more on the 'unlawful combatants'

["Ian Murray" <seamus2001@xxxxxxxxx>]

US doesn't have the right to decide who is or isn't a
PoW

Ignore the Geneva convention and we put our own
citizens in peril

Michael Byers
Monday January 14, 2002
The Guardian

Would you want your life to be in the hands of US
secretary of defence Donald Rumsfeld? Hundreds of
captured Taliban and al-Qaida 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 US. 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 US constitution
and cannot appeal to US 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 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 US would still have to comply.

The Pentagon might also argue that al-Qaida 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-Qaida members seem not to have done. But the removal
of the Taliban regime was justified on the basis that
al-Qaida 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.

This too is the position of the International Committee
of the Red Cross, which plays a supervisory role over
the convention. The Red Cross and Amnesty International
have both expressed concerns over the treatment of the
detainees.

The authorities at Guantanamo Bay have prohibited
journalists from filming the arrival of the detainees
on the basis that the convention stipulates PoWs "must
at all times be protected against insults and public
curiosity". The hypocrisy undermines the position on
PoW status: you can't have your cake and eat it.

Even if the detainees were not PoWs, they remain human
beings with human rights. Hooding, even temporarily,
constitutes a violation of the 1984 convention against
torture and cruel, inhuman or degrading treatment.
Apart from causing unnecessary mental anguish, it
prevents a detainee from identifying anyone causing
them harm. Forcefully shaving off their beards
constitutes a violation of the right to human dignity
under the 1966 international covenant on civil and
political rights. Forcefully sedating even one detainee
for non-medical reasons violates international law.
Although strict security arrangements are important in
dealing with potentially dangerous individuals, none of
these measures are necessary to achieving that goal. If
human rights are worth anything, they have to apply
when governments are most tempted to violate them.

There are many reasons why these and other violations
are unacceptable. The rights of the detainees are our
rights as well. Yet international law can be modified
as a result of state behaviour. If we stand by while
the rights of the detainees are undermined, we, as
individuals, could lose.

British and American soldiers and aid workers operate
around the world in conflict zones dominated by
quasi-irregular forces. The violations in Guantanamo
Bay will undermine the ability of our governments to
ensure adequate treatment the next time our fellow
citizens are captured and held. Respecting the
presumption of PoW status and upholding the human
rights of detainees today will help to protect our
people in future.

The US has occupied much of the moral high ground since
September 11, and benefited enormously from so doing.
Widespread sympathy for the US has made it much easier
to freeze financial assets and secure the detention of
suspects overseas, as well as secure intelligence
sharing and military support. The sympathy has also
bolstered efforts to win the hearts and minds of
ordinary people in the Middle East, south Asia and
elsewhere. That might just have prevented further
terrorist attacks.

Ignoring even some of the rights of those detained in
Guantanamo Bay squanders this intangible but invaluable
asset, in return for nothing but the fleeting
satisfaction of early revenge. The detainees should be
accorded full treatment as PoWs and, if not released in
due course, tried before regular military or civilian
courts - or even better, an ad hoc international
tribunal. As the world watches, vengeance is ours. But
so, too, are civilised standards of treatment and
justice.

· Michael Byers teaches international law at Duke
University, North Carolina. He is currently a visiting
fellow at Keble College, Oxford.

byers@xxxxxxxxxxxx