The United States government has defended its rules for the treatment of detainees from Afghanistan and elsewhere, in the face of criticism from human rights groups and some lawyers.

The rules, announced last week, set out the procedures for military tribunals to try captives detained in the military campaign against al Qaeda and the Taliban regime in Afghanistan. At the same time, US Defense Secretary Donald Rumsfeld made it clear that some prisoners would continue to be held without trial, or after being tried and acquitted on criminal charges.

In their final form, the tribunal rules went some way to meet the concerns that had been raised by President Bush’s initial order authorizing military commissions last November. There were provisions to make the trials public (although with the possibility of closure by the presiding officer); to establish the presumption of innocence, and require proof beyond reasonable doubt for conviction; to allow defendants the right to choose a civilian lawyer, and to cross-examine witnesses.

However, the rules do not authorize the right of appeal to a civilian court, which is a feature of courts-martial for US military personnel. Anne-Marie Slaughter, Professor of International Law at Harvard University, told Crimes of War that the absence of a right to appeal to civilian courts was "quite troubling". She warned that it undermined the notion of judicial independence, because all those overseeing the trial process would be officials of the US military, which was also the prosecuting body.

It is still unclear how many detainees may be brought before the military tribunals, or what crimes they might be charged with. However, the adminstration confirmed yesterday that it might continue to hold detainees who are not charged with specific crimes, or those who are charged and acquitted. According to Donald Rumsfeld, the US "has every right to hold enemy combatants for the duration" of the conflict.

Rumsfeld said the reason for this was "to keep them from going right back and killing more Americans and conducting more terrorist acts". The policy, he said, was "fully consistent with the Geneva Conventions and other war authorities", and was also "a matter of simple common sense". Under the Geneva Conventions, enemy captives may be held until the end of hostilities, when they must be returned to their own country.

However, it remains unclear whether the administration regards "the duration of the conflict" as referring to the war in Afghanistan or the wider campaign against terrorism. In a press conference yesterday, Rumsfeld suggested it was the latter: "The way I would characterize the end of the conflict is when we feel that there are not effective global terrorist networks functioning in the world that these people would be likely to go back to and begin again their terrorist activities."

Many legal authorities say that such an open-ended campaign does not conform to the definition of war under international law as it is currently understood. Professor Slaughter said there was not "a strong case under existing law" for such detentions, because existing law did not cover this case. She suggested that there needed to be a development of international law to cover international terrorism, but that such a development should take place "collectively and with care".

Related chapters from Crimes of War: What the Public Should Know

Due Process
Prisoners of War, Non-repatriation of
Terrorism

Related links

The Trouble with the Tribunals
The New York Review of Books, April 25, 20002

Counter-terrorism, Armed Force and the Laws of War
By Adam Roberts, Professor of International Relations, Oxford University.
Social Science Research Council

Pentagon Order on Military Commissions (PDF file)
March 21, 2002

Secretary of Defense Press Conference on Detainees
March 28, 2002

Human Rights Watch Press Release on Commission Rules
March 21,2002

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