WSWS : News & Analysis : The US War in Afghanistan
US flouts world opinion and Geneva Convention in treatment of Afghan
war prisoners
By Shannon Jones and Patrick Martin
23 January 2002
The brutal treatment by the United States of Taliban and al Qaeda
prisoners in its custody, who are being held in open-air cages at the
Guantanamo naval base in Cuba, is provoking growing worldwide
condemnation as a violation of international law.
The International Committee of the Red Cross said January 21 that
those being held by American forces must be classified as prisoners
of war under the Geneva Convention and were entitled to all the
protections offered by it. The ICRC is the international body
entrusted with enforcement of the Geneva Convention, and its decision
is a political blow to the Bush administration.
Red Cross officials added that some of the terms used by the US
government to describe the Afghan prisoners, such as "battlefield
detainees," have no legal meaning. The Red Cross has further charged
that the US is abusing prisoners in Afghanistan, where it is holding
360 captured fighters in Kandahar in an unsheltered stockade, exposed
to the bitter winter cold.
Amnesty International joined the Red Cross and other groups in asking
the US government to define the prisoners as POWs. "It is not the
prerogative of the Secretary of Defense or any other U.S.
administration official to determine whether those held in Guantanamo
are POWs," the group said in a statement. "An independent US court,
following due process, is the appropriate organ."
The Bush administration and the Pentagon have employed makeshift and
invented terms like "illegal combatant" to describe the prisoners, in
order to disguise the fact that it is the US government, not the
POWs, which is engaged in illegal activity.
Recognizing the POW status of the captured men would defeat the
entire purpose of their removal from Afghanistan, which is aimed at
facilitating intensive interrogation, drumhead trials before military
tribunals, and prolonged imprisonment. Under the Geneva Convention,
prisoners cannot be forced to reveal more than their name, rank,
serial number and date of birth. Unless they are formally tried for
war crimes, POWs must be returned to their home countries at the end
of "active hostilities," which could be very soon given the collapse
of Taliban resistance in Afghanistan.
An earlier statement by Amnesty International suggested that the
mistreatment of Afghan prisoners may itself constitute a war
crime: "Any detainee who is suspected of a crime, whether or not they
are POWs, must be charged with a criminal offense and tried fairly or
released. Denying POWs or other people protected by the Geneva
Conventions a fair trial is a war crime."
Donald Rumsfeld, the US secretary of defense, dismissed the mounting
criticism of US treatment of prisoners: "I do not feel even the
slightest concern about their treatment. They are being treated
vastly better than they treated anybody else." This characterization
is not only arrogant but concedes that the Bush administration's
policy is not based on any objective legal norms.
So weak is the US government's legal position that the Washington
Post published an editorial January 17 under the headline, "Follow
the Geneva Convention." It is remarkable that the principal newspaper
in the US capital should find it necessary to advise the US
government not to commit war crimes, even if that caution is couched
in the most mealy-mouthed terms.
The Post admitted that Rumsfeld does not have a leg to stand on with
his argument that the US is "for the most part" observing the Geneva
Convention even though the detainees "do not have any rights under
the Geneva Convention."
"That is not the case," the newspaper said. "The Geneva Convention
and other international treaties ratified by the United States give
the detainees specific rights, rights that the Bush administration
should respect.
"The first right most of the prisoners have is for a hearing by a
tribunal to determine whether or not they are prisoners of war.
Despite Mr. Rumsfeld's declaration, detainees cannot as a group be
designated unlawful combatants by the secretary of defense; according
to most interpretations of the Geneva Convention, in the case of a
dispute about status, prisoners must have a hearing before a
tribunal."
Outrage in Europe
In Europe the position of the US government has provoked widespread
outrage. British newspapers published photographs of the prisoners at
Guantanamo, released by the US Navy, under captions labeling their
treatment as "torture." A columnist for the conservative British
newspaper the Daily Mail wrote, "this is a bewildering and shocking
experience. Even the SS were treated better than this." The security
chief of the European Union, Javier Solana, called for the detainees
to be treated as POWs entitled to the protection of international law.
A US federal judge in Los Angeles agreed to hear a petition filed by
the Committee of Clergy, Lawyers and Professors demanding that the US
government bring the prisoners before a US court and spell out the
charges against them. University of Southern California law professor
Erwin Chemerinsky, a leader of the group, said, "These individuals
were brought out of their country in shackles, drugged, gagged and
blindfolded, and are being held in open-air cages in Cuba. Someone
should be asserting their rights under international law."
There was one significant public defense of the brutal treatment of
the prisoners: from Senator Joseph Lieberman of Connecticut, the
Democratic candidate for vice president in 2000. After a briefing at
Central Command headquarters at MacDill Air Force Base in Florida, he
told reporters, "I think our military is doing just the right thing
in the way they are handling them at Guantanamo. These are violent
killers. They are already threatening the American personnel who are
there to guard them."
The US treatment of the Afghan prisoners violates international law
in many respects. The US says that it will carry out "intense
interrogation" of captured fighters. But Article 17 of the Geneva
Convention states, "No physical or mental torture, nor any other form
of coercion, may be inflicted on prisoners of war to secure from them
information of any kind whatever. Prisoners of war who refuse to
answer may not be threatened, insulted, or exposed to unpleasant or
disadvantageous treatment of any kind."
As a columnist for the Toronto Star wrote, "Those detainees, brought
shacked, shaved and blindfolded to Cuba, are kept in chain link pens
under the constant glare, night and day, of halogen lamps (The
blindfolding, deliberate disorientation, discomfort and constant
light are staples of police states all over the world. The idea is to
break down the inmate, weaken him from lack of sleep and thereby make
him more pliable when the interrogators begin their work.)"
POWs and the Geneva Convention
The Bush administration plan to use secret military tribunals to try
captured al Qaeda and Taliban is a further violation of international
law. Article 84 of the Geneva Convention stipulates: "In no
circumstances whatever shall a prisoner of war be tried by a court of
any kind which does not offer the essential guarantees of
independence and impartiality as generally recognized, and in
particular, the procedure of which does not afford the accused the
rights and means of defense provided for in Article 105."(Right to
choose own counsel, right to call witnesses)
Article 102 further enumerates the rights of prisoners of war to a
fair trial: "A prisoner of war can be validly sentenced only if the
sentence has been pronounced by the same courts according to the same
procedures as in the case of members of the armed forces of the
Detaining Power."
And article 107 the Geneva Convention stipulates: "Every prisoner of
war shall have, in the same manner as the members of the armed forces
of the Detaining Power, the right of appeal or petition from any
sentence pronounced upon him, with a view to the quashing or revising
of the sentence or the reopening of the trial."
Under terms of Article 130 grave breaches of international law
include "willfully depriving a prisoner of war of the rights of fair
and regular trial presented in this convention."
The housing of prisoners in open-air, chain-link cages six feet by
eight feet with concrete floors is both inhuman and a violation of
minimum standards set by the Geneva Convention. Article 25
stipulates: "Prisoners of war shall be quartered under conditions as
favorable as those for the forces of the Detaining Power who are
billeted in the same area....
"The foregoing provisions shall apply in particular to the
dormitories of prisoners of war as regards both total surface and
minimum cubic space, and the general installations, bedding and
blankets.
"The premises provided for the use of prisoners of war individually
or collectively shall be entirely protected from dampness and
adequately heated and lighted, in particular between dusk and lights
out....
The US is violating both terms of the Geneva Convention and the
Vienna Convention on Consular Access in holding captives
incommunicado and refusing to release their names. Article 70 of the
Geneva convention states: "Immediately upon capture, or not more than
one week after arrival in camp, even if it is a transit camp ...
every prisoner of war shall be enabled to write direct to his family,
on the one hand, and to the Central Prisoner of War Agency, on the
other hand ... informing his relatives of his capture, address and
state of health."
The Geneva Convention stipulates that all prisoners, regardless of
their exact status, be treated humanely.
Article 4 outlines broad terms under which captured belligerents must
be considered prisoners of war. These include irregular forces such
as "Members of other militias and members of other volunteer corps"
and "Members of regular armed forces who profess allegiance to a
government or authority not recognized by the detaining powers."
Article 5 stipulates that disputes over the status of prisoners
cannot be unilaterally decided by the Detaining Power but must be
arbitrated by third parties: "Should any doubt arise as to whether
persons, having committed a belligerent act and having fallen into
the hands of the enemy, belong to any categories enumerated in
Article 4, such persons shall enjoy the protection of the present
Convention until such time as their status has been determined by a
competent tribunal."
Further, prisoners may not be indefinitely detained following the end
of hostilities. Under terms of the Geneva Convention those held must
be either repatriated or charged with specific crimes.
The Bush administration actions violate even official US military
policy. According to Army regulations, "Leaders and soldiers must be
knowledgeable of the Geneva and Hague conventions, applicable
protocols, AR (Army Regulations) and US laws."
"The US policy demands that all persons who are captured, detained,
or held by US forces during conflict be treated humanely. This policy
applies from the moment captives are taken until they are released,
repatriated or transferred."
A 1994 Department of Defense document on the treatment of prisoner of
war states: "It is DoD policy that: 1 The U.S. Military Services
shall comply with the principles, spirit, and intent of the
international law of war, both customary and codified, to include the
Geneva Conventions."
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