Are the 158 men being held at Guantanamo prisoners of war? Seldom has public debate been so confused and misplaced. No wonder: Combine ambiguous law with uncertain facts, view both through differing interpretive lenses, and what comes out is the international law equivalent of “Rashomon.”
The legal starting point is the 1949 Geneva Convention on POWs, to which the U.S., Afghanistan and nearly all other nations are parties. Aside from other categories probably not involved in Guantanamo, the Convention recognizes four distinct kinds of POWs. They include captured members of:
– Armed forces of a party to the conflict.
– Militias or volunteer corps forming part of those forces.
– Regular armed forces loyal to a government or authority not recognized by the country that detains them.
– Other militias or volunteer corps, provided they have a chain of command, wear visible insignia, carry arms openly and obey the laws and customs of war.
Captured Taliban combatants, then, appear to be POWs. They may be either armed forces of a party to the conflict–Afghanistan–or regular armed forces professing allegiance to a government–the Taliban–not recognized by the U.S.
But captured Al Qaeda fighters appear not to be POWs. While the Al Qaeda might be a “volunteer corps,” it does not obey the laws of war. Flying civilian airliners into skyscrapers violates the cardinal law of war, which prohibits targeting civilians.
However, at least one Al Qaeda battalion reportedly was incorporated into the Taliban combat forces. As part of the Afghan or Taliban armed forces, its members may qualify as POWs, even though they do not obey the laws of war.
But experts disagree. Yale University international law scholar Ruth Wedgwood, an independent scholar close to the U.S. military, contends that the tests of chain of command, insignia, carrying arms openly and obeying the laws of war apply to all categories shown above. Not so, replies Human Rights Watch executive director Kenneth Roth (a Yale law school grad). He says the Convention means what it says: Those tests apply only to the last category, namely militias or volunteers not incorporated in a party’s armed forces.
In case of “any doubt,” says the Convention, captured combatants enjoy its protection until their status is determined by a “competent tribunal.” The International Committee of the Red Cross and Human Rights Watch–and apparently Secretary of State Colin Powell–also read this to mean what it says: Until a tribunal says otherwise, the Guantanamo detainees must be treated as POWs.
Interpreting the Convention
Other Cabinet officers disagree. And Wedgwood argues that such tribunals were meant to deal only with “fact-specific individual cases,” such as soldiers who lose ID cards. Important questions involving broad interpretations of the Convention, she says, must be decided by senior political officials.
Who is correct? International law provides that interpretation of treaties should be based on the ordinary meaning of their terms, in light of their context and purposes. On both issues–who is a POW, and what to do if in doubt–the ordinary meaning of the Geneva Convention seems to favor the reading advocated by the human-rights groups. So, too, does its overriding humanitarian purpose: to protect captured combatants.
As yet, the facts are even less clear than the law. Media reports claim variously that those detained at Guantanamo include more than 100 Saudis, at least 20 Afghans, 19 Yemenis, six Algerians, three British citizens, a few Pakistanis and assorted others. The Pentagon has not yet made public an official breakdown.
If the news reports are even close to right, then most of those held at Guantanamo are Saudi or Yemeni. Because Saudis and Yemenis generally are Al Qaeda rather than Taliban, this suggests that most of the prisoners are Al Qaeda. If so, they probably are not POWs–unless their units were incorporated into the Taliban army.
Afghans and Pakistanis, on the other hand, are more likely to be Taliban. If so–and at least one Guantanamo detainee reportedly is a high-ranking Taliban army officer–they probably are POWs.
But more facts about each individual are needed.
Some in Guantanamo were not captured in combat or even in the theater of war. The six Algerians lived as civilians in Bosnia-Herzegovina. Accused by U.S. intelligence of plotting to blow up our embassy in Sarajevo, they were arrested and jailed by Bosnian authorities, who turned them over to the U.S. (in violation of an order by Bosnia’s human-rights court). They appear to be suspected criminals, not POWs.
The lesson: POWs must be sorted out case by case.
The rights of POWs also are controversial. POWs cannot be prosecuted for engaging in combat but can be prosecuted for committing crimes such as war crimes or terrorism. Irish Republican Army terrorists have unsuccessfully claimed POW status, hoping to immunize their terrorism as “combat.”
This “combat” ploy would be no more successful if attempted by Al Qaeda terrorists. More relevant to Guantanamo is the right of POWs accused of crimes to be tried by the “same courts, according to the same procedure” as would try soldiers of their captors.
Prosecutions of Guantanamo POWs, then, must be before U.S. courts-martial (the courts that would try U.S. soldiers) and not before the special “military commissions” proposed by President Bush. The distinction matters. For example, individuals convicted by court-martial can appeal to civilian courts, whereas the president proposes to allow no such appeal from his military commissions.
Again Wedgwood disagrees. The Convention, she argues, “may require that post-conviction appeals be handled in the same manner as court-martial.” But her argument is weak: The Convention does not say merely the same appeals procedures, it says the “same courts.”
Living conditions
POWs also are entitled to be housed in conditions similar to their captors. Wedgwood argues that this would mean giving them free run of the camp at Guantanamo, an obviously unacceptable result.
Not to worry, answers Roth: While the Convention generally requires that POWs receive equality of treatment with their captors, nothing in it precludes necessary security measures.
On one right, they agree. Although POWs cannot be required to give more than name, rank, serial number and date of birth, that does not mean they cannot be asked for other information, only that they need not answer.
Another right of POWs is to be repatriated when the war ends. But POWs charged with crimes still may be put on trial and required to serve their sentences before going home.
Finally, even prisoners who are not POWs have basic rights. The 1977 Protocol I to the Geneva Convention sets forth “fundamental guarantees” for all persons held by a party to the conflict. (Although the U.S. is not party to the Protocol, U.S. government lawyers agree that this provision represents customary international law binding on all countries.)
Prisoners have rights
Among other rights, all prisoners are entitled to humane treatment and not to be tortured. They may practice their religion. They have due-process rights, including the right to be informed “promptly” of the reasons that they are being held. The Pentagon, then, cannot stall indefinitely in deciding on whether the prisoners at Guantanamo are POWs or will be charged with crimes.
In one way, prisoners may have greater rights if they are not POWs. Under the International Covenant on Civil and Political Rights–to which the U.S. is a party–people accused of crimes are entitled to trial before an “independent and impartial” court. U.S. military courts, whose judges are military officers, are not structurally “independent.”
But U.S. federal courts are independent. Thus the Algerians arrested for plotting against our embassy in Bosnia, for example, are entitled to trial before a U.S. civilian court, like the Al Qaeda terrorists convicted of blowing up our embassies in Africa, who were tried in federal court in New York.
The law is complex, the facts unclear. But to encourage fair treatment of U.S. soldiers who may one day be captured, our policy should be clear: We must ensure scrupulous respect for the rights of all Taliban and Al Qaeda prisoners in Guantanamo.
