- Would you want your life to be in the hands of US secretary
of defence Donald Rumsfeld? Hundreds of captured Taliban and al-Qaida fighters
don't have a choice. Chained, manacled, hooded, even sedated, their beards
shorn off against their will, they are being flown around the world to
Guantanamo Bay, a century-old military outpost seized during the Spanish-American
war and subsequently leased from Cuba by the US. There, they are being
kept in tiny chain-link outdoor cages, without mosquito repellent, where
(their captors assure us) they are likely to be rained upon.
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- Since Guantanamo Bay is technically foreign territory,
the detainees have no rights under the US constitution and cannot appeal
to US federal courts. Any rights they might have under international law
have been firmly denied. According to Rumsfeld, the detainees "will
be handled not as prisoners of war, because they are not, but as unlawful
combatants".
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- This unilateral determination of the detainees' status
is highly convenient, since the 1949 Geneva convention on the treatment
of prisoners of war stipulates that PoWs can only be tried by "the
same courts according to the same procedure as in the case of members of
the armed forces of the detaining power". The Pentagon clearly intends
to prosecute at least some of the detainees in special military commissions
having looser rules of evidence and a lower burden of proof than regular
military or civilian courts. This will help to protect classified information,
but also substantially increase the likelihood of convictions. The rules
of evidence and procedure for the military commissions will be issued later
this month by none other than Donald Rumsfeld.
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- The Geneva convention also makes it clear that it isn't
for Rumsfeld to decide whether the detainees are ordinary criminal suspects
rather than PoWs. Anyone detained in the course of an armed conflict is
presumed to be a PoW until a competent court or tribunal determines otherwise.
The record shows that those who negotiated the convention were intent on
making it impossible for the determination to be made by any single person.
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- Once in front of a court or tribunal, the Pentagon might
argue that the Taliban were not the government of Afghanistan and that
their armed forces were not the armed forces of a party to the convention.
The problem here is that the convention is widely regarded as an accurate
statement of customary international law, unwritten rules binding on all.
Even if the Taliban were not formally a party to the convention, both they
and the US would still have to comply. The Pentagon might also argue that
al-Qaida members were not part of the Taliban's regular armed forces. Traditionally,
irregulars could only benefit from PoW status if they wore identifiable
insignia, which al-Qaida members seem not to have done. But the removal
of the Taliban regime was justified on the basis that al-Qaida and the
Taliban were inextricably linked, a justification that weakens the claim
that the former are irregulars.
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- Moreover, the convention has to be interpreted in the
context of modern international conflicts, which share many of the aspects
of civil wars and tend not to involve professional soldiers on both sides.
Since the convention is designed to protect persons, not states, the guiding
principle has to be the furtherance of that protection. This principle
is manifest in the presumption that every detainee is a PoW until a competent
court or tribunal determines otherwise.
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- This too is the position of the International Committee
of the Red Cross, which plays a supervisory role over the convention. The
Red Cross and Amnesty International have both expressed concerns over the
treatment of the detainees.
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- The authorities at Guantanamo Bay have prohibited journalists
from filming the arrival of the detainees on the basis that the convention
stipulates PoWs "must at all times be protected against insults and
public curiosity". The hypocrisy undermines the position on PoW status:
you can't have your cake and eat it.
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- Even if the detainees were not PoWs, they remain human
beings with human rights. Hooding, even temporarily, constitutes a violation
of the 1984 convention against torture and cruel, inhuman or degrading
treatment. Apart from causing unnecessary mental anguish, it prevents a
detainee from identifying anyone causing them harm. Forcefully shaving
off their beards constitutes a violation of the right to human dignity
under the 1966 international covenant on civil and political rights. Forcefully
sedating even one detainee for non-medical reasons violates international
law. Although strict security arrangements are important in dealing with
potentially dangerous individuals, none of these measures are necessary
to achieving that goal. If human rights are worth anything, they have to
apply when governments are most tempted to violate them.
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- There are many reasons why these and other violations
are unacceptable. The rights of the detainees are our rights as well. Yet
international law can be modified as a result of state behaviour. If we
stand by while the rights of the detainees are undermined, we, as individuals,
could lose.
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- British and American soldiers and aid workers operate
around the world in conflict zones dominated by quasi-irregular forces.
The violations in Guantanamo Bay will undermine the ability of our governments
to ensure adequate treatment the next time our fellow citizens are captured
and held. Respecting the presumption of PoW status and upholding the human
rights of detainees today will help to protect our people in future.
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- The US has occupied much of the moral high ground since
September 11, and benefited enormously from so doing. Widespread sympathy
for the US has made it much easier to freeze financial assets and secure
the detention of suspects overseas, as well as secure intelligence sharing
and military support. The sympathy has also bolstered efforts to win the
hearts and minds of ordinary people in the Middle East, south Asia and
elsewhere. That might just have prevented further terrorist attacks.
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- Ignoring even some of the rights of those detained in
Guantanamo Bay squanders this intangible but invaluable asset, in return
for nothing but the fleeting satisfaction of early revenge. The detainees
should be accorded full treatment as PoWs and, if not released in due course,
tried before regular military or civilian courts - or even better, an ad
hoc international tribunal. As the world watches, vengeance is ours. But
so, too, are civilised standards of treatment and justice. ___ ·
Michael Byers teaches international law at Duke University, North Carolina.
He is currently a visiting fellow at Keble College, Oxford.
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- "The fact that I have no remedy for all the sorrows
of the world is no reason for my accepting yours. It simply supports the
strong probability that yours is a fake." -H.L. Mencken
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