Taliban detainees remain
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,
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
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
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
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
Mousilli, a senior English and
political science major, can be reached at email@example.com.