By MARGOT PATTERSON

Criticism continues to grow of the U.S. treatment of captured fighters from Afghanistan who are being held at the U.S. military base in Guantánamo Bay, Cuba. The United States is calling the captives “detainees” or “unlawful combatants,” but the European Union, the U.N. secretary general and the U.N. High Commissioner for Human Rights Mary Robinson have joined such human rights organizations as Amnesty International and Human Rights Watch in saying the detainees should be regarded as prisoners of war due all the legal protections afforded prisoners of war by the third Geneva Convention.

Concern about the approximately 160 prisoners at Guantánamo Bay, so far muted in this country but growing overseas, focuses not only on the detainees’ ambiguous legal status, which the United States has so far resisted clarifying, but on their physical confinement in Cuba and the conditions in which they were transported there. Prisoners were manacled, shackled and hooded and at least a few were sedated on the long flight to Cuba. Some may have had their beards forcibly shaved in violation of their religion. They are being kept outside in roofed eight-foot-square chain-link cages where they are exposed to wind and rain.

Cages called ‘a scandal’

Jamie Fellner, director of the U.S. program of Human Rights Watch, called the cages “a scandal.” Amnesty International said such cages “fall below minimum standards for humane treatment” and criticized the hooding and drugging of prisoners during transport. Photos of al Qaida suspects, hooded while awaiting interrogation in Afghanistan, prompted the human rights organization to send the U.S. secretary of defense a letter in early January reminding him that the U.N. Committee against Torture has condemned the hooding and blindfolding of suspects during interrogation.

Amnesty International spokesman Alistair Hodgett said hooding prisoners during detention violates principles set down by the U.N. General Assembly that prisoners should not be deprived of their natural senses. Hooding is of concern, said Hodgett, because mistreated prisoners who are hooded or blindfolded cannot identify those who abused them.

While saying that most of the protections set down by the Geneva Conventions would be provided the detainees in Cuba, Secretary of Defense Donald Rumsfeld has insisted the captives held at the base in Cuba are not legal combatants and as such are not prisoners of war, a legal status that would provide them with greater rights under the Geneva Conventions, which the United States and most other nations are party to.

Nonetheless, the Department of Defense said the U.S. government would treat the detainees according to the guidelines of the Geneva Conventions and give them proper food, water, medical treatment, shelter and security. Capt. Riccoh Player, a Department of Defense spokesman, said the detainees have time in their schedule for exercise, for prayer and meditation, and are fed three “culturally appropriate meals” a day.

In a Jan. 16 statement about the U.S.-held prisoners at Guantánamo Bay, U.N. High Commissioner for Human Rights Mary Robinson reminded Americans that international legal obligations are to be respected and that any dispute about the detainees’ entitlement to prisoner of war status must be decided by a competent tribunal in accordance with the provisions of Article 5 of the Third Geneva Convention. The International Committee of the International Red Cross, which administers the Geneva Conventions, also holds that in an international conflict all parties should be awarded prisoner of war status unless and until an independent court deems otherwise, said committee spokesman Kim Gordon-Bates.

Like any legal document, the wording of the Geneva Convention has some complexity to it, but human rights advocates say that while captured al Qaida fighters may not meet the criteria the Geneva conventions established for prisoners of war, Taliban soldiers, who were representatives of the government of Afghanistan, most likely would.

“Most experts around the world are condemning the position taken by the U.S government. It’s just balderdash,” said Francis Boyle, a professor of international law at the University of Illinois in Champaign, who has served as the general agent representative of Bosnia Herzegovina before the International Court of Justice.

Under the Geneva Conventions, prisoners of war cannot be required to furnish any information in interrogations other than name, rank and serial number and if they are prosecuted for war crimes, they must be tried by the same courts under the same rules as members of the detaining country’s armed forces, a provision that would mean Afghan fighters could be tried in civilian courts or in military courts-martial but not in the military tribunals the Bush administration has created.

Prisoners of war cannot be tried for taking up arms in defense of their country. All prisoners, including those who lack prisoner of war status, have the right to legal counsel if they are interrogated not simply for the purpose of gaining information but for prosecution. So far, the United States has not said what it intends to do with the prisoners it is holding. Rumsfeld said some may be tried by civilian courts, some by military tribunals and some may be shipped back to their home country for trial.

In legal limbo

Officials at Guantánamo Bay say no interrogations have taken place. Amnesty International is calling on the U.S. government to clarify the legal status of the detainees. “There are certain minimum standards of treatment for detainees, regardless of whether you grant them prisoner of war status. The United States has resisted choosing from among one of the recognized standards for a detainee. It leaves the men in legal limbo without a status that grants them rights under law,” said Hodgett.

Boyle said the United States is opening itself up to reprisals if Taliban or al Qaida forces capture U.S. soldiers. “We are threatening the integrity of not only the Third Geneva Convention on prisoners of war but the entire Geneva Conventions structure. It’s a very serious matter,” said Boyle.

The Geneva Conventions are a series of international treaties made in Geneva between 1864 and 1949 to ease the effects of war on soldiers and civilians. They provide for the treatment of wounded and sick soldiers, for the protection of civilian persons during war, and for humane treatment of captured prisoners.

The dispute over the United States’ perceived flouting of international law is so far a much bigger story abroad than it is at home. Abroad photos released by the Department of Defense showing the prisoners kneeling before their captors with manacled hands, shaved heads and wearing blacked-out ski goggles, surgical masks and ear cups have led to charges of torture and have fueled debate over American violations of international norms.

“If indeed we are committed to tackling international terrorism, examples of Western powers not taking seriously Muslim religion, Muslim lives and Muslim human rights will work against success,” observed Glenda Jackson, a member of Parliament, in a debate in the British Parliament.

‘These are not schoolchildren’

U.S. Sen. Joseph Lieberman, D-Conn., a member of the Senate Armed Services Committee, has defended the administration’s handling of the prisoners at Guantánamo Bay. “Yes, they’re being treated tough, but these are not schoolchildren,” said Lieberman. “They are dangerous people. I think our military is doing just the right thing in the way they are handling them at Guantánamo.”

In the United States, a legal challenge to the treatment of the prisoners has been filed by a coalition of Los Angeles clergy, journalism professors and civil rights attorneys, including former U.S. Attorney General Ramsey Clark, demanding that the detainees at Guantánamo be taken before a court and told the charges against them. Judge A. Howard Matz, a federal judge in Los Angeles, will decide whether a federal court has jurisdiction over the prisoners in Cuba.

Boyle said decisions about the detainees in Cuba are being made by Federalist Society lawyers at the White House rather than international law experts at the Pentagon. Boyle said President Bush had been criminally misadvised by his lawyers who have incriminated him and created a situation where the president is open to universal prosecution just as former Chilean leader Augusto Pinochet was in London. Boyle said Bush had not only violated international law but U.S. domestic law passed under former President Clinton that supports the Geneva Conventions.

Writing for The Independent newspaper in London, Adam Roberts, Montague Burton Professor of International Relations at Oxford University, said “observance of international standards generally, and the coalition cause, may be in jeopardy if the U.S. ignores basic norms.”

Margot Patterson is a senior writer for NCR.

National Catholic Reporter, February 1, 2002

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