More Lies on Afghan prisoners
WSWS : News & Analysis : The US War in Afghanistan
Defending the indefensible:
More US lies on Afghan prisoners and Geneva Convention
By Kate Randall 5 February 2002
The US treatment of the 158 prisoners being held in Guantanamo Bay,
Cuba has generated shock and revulsion around the world. Photographs
showing the captives on their arrival, kneeling on rocky ground, with
blacked-out goggles and their hands shackled behind their backs,
conjure up images of the treatment meted out by Latin American
dictatorships against their opponents.
But despite growing condemnation of US policy at "Camp X-Ray," the US
continues to maintain that the men are "detainees," and not prisoners
of war who must be afforded all the protections of the Geneva
Convention. In fact, government officials contend that the prisoners—
who are locked in individual open-air cages made of concrete and
chain-link fencing—are being treated humanely, and should be happy to
be in "sunny Cuba."
Recent statements by President Bush that he might consider applying
the rules of the 1949 treaty to the prisoners in Cuba represent a
shift in rhetoric on the part of the administration, and not a
substantive change in policy. Bush and Defense Secretary Donald
Rumsfeld have made it clear that under no circumstances will the
detainees be designated as prisoners of war. They maintain the
position that they are "unlawful combatants" who can be interrogated
at will and held indefinitely.
Responding to international pressure over US policy, in a memo leaked
to the press last week Secretary of State Colin Powell urged the
administration to consider applying the Geneva Convention to the
process of determining the status of the Guantanamo prisoners.
Members of the Joint Chiefs of Staff also reportedly support a change
in official US policy. But these gestures are also thoroughly
hypocritical, and not motivated by any humanitarian consideration for
the civil liberties of the prisoners.
The overriding concern of the military chiefs is that the US policy
might set a precedent for the mistreatment of captured US soldiers in
the future. And while Powell is worried that the administration's
flouting of international law will discredit the US among its allies
in Europe and the Middle East, he has also made it clear that the
prisoners should never be granted POW status.
"The debate is not actually over whether these people are prisoners
of war," the New York Times quotes one State Department official as
saying. "They are not. The debate is why they are not prisoners of
war." In other words, Powell and others in the administration,
including Rumsfeld, are considering using the process of the Geneva
Convention—presumably utilizing tribunals to determine POW status—to
arrive at a determination they have already decided upon in advance.
The Washington Post quotes an unnamed administration official making
the same point: "We already know the end point, which is they're not
POWs.... Now the question is, why are they not POWs." Overall, the
statements emanating from the White House and other sections of the
government are full of such doubletalk, and are aimed at confusing
public opinion while proceeding with the same brutal policy. The Bush
administration is also counting on the general lack of knowledge in
the American public about the Geneva Convention and is resorting to
verbal trickery and outright lies to justify its position.
The first lie is that the US can choose whether or not to abide by
the Geneva Convention. Article 1 of the Conventions states: "The High
Contracting Parties undertake to respect and to ensure respect for
the present Convention in all circumstances." Article 2 says
that "the present Convention shall apply to all cases of declared war
or any other armed conflict which may arise between two or more of
the High Contracting Parties, even if the state of war is not
recognized by one of them."
Both the US and Afghanistan are signatories to the 1949 treaty. The
Bush administration declared a "war on terrorism," and went to war
against Afghanistan, publicly stating that the ousting of the Taliban
regime was its objective. The US initiated bombing raids and
dispatched ground troops. But when enemy fighters are captured,
including Taliban, the government claims they are not prisoners of
war and their treatment is not governed by international law.
Even if the US wants to claim that they are not POWs because the US
never formally declared war, this doesn't pass muster, as the Geneva
Convention does not require that both parties recognize a state of
war. This is a ludicrous argument in any event, as the people of
Afghanistan undoubtedly interpreted the dropping of multi-ton bombs
and the ravaging of their country as a clear sign that the US was
waging war against them.
Bush also claims the reason these captured fighters are not POWs is
because "al Qaeda is not a known military. These are killers, these
are terrorists, they know no countries." Defense Secretary Rumsfeld
commented: "They will not be characterized as prisoners of war,
because that is not what they are. They're terrorists."
But all that has been established about these prisoners is that they
were captured by the US in course of an invasion of Afghanistan. Many
of those fighting with the Taliban came into Afghanistan after the US
launched the war and may not have had any connection with Osama bin
Laden and al Qaeda.
But the Bush administration purposely describes the Guantanamo
prisoners as including both Taliban and al Qaeda, using the terms
interchangeably, in an effort to blur any distinction and justify
their refusal to grant any of them POW status. Calculating that
members of al Qaeda are less likely to qualify as prisoners of war,
they utilize this verbal trick in an attempt to cover up their
blatant violation of international law.
Article 5 of the Geneva Convention states: "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 of the 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."
In other words, it is not up to the US to dictate who is a POW and
who is not. Furthermore, until their status is determined, they must
be provided with all the protections of a prisoner of war. All those
detained have the right to refuse to provide any information aside
from name, rank and serial number. Whether or not they are determined
by a tribunal at a later time to be terrorists, or defendants to be
tried for war crimes, can have no bearing on their treatment upon
capture.
Another baseless contention of the Bush administration is that the
prisoners in Guantanamo do not qualify as POWs because they do not
meet the four requirements contained in Article 4, section 2 of the
Geneva Convention. These include being under the control of superior,
having a "fixed distinctive sign," carrying arms openly and
functioning in accordance with the "laws and customs of war."
These four items have been wrongly cited in numerous press reports as
the virtual litmus test for POW eligibility. But in truth these
requirements apply to only one of the many categories of captured
soldiers that are afforded prisoner of war status by the Conventions,
including some members of organized resistance movements and other
volunteer corps. The majority of potential POWs—including both
civilian and military forces—are not required to meet these
qualifications. Again, US officials have thrown up this argument in
an effort to deflect attention from their refusal to abide by Geneva
Convention.
In fact, the overwhelming majority of prisoners taken in Afghanistan
were captured in the course of open combat, and would clearly qualify
for POW status as defined in Article 4, section 1, as "Members of the
armed forces of a Party to the conflict as well as members of
militias or volunteer corps forming part of such armed forces."
Nearly all of them were captured by the Northern Alliance and then
handed over to the US. Even the so-called al Qaeda are largely
prisoners captured from the "Arab Brigade," which fought as a regular
combat unit.
It has also been reported that some prisoners were not even aware
until their arrival in Guantanamo of the September 11 terrorist
attacks, a further indication that they are not part of any terrorist
organization and are mainly poor and misled Muslim youth who joined
up to fight the Northern Alliance.
The criteria for qualifying for prisoner of war status in the Geneva
Convention is extremely broad, and includes a wide variety of
categories of those who can be considered POWs. These included
civilians, engineers, war correspondents, members of resistance
groups, and members of militias not recognized by one of the warring
parties.
The treatment and accommodations of the prisoners in Guantanamo also
violate the provisions of the Geneva Convention, which the US has
chosen to defy. Article 25 states: "Prisoners of war shall be
quartered under conditions as favourable as those for the forces of
the Detaining Power who are billeted in the same area." Being held in
6-foot by 8-foot chain-link, open-air cages hardly qualifies. Article
21 also states that "prisoners of war may not be held in close
confinement except where necessary to safeguard their health and then
only during the continuation of the circumstances which make such
confinement necessary."
Life in a POW camp as outlined in the Conventions is far different
from that which exists at Camp X-Ray. Article 28 stipulates
that "Canteens shall be installed in all camps, where prisoners of
war may procure foodstuffs, soap and tobacco and ordinary articles in
daily use." According to the April 38: "Prisoners shall have
opportunities for taking physical exercise, including sports and
games, and for being out of doors. Sufficient open spaces shall be
provided for this purpose in all camps."
Bush administration officials would counter that such conditions
should not be provided for "terrorists." But the US has taken it upon
itself to reject POW status for these men—without bringing them
before a "competent tribunal," as set down in the Geneva Convention.
This also means their questioning of the prisoners is not subject to
the scrutiny of international law. On January 23, interrogators from
several US civilian and military agencies began questioning the
prisoners in Guantanamo. The prisoners have been isolated and
questioned individually, and have not been provided legal
representation.
Another reason the US does not want to grant POW status to these
prisoners is because under the Geneva Convention "Prisoners of war
shall be released and repatriated without delay after the cessation
of active hostilities" (Article 118). The Bush administration wants
to reserve the right to hold the prisoners indefinitely, subject them
to interrogation and possibly try them in military tribunals. A US-
backed regime has been installed in Afghanistan and hostilities have
effectively ceased, but the Bush administration has given no
indication that the prisoners will be repatriated to their native
countries.
An estimated 25 countries are represented among the prisoners,
including Britain, Australia, France, Belgium, Sweden, Algeria,
Yemen, Afghanistan and Pakistan. France has sent a delegation to the
base to verify the citizenship of a number of French-speaking
prisoners. Australia has asked that the one Australian national known
to be among the prisoners be returned to that country to face
charges. Saudi Arabia says that 100 of its citizens are being held in
Guantanamo. About 15 percent of the prisoners are Afghans. The US
claims that even these Afghan soldiers—captured fighting on their own
soil—do not qualify as POWs.
Defense Secretary Rumsfeld said Wednesday that the number of
prisoners transported from Afghanistan to Cuba will most likely be
far fewer than the 2,000 earlier projected. Late last month the
Pentagon suspended all flights of prisoners to the base, saying they
would need more interrogators and detention cells to handle a new
influx of prisoners.
In addition to the prisoners in Guantanamo Bay, the US says there are
309 suspects being held in military custody in Afghanistan. Rumsfeld
said "thousands of these people" are still being held by the Afghans,
Pakistanis and US forces in Central Asia. Many of these prisoners
have been held in appalling conditions since mid-November in
makeshift prisons and jails, and their plight has received little
media attention.
The Shibarghan prison in northern Afghanistan is packed with about
3,500 men, more than 10 times its capacity, with prisoners sleeping
up to 60 men to each six-by-nine foot room, on cold concrete floors.
The prison is about 75 miles west of Mazar-i-Sharif, the scene of a
US-led massacre of hundreds of POWs inside the Qala-i-Janghi prison
in late November. Shibarghan is the base of the Uzbek warlord General
Abdul Rashid Dostum, who was in charge of the surrender of Kunduz and
the thousands of captured Taliban.
The prison warden said that US interrogators—looking for Taliban
leaders and al Qaeda members—moved several dozen prisoners from
Shibarghan in December. One of General Dostum's commanders said the
other prisoners would remain until the US completes its
investigations. One Afghan prisoner pleaded with reporters: "Will we
be here forever? No one can tell us. We were simple fighters. We know
nothing about the Taliban leaders."
Like the prisoners at Guantanamo, these prisoners have not been
afforded POW status and their treatment is not subject to its
protections. A delegation for the Physicians for Human Rights, which
visited Shibarghan earlier this month, wrote in its report on the
prison conditions: "The United States cannot wash its hands of
responsibility for prisoners whose fate from the start it has been in
a position to influence or determine."
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