Crimes of War

January 2002

Curtis Doebbler,
Professor of Human Rights Law at American University in Cairo, served as an advisor to the Taliban on the laws of war.
Interviews and Introduction by Stacy Sullivan

The detainees in Guantanamo are POWs. Some people say there is some ambiguity, but Article 4 of the Third Geneva Convention states that until a competent tribunal determines whether or not they are POWs, they are, prima facie, entitled to POW status. This means that they are POWs right now, and until a tribunal decides differently.

The detainees are combatants, which would make them POWs because they are members of an armed group that is under the command structure of the government, or other regular armed forces in Afghanistan. The United States claimed that these men were picked up in combat, in Afghanistan, which is evidence that they were indeed combatants.

The United States and Great Britain initially claimed that Al Qaeda and the Taliban were indistinguishable. Under international law, the Taliban was a government, and while it was not recognized by everyone, it de facto, met the legal criteria for a government because it controlled most of the territory of Afghanistan. If the US is arguing that Al Qaeda and the Taliban are one in the same, then they are automatically declaring that both the Taliban and Al Qaeda detainees are POWs.

It is necessary to determine the status of the detainees, and until a competent tribunal declares that they are not POWs, then they are POWs. After this determination is made you can have legal wrangling over the criteria in the Geneva Conventions. It is important to remember that the prisoners are entitled to respect of their human rights whether they are POWs or not. For example under the American Declaration of the Rights of Man and, I would also suggest, customary international law, they are entitled to a fair trial irrespective of whether or not they are POWs or war criminals. With that in mind, they have the right not to have their dignity affronted, to have access to legal counsel, and other such rights that one could argue have been violated.

There are consequences of declaring the detainees POWs. Doing so requires that they be repatriated after the war unless they are accused of war crimes. It appears that the ICRC thinks that the Taliban have not committed any major violations of humanitarian law. It is even likely that the Taliban respected the laws of war more than the US and its allies did.

If they are tried, you have got to find something to try them for, and I’m not sure the United States has enough evidence in order to do so. They have to have committed crimes that violate United States law, or crimes against humanity if they are to be tried in the United States. And if you’re going to try them, you have to provide due process, as spelled out both by the Geneva Conventions and under international human rights law.

A major point that every human rights group in the United States has missed is the relevance of general international law regarding the use of force to the human rights of detainees, or anyone else affected by the hostilities in Afghanistan. If the United States attacked Afghanistan illegally, then every action harming the basic rights of Afghans is a violation of international human rights law. We don’t even have to get to the application of humanitarian law. The United States is in violation of the most basic rights of all Afghans who have been seriously injured by the armed conflict. The lack of time given to this important point is especially surprising because it seems quite clear that the United States used force against Afghanistan in violation of Article 2(4) of the United Nations Charter and the Pact of Paris from 1928, and not in self-defense, which cannot be exercised in response to an attack by a non-state actor.