
In this handout photo from the
Department of Defense Taliban and al-Qaida detainees in orange
jumpsuits sit in a holding area under the watchful eyes of military
police at Camp X-Ray at Naval Base Guantanamo Bay, Cuba, during
in-processing to the temporary detention facility on Jan. 11,
2002. (AP Photo/Shane T.McCoy, U.S. Navy) |
When
Taliban and Al Qaeda detainees at Camp X-ray in Guantanamo Bay were
pictured kneeling and shackled in chain-link cages in January, European
politicians and human rights activists angrily alleged that the
United States was in clear violation of the Geneva Conventions,
which govern how a detaining power must treat prisoners of war.
The Third Geneva Convention states that POWs must be spared "outrages
upon personal dignity," "humiliating and degrading treatment,"
as well as "insults and public curiosity," - all of which
was violated in the above photograph released by the US Department
of Defense.
The
Bush Administration promptly announced that it did not consider
the captives to be POWs, but rather "unlawful combatants."
However, denying the detainees POW-status does not change the way
the United States is legally obligated to treat them. Both the Geneva
Conventions and human rights law mandate that that Washington
treat detainees humanely regardless of whether or not they are considered
to be POWs. However, by declaring that the detainees are "unlawful
combatants," the Bush Administration is effectively saying
that the Al-Qaeda and Taliban detainees are not entitled to the
protections specified under the Geneva Conventions which provide
them with immunity from prosecution for lawful acts of war.
That
announcement sparked further outrage and allegations that the United
States was flouting international law. In February, the White House
reaffirmed its position that it did not consider the detainees to
be POWs. However, the Administration said that it would treat the
detainees in accordance to the standards set forth by the Geneva
Conventions, which would entitle the detainees to visits from the
International Committee of the Red Cross, medical care, the right
to practice their religion, the opportunity to communicate with
their families as well as other amenities.
To
shed light on whether or not the Al Qaeda and Taliban detainees
in Guantanamo qualify for POW status, the Crimes of War Project
interviewed a number of legal experts. Most of our experts disagreed
with Bush Administration. They all cited Article
4 of the Third Geneva Convention, which defines prisoners of
war as "Members of the armed forces of a Party to the conflict
as well as members of militias or volunteer corps forming part of
such armed forces." According to the Convention, members of
a regular army are automatically entitled to POW status, whereas
members of militias or volunteer corps must meet the following four
criteria:
- Having
a chain of command
- Wearing
a uniform or some sort fixed or distinctive sign
- Carrying
their arms openly
- Conducting
their operations in accordance with the laws and customs of war
Most
of our experts said they believed that the Taliban fell under the
first category that of being the regular army of Afghanistan
and are therefore entitled to POW status.
The
Bush Administration, however, claims that the Taliban fall under
the category of irregular forces, and must therefore be subject
to meeting the four criteria.
"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," said Robert
Goldman, professor of law and co-director of the Center
for Human Rights and Humanitarian Law at the Washington College
of Law, American University.
But
even according to the criteria specified for irregular forces, most
of our experts believe the Taliban detainees, and possibly Al Qaeda
as well, although there is less agreement on this point, would be
entitled to POW status. They cited Article
5 of the Third Geneva Convention, which says that if there is
any doubt as to whether or not the detainees meet the conditions,
then they should be granted POW status until a "competent tribunal"
determines otherwise.
"We
dont have the facts. We dont know to what extent these
people had a proper command structure, wore some sort of distinguishing
features and complied with the laws of armed conflict. We just dont
know," said APV Rogers, OBE,
a retired major general in the British Army and recognized expert
on the laws of war.
Curtis
Doebbler, Professor of Human Rights Law at American University
in Cairo, who served as an advisor to the Taliban government on
the laws of war and believes that the Taliban, unlike Al Qaeda,
do meet the criteria enumerated in Article 4. But he agreed that
we do not have all of the facts. "The first thing is to determine
the status of the detainees, and until a competent tribunal declares
that they are not POWs, then they are. After that, you can have
legal wrangling over the criteria in the Geneva Conventions,"
he said.
The
Bush Administration, by contrast, is claiming that there is no doubt.
In its view, neither Al Qaeda nor the Taliban are eligible for POW
status because they did not wear uniforms or otherwise "distinguish
themselves from the civilian population of Afghanistan" or
"conduct their operations in accordance with the laws and customs
of war"an argument that is disputed by the majority of
our experts.
Most
of our experts believe that the United States had little to gain
by denying the detainees POW status. All disagreed with assertions
by the media that giving the detainees POW status would prohibit
the United States from interrogating the Al Qaeda and Taliban soldiers.
They acknowledged that POWs are only obliged to give their name,
rank, serial number and date of birth, but they said nothing in
the Convention precludes the detaining power from asking for more.
They
also disagreed with assertions that granting the detainees POW status
would mean that the United States would have to release them upon
the cessation of hostilities. The Geneva Conventions state that
POWs must be released unless they are charged with war crimes. Nothing
in the Conventions would preclude Washington from charging them
and keeping them in custody until they could face a judicial process.
Some
of our experts said they feared the Administrations decision
could come back to haunt US soldiers should they ever be captured
by a foreign enemy, particularly special forces who usually dont
wear uniforms. "I think we may have set a bad precedent. The
drawback is that we have given the other side some ammunition when
they capture our people," said H.Wayne
Elliott, a retired US Lieutenant colonel and former chief
of the international law division at the US Armys Judge Advocate
Generals School.
However,
Michael Noone, a professor
of international and comparative law at Catholic University of America
and a former Judge Advocate in the US Air Force, disagreed. "The
kinds of people that we are liable to be confronting in these kinds
of wars are not likely to follow the Conventions anyway. Its
arbitrary and capricious," he said.
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