US breaks the laws of war (again)

  • From: "Muslim News" <editor_@xxxxxxxxxxxxxxx>
  • To: <submit@xxxxxxxxxxxxxxx>
  • Date: Sat, 13 Apr 2002 10:18:16 +0100

The United States has invented a new category of captive, not covered by
the Geneva Convention: 'unlawful combatants'. And it has made sure that
nobody can question this unilateral designation by holding the prisoners
taken in Afghanistan in the no-nation's-territory of the Guantanamo base
on Cuba. What, legally, is going on? 

The legal position of the prisoners taken in Afghanistan by United
States' troops is at the heart of a debate that has been confused by US
statements and by a degree of international compliance in the name of
the fight against terrorism. 

According to the US authorities, the detainees transferred to the
military base at Guantanamo Bay on Cuba are "unlawful combatants, who
have no rights under the Geneva Convention". But the Geneva Convention
of 27 July 1929 relative to the treatment of prisoners of war, as
amended in 1949, undoubtedly does apply to the Guantanamo detainees. 

The Convention, ratified by the US, applies "to all cases of declared
war or of any other armed conflict which may arise between two or more
of the High Contracting Parties, even if the state of war is not
recognised by one of them." The term "war" has been explicitly replaced
by the phrase "armed conflict" and this more general expression clearly
applies to the US action in Afghanistan. 

According to the preparatory work for the Geneva Convention, any dispute
between states involving the use of armed forces is an armed conflict
within the meaning of the convention. The US has undoubtedly engaged in
armed action against the de facto authorities in charge in Afghanistan. 

The convention applies irrespective of the duration of the conflict, the
extent to which it results in bloodshed, and the size and standing of
the forces involved. It covers "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" who are captured by one of the
belligerents. This broad form of words was chosen to avoid uncertainties
arising from the diverse nature of combatants. The Taliban and
volunteers in Afghanistan clearly fall into the category of prisoners of
war. 

The label of "terrorist" attached by Washington to some detainees,
notably members of al-Qaida, does not apply and the term "unlawful
combatant" is unknown in international law. The principle is that anyone
captured bearing arms is presumed to be a prisoner of war in the absence
of evidence to the contrary. Only a competent tribunal can determine the
status of the accused. 

The transfer of prisoners to Guantanamo Bay compounds the legal
confusion over the status of the detainees. According to the Geneva
Convention, "prisoners of war must at all times be humanely treated" and
"likewise ... must at all times be protected, particularly against acts
of violence or intimidation and against insults and public curiosity"
(Article 13). 

Conditions of transfer are subject to the same rules: "The transfer of
prisoners of war shall always be effected humanely and in conditions not
less favourable than those under which the forces of the Detaining Power
are transferred" (Article 46). 

It must be said that the treatment of the detainees does not meet those
requirements. The refusal to apply the convention inevitably means that
the prisoners have no rights and this in turn gives the US authorities
carte blanche to interrogate them in whatever way they wish. Prisoners
of war are only required to state their name, rank and number, and they
must be released and repatriated as soon as hostilities cease. 

The place of detention was chosen not only because it was close to US
territory but also, apparently, because the base in question is not on
American soil. According to Washington, the US constitution does not
apply there. Also, the decision to opt for court martial allows them to
dispense with the rights of defence guaranteed under the American
constitution. 

Under the Geneva Convention, prisoners are entitled to a fair and
regular trial and to means of defence, and they have the right of
appeal. But the military court envisaged by the US administration does
not meet these conditions. In a move that suggests confusion and
embarrassment, the US State Department has stated that the accused may
engage civil as well as military defence counsel, that the hearings may
be held in public if national security is not at issue, that a death
sentence can be handed down only by unanimous decision and, lastly, that
an appeals board may be set up. 

Amang all these uncertainties, one thing is clear: the US is in breach
of international law and its obligations under the Geneva Convention. 

Source:  Le Monde diplomatique

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