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Date: Mon, 14 Jan 2002 12:23:02 +0100
From: Mario Profaca [EMAIL PROTECTED]
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Subject: [Spy News] FW: US doesn't have the right to decide PoW status
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From: International Justice Watch Discussion List
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On Behalf Of Daniel Tomasevich
Sent: Monday, January 14, 2002 7:19 AM
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Subject: US doesn't have the right to decide PoW status
This article adds to the discussion that the Taliban are PoWs.
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.
Daniel
(article not for cross posting)
-
The Guardian Monday January 14, 2002
Comment
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
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
