And what about the Geneva Conventions?

The Bush administration's refusal to treat Afghan prisoners as POWs or accord them basic rights is a dismissal of international law, writes Faiza Rady
"Operation Enduring Freedom" has ushered in more than just a new era in world politics. It has also revolutionised semantics. In the post-11 September epoch conventional definitions seem to have become entirely passé. Take the standard definition of Prisoner of War (POW) status, for example. Under the Geneva Conventions -- international treaties which regulate the treatment of persons captured during armed conflicts -- a POW is defined as a soldier serving in an adversary state's armed forces, or a member of an identifiable militia group that abides by the laws of war.
Does POW status apply to the 20 Al- Qa'eda and Taliban prisoners delivered on Friday under heavy American military guard to the US Navy base at Guantanamo Bay, Cuba? Not so, according to US Defence Secretary Donald Rumsfeld. "They will be handled not as prisoners of war, because they're not, but as unlawful combatants," Rumsfeld told reporters in Washington, adding that "unlawful combatants do not have any rights under the Geneva Conventions."
Unlawful combatants then, or POWs? Despite his categorical statements, the US defence secretary apparently could not quite make up his mind. Following his dismissal of the Afghan prisoners as "illegal combatants," in an afterthought Rumsfeld seemed to grant them legality after all. Talking to reporters about his decision to bar media photographers from covering the Afghan prisoners' arrival at Guantanamo Bay, Rumsfeld explained that taking photos would be embarrassing to them and interviews would violate the prisoners' rights under the Geneva Conventions. Rumsfeld's apparent turnaround looks very much like a case of the defence secretary wanting to have his cake and eat it too.
This rhetorical see-sawing on the part of the Bush administration did eventually culminate in the prisoners being designated as unlawful combatants -- and thus outside the scope of the Geneva Conventions.
Denied POW status and conveniently defined as "unlawful," it looks very much like the Al-Qa'eda and Taliban prisoners will be denied protection under international law. The US branch of Human Rights Watch (HRW) begs to differ, however. Dismissing Rumsfeld's assertions as politically motivated and self-serving, HRW vehemently denounced the US defence secretary's position under international law. "As a party to the Geneva Conventions, the US is required to treat every detained combatant humanely, including unlawful combatants. The US cannot pick and choose among them to decide who is entitled to decent treatment and who is not," said Jamie Fellner, director of the HRW.
There is a distinction to be made between Al-Qa'eda and the Taliban, says HRW. While Al-Qa'eda members -- who do not wear a uniform or an identifiable insignia and do not abide by the rules of war -- will probably not qualify as POWs, Taliban soldiers do fit the definition.
Moreover, the US defence secretary is not a competent authority under international law to define the status of prisoners. The Geneva Conventions require that a tribunal establish the status of a captured person if that status is in doubt. Unless and until a court ruling is issued, international law requires all prisoners to be treated as POWs
The Geneva Conventions further stipulate that every fighter is entitled to humane treatment. At a minimum, this is understood to include basic shelter, clothing, food and medical attention.
The right to basic shelter, defined as the provision of appropriate and comfortable living conditions, is in itself a bone of contention. Judging by the conditions prisoners will face at the Guantanamo Bay's makeshift detention centre, "Camp X-ray," US military authorities are following the defence secretary's lead. They have failed to provide even the minimal requirements of physical comfort afforded to prisoners in US jails.
Hoarded into six-by-eight foot outdoor cells made of chain-link-fencing with concrete floors and metal roofs, the prisoners are subjected to substandard housing conditions. Besides providing scant protection from wind and rain, the six-by-eight cells are cages in everything but name.
This apparently sub-human status accorded the prisoners, in the racist mind-set of their captors, was clearly formulated by Air Force General Richard B Meyers, chairman of the Joint Chiefs of Staff. "These are people that would gnaw hydraulic lines in the back of a C-17 to bring it down," explained Meyers at a news conference. Although dazed by the 20-hour flight from Kabul to Cuba and bound by leg and hand shackles, the prisoners were still deemed threatening. "These are very, very dangerous people, and that's how they're being treated," commented Meyers. According to the US military command's logic, it is only fitting that such people should be held in cage-like cells.
HRW disagreed. "The proposed cages are a scandal. The US should not be transporting detainees to Cuba until it can provide decent shelter," said Fellner. "The [defence] secretary seems unaware of the requirements of international humanitarian law."
Recommend this page
© Copyright Al-Ahram Weekly. All rights reserved
Send a letter to the Editor