguishable.
And the fact that members of regular armed forces may commit violations
of the laws of war or do not always comply with those does not in
effect make them non-lawful combatants. It just means that if they
have committed a war crime they enjoy no immunity from prosecution
for that war crime. They dont forfeit their status as lawful
combatants entitled to POW status because they may have committed
a war crime.
There
is a lot of misinformation coming out of the press. For example,
you can interrogate a prisoner of war for as long as you want. You
cant torture them, you cant beat them, but then you
cant do that to an unprivileged combatant either. The Administration
has done something very dangerous in stating that the Taliban are
irregular combatants and dont meet the standards of Article
4-2 and are unprivileged (combatants). In taking this stance, the
Administration has virtually said that the Talibans resistance
to US Forces who invaded their country, or that merely pointing
a gun an American or shooting at an American troop would render
them subject to a prosecution under US criminal law for murder or
attempted murder. An unprivileged combatant is a person who without
a privilege or license goes out and engages in hostilities without
having a right to do it. This is one of the things people dont
understand. The essence of prisoner of war status is that lawful
combatants authorized by a party to the conflict are entitled to
POW status because they have a license to go out and kill and destroy
the enemy. Upon capture, they are immune from prosecution for their
lawful acts of war. They could only be tried for violations of the
laws of war or other pre-capture offenses. If you are an unprivileged
combatant however, you can be punished for your mere combatancy
and each and every one of your hostile acts even if you complied
with the laws of war.
I would
make two distinctions between Al Qaeda members who are captured
in third countries and those captured in Afghanistan. Those captured
in the United States, the UK or elsewhere are essentially being
treated as law enforcement matters and are being tried under domestic
statutes and criminal law. If those Al Qaeda members would declare
prisoner of war status, it would be denied because that attack is
the work of private individuals. To make war, you have to be sanctioned
by the state and this does not appear to be the case so therefore
they will be treated as common criminals. I think the situation
is different however with respect to those Al Qaeda members who
effectively fought on the side of the Taliban once the United States
undertook military action. And the reason that is different is that
the Geneva Conventions are not conditioned on the causes of the
conflict or the causes that the people espouse. It applies equally
across the board. And in that case, I think the United States could
have said, that the Geneva Convention applies to these particular
Al Qaeda combat detainees but they were not regular members of the
Talibans armed forces. They fall under Article 4-2, and our
reading under Article 4-2, and the Administration would be right
in my view, that they belong to an organization that openly and
notoriously has as its goal targeting civilians. They have concealed
their arms on other occasions. It would be very plausible if the
Administration used that logic to deny Al Qaeda members POW status.
Again, it is still arguable, and what I would have urged the Administration
to do is go ahead and give them an Article
5 tribunal. Any Article 5 tribunal is going to deny them POW
status. In point, I support the Administrations determination
on Al Qaeda, but I disagree with their reasons.
If
the Administration had listened to the experts on this, they would
have said, "Hey guys, this has real implications for us if
we dont give prisoner of war status. We risk nothing. We can
find that Al Qaeda are unprivileged combatants and apply the convention
to them. Well even give them an Article 5 tribunal."
In
the case of the Taliban, whether we like them or not is irrelevant
to the application of the Convention. And if they were involved
in September 11 or other kinds of acts and if they constitute either
violations of US law or international law, then we can still subject
them to trial and still give them prisoner of war status. A good
example is Noriega. Noriega was held as a prisoner of war. Nonetheless,
he was tried on drug trafficking charges that did not come within
the jurisdiction of either a military commission or a military tribunal
and therefore he was tried for that offense in a US District Court,
but he is held as a prisoner of war to this day.
By
denying the detainees prisoner of war status, the US finds itself
at variance with the International Committee of the Red Cross, with
most experts, and with most of our European allies. But the real
danger is that the kind of rhetoric that was used the Geneva
Conventions dont apply to this kind of war and that
we will selectively apply the Conventions can open up problems
for us down the line in military actions that we surely will be
undertaking where people in effect will try to say the same thing
about US special forces.
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