Denying Captives Rights Will Return to Haunt Us

19 January 2002

I have characterized the 11 September terrorist attacks in the United States as crimes against humanity and called for those responsible to be made accountable under the law. From the outset, President George Bush has stated it is the intent of his administration to bring those individuals to justice. This means the alleged perpetrators should be brought before a court and tried under due process of law.

No one should underestimate the difficulties of dealing with terrorism under the rule of law. As a citizen of Ireland I certainly do not. But it is not impossible. The international human rights and humanitarian standards allow for flexibility in emergencies but the standards still apply and must be upheld. These standards are enshrined in various legal instruments, particularly the International Covenant on Civil and Political Rights, ratified by America in 1992, and the Geneva Conventions of 1949.

The armed conflict in Afghanistan is of an international nature and the law of international armed conflict applies. That means the Geneva Conventions. These prescribe standards of treatment of persons who are not, or are no longer, taking an active part in hostilities. I am pleased to note the International Committee of the Red Cross has reached agreement with the US on visiting prisoners in Guantanamo Bay and Afghanistan.

The individuals detained include members of the Taliban and those suspected of being part of al-Qa'ida. Some commentators ask if the al-Qa'ida forces are covered by the law of international armed conflict. Under the Third Geneva Convention, to the extent that they are characterized as members of militias or volunteer corps linked to the Taliban, they could qualify.

In any event the starting point is that these prisoners, unless charged with terrorist offenses, should be presumed to be prisoners of war. The US authorities' view is that they are "unlawful combatants" and the Geneva Conventions do not apply. America is entitled to make this case. But the issue can only be determined by a court. Article 5 of the Third Geneva Convention provides that should there be doubt as to whether an individual enjoys PoW status, they shall be treated as such until their status has been determined by a competent judicial tribunal.

America has the right to try any persons suspected of having committed war crimes during the conflict or of having committed other international crimes, prior to the hostilities, such as the terrorist attacks on 11 September. But unless the prisoners are to face such charges, they must be repatriated once the conflict is over.

States have painstakingly built up the international standards. In these difficult times for human rights we should be seeing a strong affirmation of the importance of these standards. If we do not, we are creating a dangerous precedent that will surely come back to haunt us.

Mary Robinson, United Nations High Commissioner for Human Rights Published in the Independent © 2002 lndependent Digital (UK) Ltd

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