U.S. Will Be Judged on Captives Fate

17 January 2002

The United States has entered a phase in its war against the Qaida terrorist network in which its actions will be judged by a much higher humanitarian standard. In the heat of combat many atrocities are understandably overlooked. However, that is not the case when dealing with prisoners of war.

The first 50 Taliban and Qaida prisoners have been transferred to the Guantánamo Bay naval base in Cuba. What the United States does to them, and how, will be watched by the world.

The United States has a reputation as an advocate for fairness and the principles of justice. Are these ideals simply a facade that can be dropped whenever it is convenient or are they - as Americans like to think - deeply imbedded in the national psyche?

The New York Times reported that Secretary of Defense Donald Rumsfeld called the Afghan prisoners "unlawful combatants" and added, "unlawful combatants do not have any rights under the Geneva convention".

Mr. Rumsfeld is absolutely wrong. Unfortunately, his statements give an indication that the principles of fairness and justice will not apply to these captives - nor will the Geneva conventions.

Under the Geneva conventions, captive Taliban soldiers, as members of the Afghanistan armed forces, must be considered prisoners of war and are entitled to treatment commensurate with their military status.

More to the point, prisoners of war who are prosecuted for war crimes must be tried by the same court and under the same rules as members of the captor's armed forces would be. Taliban prisoners of war cannot, under the Geneva conventions, be tried by President George W. Bush's military tribunal. Instead, they must face courts-martial, regulated by the procedural rules set forth in the Uniform Code of Military Justice.

In courts-martial, military prosecutors face nearly the same safeguards for fair and impartial trial as federal prosecutors in federal courts. Such high standards do not exist in military tribunals. In fact, under Mr. Bush's Nov. 13 order establishing military tribunals, Mr. Rumsfeld, the same man who doesn't consider captive Taliban soldiers to be prisoners of war, has extraordinary power to shape their judicial process.

According to the Bush order, Mr. Rumsfeld can close all military tribunal proceedings to the public and does not have to require that a defendant be proved guilty "beyond a reasonable doubt." He can decide that a lower standard of proof is all that is necessary - even if the sentence be death.

The administration's tilt away from fair treatment for these captives is clear.

Captured Qaida members fall into a legal gray area. If they fought alongside Taliban soldiers and wore identifiable insignia, they should be classified as prisoners of war. If not, under the Geneva conventions they must still be treated as prisoners of war until a determination of their status is made by a competent independent tribunal.

Nevertheless, the Geneva conventions require that all captured fighters be treated humanely. They cannot be subjected to torture, corporal punishment or degrading treatment. The chain-link cages set up as temporary cells for the prisoners at Guantánamo Bay cannot be considered humane.

The Qaida attacks of Sept. 11 violated the law of war by targeting noncombatant civilians. However, Qaida fighters captured in Afghanistan were not engaged in acts that violate the law of war. They were fighting against American or Northern Alliance forces.

According to the American Bar Association, the president's military tribunals "do not have the authority to try persons for crimes other than law of war violations." Qaida soldiers cannot be legally tried by military tribunals.

U.S. troops in various wars were sheltered and aided by the Geneva conventions. If the United States turns its back on these conventions, it jeopardizes the Americans who will serve in future wars.

How the United States acts now will reveal its soul. Does America truly stand for fairness and justice?

Charles Levendosky
Published in the International Herald Tribune © 2001 the International Herald Tribune

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