Legally, what are the detainees?
By MARY JACOBY, Times Staff Writer
WASHINGTON -- Are the al-Qaida and Taliban detainees at Guantanamo Bay Naval Base prisoners of war or are they what the U.S. government has called "unlawful combatants"?
Although Defense Secretary Donald Rumsfeld insists the captives will be treated humanely either way, the distinction makes a difference.
Under the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, the United States cannot try prisoners of war simply for waging war against the country. But the United States could put "unlawful combatants" on trial for terrorist conspiracy to kill its citizens, human rights experts said.
The experts, however, see a legal difference between the Taliban and al-Qaida fighters as they might be defined by the Geneva Convention.
The Taliban fighters were part of the Afghan military, or "regular armed forces who profess allegiance to a government," as the convention states. Such captured fighters are defined as prisoners of war under the convention.
The mostly Arab al-Qaida fighters would fall under the convention's category of "members of other militias and members of other volunteer corps ... belonging to a Party to the conflict." However, a captured fighter in this class would have to meet further criteria to be considered a prisoner of war under the convention, including having borne arms openly and followed the laws and customs of war.
And this is what al-Qaida almost certainly did not do on Sept. 11, experts say.
"Clearly, you can make the case that al-Qaida did not abide by the laws of war. They completely flouted the laws of war. They engaged in massive attacks to kill civilians," said Tom Malinowski, Washington advocacy director for Human Rights Watch.
International treaties require the United States to resolve the prisoners' status through a judicial body; the U.S. military's own rules require a three-judge military panel to take up the question. Human rights advocates are urging the administration to do so.
"We think if they held those hearings and looked at the facts, the most likely determination would be that the Taliban prisoners are POWs while the al-Qaida prisoners are not," Malinowski said.
As of Tuesday, 158 detainees had been taken to Guantanamo, and more are expected.
Hurst Hannum, professor of international law at the Fletcher School of Law and Diplomacy at Tufts University, said he suspects the Bush administration hasn't resolved the prisoners' status because it doesn't know what it wants to do with them yet.
Any POWs will have to be released when a war is declared over, unless they are charged with engaging in specific hostile acts against the United States. But a prisoner thus charged would then be entitled to a fair trial, in either a civilian or military court: any venue in which regular U.S. citizens or military personnel would be tried.
But the United States would then have the difficult task of finding witnesses to make the charges stick.
"They've never used the word "crime,' because if they use the word "crime,' they have to use the word "trial.' If they use the word "trial,' they have to use the word "fair,' " said Hannum, who is also co-director of the Center for Human Rights and Conflict Resolution at the Fletcher School.
Regardless of the prisoners' status, the Geneva Conventions require the United States to treat all detainees at the naval base in Cuba humanely, the experts say. And that means no torture, abuse or public mockery.
Rumsfeld, responding to an uproar in Britain over allegations of inhumane treatment of the prisoners, said Tuesday: "They are being treated humanely."
He added: "I have seen in headlines and articles words like "torture' and one thing or another, which is utter nonsense. . . . We are giving them the treatment that is appropriate under the Geneva Convention."
Rumsfeld said his understanding of the legal reasoning behind the decision not to declare the detainees prisoners of war is that, "One of the higher purposes of the Geneva Conventions was to distinguish between legitimate combatants and unlawful combatants.
"The reason for doing that was they (drafters of the conventions) felt that a higher standard should be ... given to people who in fact wore uniforms, who in fact were fighting on behalf of a legitimate government, who did carry their weapons openly."
Both Malinowski and Hannum agree that al-Qaida fighters are unlikely to qualify for prisoner-of-war status. But they urge the United States to resolve the question through a panel of military judges or risk losing international support for the war on terrorism.
They also say the United States will have less moral leverage with enemy countries that in the future may take U.S. forces prisoner if it does not scrupulously follow the rules now. "We want to make sure our forces get 100 percent protection of the Geneva Conventions as well," Malinowski said.
The Geneva Conventions are four treaties that govern the treatment of sick or wounded military personnel and civilians during wartime. Their goal is to prevent atrocities and to further humanitarian aid.
The first Geneva Convention in 1864 recognized the need for volunteers from different countries to care for wartime wounded and said any such organization should be identified by a red cross on a white background. That's how the International Red Cross came into being.
The United States ratified the first convention in 1882 after a lobbying campaign by American Red Cross founder Clara Barton and abolitionist Frederick Douglass, among others.
The conventions have been revised several times since then, including in 1949, when 52 governments agreed upon the four Geneva Conventions still in force today. Both the United States and Afghanistan have ratified the conventions.
The term "unlawful combatants" is not found in the conventions. Rather, it is from a 1942 U.S. Supreme Court decision upholding military tribunals for German saboteurs who were captured in America.
That decision said spies and saboteurs are not entitled to POW protections because they have violated the law of war, the same argument the administration is using against captured al-Qaida fighters.
In part, the confusion surrounding the status of the Guantanamo detainees is the natural result of applying a 53-year-old treaty to a changed and modern world.
"One problem is, when the Geneva Conventions were drafted there was an assumption you're either in the army or not," Hannum said. "I don't think when they were drafted they foresaw this never-never land of guerrillas and terrorists."
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