Winner's rules

Nyier Abdou sifts fact from fiction on the legal status of the prisoners taken to Guantanamo Bay
When the United States suspended operations transferring captured Taliban and Al-Qa'eda fighters in Afghanistan to its crudely constructed detention facility at the US Naval base at Guantanamo Bay, on the south-eastern tip of Cuba, "Camp X-Ray" was at full capacity. The decision, announced late last month, leaves 158 detainees quartered in the spare, chain-link enclosures. Airlifted to the base from Afghanistan, these prisoners are presumed to be among the most dangerous enemy fighters netted by the US-led war in Afghanistan. But they are also the unlikely focal point of fiery international debate regarding their legal status and welfare.
Not known for its fastidiousness in adhering to international covenants, the US has sustained strong attacks from human rights organisations, international policy groups and foreign governments regarding the treatment of prisoners at Guantanamo, ranging from the excessively restrained manner in which they were transported, to the cramped, cage-like cells they are being kept in. But most crucial is the US's refusal to accord the detainees prisoner-of-war (POW) status -- defined by the 1949 Geneva Conventions that adjudicate the so-called laws of war. Many human rights law experts maintain that the definition of POWs, set out in the Third Geneva Convention, subsumes the case of the Guantanamo prisoners, but the US disagrees, labelling them "unlawful combatants."
The rights of POWs under the Geneva Conventions are considerable, which means it is in the interest of the US to classify them otherwise. But Avner Gidron, senior policy adviser dealing with issues related to armed conflict at the London- based Amnesty International, warns that the US is contravening its legal obligations under the Geneva Conventions. Gidron told Al-Ahram Weekly that a "careful reading" of the Third Geneva Convention, the First Additional Protocol, and the commentaries on these instruments issued by the International Committee of the Red Cross (ICRC) indicates that the prisoners are presumed to be POWs. United Nations High Commissioner for Human Rights Mary Robinson said as much in a 16 January statement, noting that Article 5 of the Third Geneva Convention states that in cases of disputed status, a "competent tribunal" -- such as an independent US court -- should make the determination.
Gidron says that the terms "illegal combatant" or "battlefield detainee" -- both applied by the US since it began taking Taliban and Al-Qa'eda fighters into custody and often erroneously described as a newfangled concept dreamt up by US military lawyers -- are "not actual terms in international humanitarian law." But there are precedents. Curt Goering, deputy executive director of Amnesty International and a veteran human rights activist, clarified that there are categories of individuals, such as mercenaries, who are not accorded the full protections of the Third Geneva Convention, but "the prisoners taken to Guantanamo do not fall under this category," he told the Weekly. Recalling an incident a few years ago, Goering explained that the Israeli government used a similar term to describe members of Hizbullah and other resistance groups fighting the Israeli occupation of southern Lebanon. A few captured fighters were not accorded POW status, says Goering, but "not to do so, without having a 'competent tribunal' determine that status, is a breach of the Geneva Conventions."
Marjorie Cohn, co-chair of the International Committee of the National Lawyers Guild in the US and a professor of international human rights law at the Thomas Jefferson School of Law in San Diego, California, cites another case in which the controversial appellation was applied. Though not mentioned in the Geneva Conventions, Cohn says the term came up in a US Supreme Court ruling in a 1942 case involving eight Nazi saboteurs, who sneaked into the country by submarine. According to Cohn, the court upheld convictions against the saboteurs by a military tribunal, characterising them as unlawful combatants. This designation was defined as an "enemy ... who, without uniform, comes secretly through the lines for the purpose of waging war by destruction of life or property." Cohn told the Weekly that because unlawful combatants are seen as a "particularly insidious threat to national security," they are not awarded the privileges afforded prisoners of war. "In fact, some analysts contend that a military commander who discovers an unlawful combatant could shoot him on the spot, without breaking an international law."
While admitting that members of the Taliban forces might constitute a special case, Amit Pandya, deputy director of the Research and Policy Reform Center and a lawyer who has litigated numerous international human rights cases, told the Weekly that it is difficult to class foreign Al- Qa'eda fighters as POWs. "My judgement would be that it would be hard to make a case that Al- Qa'eda are POWs because the armies contemplated by international law -- customary or treaty, however flexible one's definition of an army -- are national armies or alliances of national forces," Pandya said.
It has been argued that as an organised militia allied to the Taliban, Al-Qa'eda fighters fall under the definition of POWs laid out in Article 4 of the Third Geneva convention, which allows for "members of militias or volunteer corps" forming part of the armed forces of a "Party to the conflict" (in this case, the Taliban, as the de facto government of Afghanistan, albeit unrecognised officially by the US), as well as "members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory." But Pandya, who has held senior positions at the US State and Defence departments, specifically cites this argument as faulty, noting that Al-Qa'eda does not "fall under the rubric of a non-governmental party to an internal conflict, since by its own definition, [Al-Qa'eda] is in a transnational war against governments." This said, Pandya concedes that the "definitional issues" of the so- called war on terrorism -- the ambiguity of its stated enemy, its indeterminate goal, the seemingly elusive definition of victory -- do raise difficulties when applying the laws of war.
Peter Bouckaert, a senior researcher at the New York-based Human Rights Watch (HRW) who has covered numerous armed conflicts around the world, told the Weekly that Taliban forces clearly fall under the definition laid out by Article 4. In the more nebulous case of Al-Qa'eda fighters, however, Bouckaert notes that a "four-part test" is specified by the Geneva Conventions. The prisoners need to prove: (a) that they were part of a force with recognised commanders; (b) that they wore distinctive uniforms recognisable at a distance; (c) that they carried arms openly; and (d) that they operated "in accordance with the laws and customs of war."
Whether Al-Qa'eda members operating in Afghanistan meet the four-part test is one of the key questions being debated by human rights experts (Bouckaert, for one, says it is "unlikely" that most Al-Qa'eda operatives would meet the requirements, while Marjorie Cohn, of the National Lawyers Guild, says that the fighters clearly meet the definition of POWs). But most agree on one thing: the US cannot interpret the laws of war as it pleases. "The US cannot order international law a la carte, but has engaged in unilateral interpretations," says Bouckaert. "This is not acceptable, and undermines the credibility of the Geneva Conventions." The purpose of the laws of war, Bouckaert underlines, is to provide a clear legal structure so as to "avoid a situation where the victorious party in a conflict decides its own rules."
This point was earnestly accentuated by numerous international law experts, among them Amnesty's Gidron. "The laws of war depend on reciprocity for their effectiveness. By ignoring the Geneva Conventions, the US is endangering not only its own military personnel, but members of the armed forces of every state who fall captive to their opponents," Gidron said.
The legal issues grow murkier. It has often been noted that by bringing the prisoners to a place outside of US borders, they are not under the jurisdiction of US law. But again, this may be disinformation. The Research and Policy Reform Center's Pandya says that the prisoners are "clearly under US jurisdiction," although they may arguably be outside the jurisdiction of US courts. Human rights expert Cohn affirms that US bases and embassies are considered US soil, insisting that US law does apply. Citing conflicting legal precedents on the issue, Amnesty USA's Goering says there "doesn't appear to be a definitive answer," but he noted that Amnesty would "be disturbed by a situation where US officials could theoretically violate the rights provided for in the [US] constitution."
"It is my impression that Guantanamo was chosen specifically to cloud the legal status of the prisoners, and to keep their conditions from public scrutiny," remarks William Hartung, of the New York-based World Policy Institute. "The fact that they are prisoners of the US government being held at a US facility seems to me to suggest that they should have the same rights accorded to a prisoner on US soil. But there are differences of opinion on this, and the Bush administration has chosen the interpretation that fits its desire to interrogate the prisoners outside of public view, where no objective observer can determine what techniques they may be using to get information."
HRW's Bouckaert, an expert on the investigation of wartime abuses, also stresses that even though there is no explicit name in the Geneva Conventions for captured combatants without POW status, official commentaries and a recent ruling from the International Criminal Tribunal for the Former Yugoslavia "make it clear that no one falls outside the legal structure of the Geneva Conventions."
Antonella Notari, spokesperson for the International Committee of the Red Cross (ICRC) in Geneva, confirmed to the Weekly that the ICRC "is working on the basis that combatants captured in Afghanistan and detained by US forces are presumed to be prisoners of war." She also noted that, so far, the US has allowed the ICRC to carry out its mandate under the Third Geneva Convention to visit, register and attend to the humanitarian needs of persons detained in armed conflicts. This has been true both in Afghanistan and Guantanamo Bay.
ICRC delegates have seen each of the prisoners in Guantanamo Bay individually and Notari says that the ICRC mission in Guantanamo is meeting regularly with the US camp commander and his staff. At a later stage, the ICRC will issue a written report to the US authorities -- "and to them only," Notari stresses. "These reports are always strictly confidential and addressed exclusively to the detaining authorities -- in this case, the United States."
The World Policy Institute's Hartung warns that the foundations of American democracy may end up being "shredded in the name of fighting terrorism." Bouckaert agrees: "Sentiments always run high at times of national insecurity, and there is always a tendency to resort to extreme measures," he said. "We should guard against extremism, and ensure that the basic values for which we stand are not compromised in the fight against a serious threat. Terrorists believe that anything goes in the name of their cause. The fight against terror should not buy into that logic."
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