Prisoners, Surely. But P.O.W.s?
January 27, 2002
The New York Times
By SERGE SCHMEMANN
UNITED NATIONS
OVER the past week, images
of prisoners taken in
Afghanistan, shackled, bound
and hooded on their arrival at the
United States naval base in Cuba, drew angry criticism
from Europeans and humanitarian organizations. The
Bush administration replied that the prisoners are being
treated as humanely as possible, given that many are
terrorists.
But behind the emotive question of whether the pictures
gave a true representation of the way the men were being
treated, the core of the issue was an arcane legal
question: are these men prisoners of war? And if not, as
the United States maintains, what are they?
It is not just their treatment that depends on the answer,
but the strength of a coalition in which many partners are
becoming anxious about Washington's apparent lack of
concern for international rules.
On one issue, there has been no dispute. Though there is
disagreement on whether the prisoners have been treated
humanely, there is no question that the law, and
American tradition, say they should be.
The trickier question is their status. Are they soldiers
taken on the field of battle, and therefore prisoners of war
entitled not just to humane treatment, but to all the
protections enshrined in the Geneva Conventions? Are
they the modern equivalent of Barbary pirates,
international criminals outside the rules of law who can
be tried by whatever country seizes them, and questioned
like any criminal?
Or are international terrorists a new category, for which
the rules are evolving only now?
In the past, the United States regarded terrorists as
common criminals, to be tried in civil courts. But since
Sept. 11, Washington and its allies have talked
consistently of a "war" on terrorism, and the operations in
Afghanistan certainly have all the hallmarks of warfare.
At the same time, the Bush administration has made clear
it does not want to treat the captives as P.O.W.'s,
consistently referring both to Taliban and Al Qaeda
prisoners as "battlefield detainees" or "unlawful
combatants." If they were declared prisoners of war, the
United States would be constrained in questioning them,
or holding some separate from the others.
Furthermore, the Geneva Conventions specify that if a
P.O.W. is put on trial, it must be "by the same courts
according to the same procedure as in the case of
members of the armed forces of the Detaining Power."
That would potentially preclude the special military
tribunals President Bush has proposed, and open the way
for many things the administration has hoped to avoid,
like drawn-out appeals, publication of classified
information and stricter standards of proof.
So far, while ardently defending the treatment of the
captives, the Secretary of Defense, Donald H. Rumsfeld,
has not said precisely what sort of prisoners they are,
although he has said "they will be handled not as
prisoners of war, because they're not, but as unlawful
combatants."
ACCORDING to experts in international law, there is a
strong argument that Al Qaeda fighters, at least, are
"unlawful combatants" under the Geneva Conventions.
The conventions laid out basic principles - that civilians
and prisoners are to be protected, that the wounded must
be cared for, that humanitarian workers must be
respected. In other words, the carnage had to be restricted
as much as possible to those who had a right to fight -
"lawful combatants."
"Lawful combatants are members of organized forces who
wear distinctive insignia, are subject to command and are
capable of complying with laws of war," said Anne-Marie
Slaughter, a professor of international law at the Harvard
Law School. "That means essentially government forces."
By their very nature, Al Qaeda and other terrorist
organizations fall outside the scope of rules whose basic
logic is reciprocity - "I'll show restraint if you show
restraint." They deliberately target civilians, and flatly
reject any rules of war.
But that logic, Ms. Slaughter and other experts said, was
more difficult to apply to the Taliban, whose fighters were
basically government forces.
In any event, even unlawful combatants have rights under
the Geneva Conventions. In cases of doubt, they say,
captives will be treated as prisoners of war until their
status is determined "by a competent tribunal." But even
this rule runs into a fundamental American resistance to
treating terrorism in any framework of the laws of war.
"Such a framework may seem to imply a degree of moral
acceptance of the right of any particular group to resort to
violence," wrote Adam Roberts, a professor of international
relations at Oxford, in an exhaustive study of the
relevance of the laws of war in counter-terrorism.
In the end, however, the sharp criticism that the
treatment of the prisoners has provoked in Europe and
among humanitarian organizations suggests that the
problem may be less legal than political. Both
international and military lawyers noted that much of the
criticism might have been avoided if the United States had
stated a clear legal framework, and if it had not shrouded
so many of its actions in secrecy.
"Although many key U.S. positions were defensible,
especially that certain prisoners might not qualify for
P.O.W. status," Mr. Roberts concluded, "aspects of U.S.
policy and procedures were very poorly presented, and in
some cases did not appear well thought out." And
politically, at least, this problem was made more acute by
the very words in which the fight has been cast - a
contest between good and evil, in which ideals of freedom
are at stake.
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