By Byers, Michael
The Humanist , Vol. 62, No. 2
Prisoners of War--Laws, Regulations and Rules
War (International Law)--Cases
Human Rights--Laws, Regulations and Rules
United States Foreign Relations
Rumsfeld, Donald--Political activity
Al-Qaeda--Officials and employees
United States--Laws, regulations and rules
Would you want your life to be in hands of U.S. Secretary of Defence Donald Rumsfeld? Hundreds of captured Taliban and al-Qaeda 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 United States. 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 U.S. Constitution and cannot appeal to U.S. 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 [January] 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 U.S. would still have to comply.
The Pentagon might also argue that al-Qaeda 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-Qaeda members seem not to have done. But the removal of the Taliban regime was justified on the basis that al-Qaeda 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. …