Tuesday, February 26, 2002 Volume 67, Issue 101


 
 









 

Taliban detainees remain in limbo

Lema Mousilli

In metal cages open to the elements lie 300 prisoners, some of them allegedly members of the al-Qaida network and others former Taliban soldiers. Hooded and shackled, they were shipped from Afghanistan after being captured and are currently held by the U.S. military at its naval base in Guantanamo Bay,
Cuba.

Fierce protest by international law and human rights groups (Red Cross, Amnesty International, etc.), European governments and even a former U.S.
attorney general has erupted over the rights of the prisoners and their physical situation. Protesters have taken considerable issue with confining the
detainees to open-air metal cages with roofs. The other outstanding complaint has been the prisoners' legal status — or rather, their lack of status.

In defiance of the Geneva Conventions, the Bush administration has resisted granting prisoner-of-war status to the detainees. "Unlawful combatants" has
been the preferred designation for the prisoners. 

Article 5 of the Geneva Conventions clearly states that if there is any doubt as to whether those captured are prisoners of war, then they must be treated as
such until such time as their status has been determined by a competent tribunal. 

The U.S. army actually has regulations setting up such a tribunal to make such determinations. Unfortunately, the Bush administration has neglected to
employ that tribunal and has stubbornly insisted that the prisoners are not POWs.

It may be argued that the al-Qaida detainees do not qualify for POW status (although the Red Cross insists they are) because they did not fight for a regular
army, but the Taliban prisoners surely did — they fought for the regular armed forces of Afghanistan. Therefore, it only seems just that the Taliban soldiers
should be granted POW status. 

The argument has been made by Secretary of Defense Donald Rumsfeld that the Taliban was not internationally recognized as the government of
Afghanistan and therefore this rule does not apply. 

But it should be pointed out that the Geneva Conventions do not make that distinction; as article 4 of the Conventions makes clear, recognition of a
government is irrelevant to the determination of POW status. Rumsfeld's suggestion is incredibly hypocritical, considering that during the Korean War the
United States treated Chinese prisoners as POWs although the United States did not recognize the communist government of China.

The Bush administration has resisted treating the prisoners as POWs because it would limit its legal options with regards to trying them. According to the
Conventions, the POWs must be tried as U.S. soldiers would, by the same courts and under the same procedures. 

If any of the Guantanamo detainees did commit war crimes, they could be tried by court martials or civilian courts —not by military tribunals, as Washington
has threatened to do. Article 130 of the Conventions deems it a grave crime to deprive POWs of the right to a fair and regular trial; it even goes on to say that
such a breach of the Conventions is the basis for a war-crimes prosecution.

Although the Geneva Conventions allow POWs to limit their responses to name, rank and serial number, they can still be interrogated, cajoled and
questioned. Whether or not they are granted POW status, the prisoners cannot be coerced or tortured. Therefore, conferring the detainees POW status does
not prevent the interrogation of people suspected to have information about possible future terrorist attacks, as the argument has been made.

The Bush administration should hasten to abide by international laws and the Geneva Conventions. Doing so would at least give it the right to demand fair
treatment of American soldiers taken captive during war — not doing so would seriously endanger the rights of U.S. soldiers who may be captured in future
conflicts. The reputation of U.S. justice is now at stake. How it handles the Guantanamo detainees will surely be examined by rest of the world, and by

history, with a critical eye.

Mousilli, a senior English and 
political science major, can be reached at lema@mousilli.com.


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