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Statement
of Elisa Massimino Director
of the Washington Office of Human Rights First
The Bush Administration today announced that it “believes in
the principles” of the Geneva Conventions in dealing with the
detainees on Guantanamo. Believing in these principles and actually
complying with them, however, are two entirely different things --
and there is no in-between.
Today’s announcement that the U.S. is applying
the Geneva Conventions is simply not supported by the facts. Applying
the Geneva Conventions requires that all of the detainees on Guantanamo
will have a recognized legal status; it requires that all the detainees
are presumed to be prisoners of war until each appears before a “competent
tribunal.” At that time, a determination is made to retain prisoner
of war status or to classify the detainee as a civilian. These are
the only two options.
The very decision to apply the Conventions requires
that the U.S. undertake a process involving individual determinations.
Until this is done, the detainees are afforded the status of prisoner
of war. While the Administration’s announcement today is a legal
puzzlement, the most confounding question is this: Why wouldn’t
the U.S. follow the specific requirements on status determinations
outlined in the Geneva Conventions when these terms would not prevent
the U.S. from doing what it says it wants to do: detain these individuals
and question them?
The Administration asserts that it is applying the
Geneva Conventions based on its physical treatment of the detainees.
But the crucial issue is legal treatment. This is critical for all
the reasons the White House has said the Geneva Conventions are
important for the safety of U.S. service members who may be captured
overseas. If the U.S. wants to be able to rely on the protections
in the Geneva Conventions, the U.S. must comply with them –
not just in word, but in deed.
Legal Analysis of the White House
Announcement on the Geneva Conventions
The two Geneva Conventions dealing with prisoners
of war and with civilians together provide clear guidance as to
how the legal status of the detainees should be determined.
- The Conventions create a presumption
that individuals apprehended in the war zone are prisoners of
war. If there is any serious doubt as to status, the specific
facts of each person’s case must be determined in a hearing
by a competent tribunal, at which the detainee is entitled to
make his case. U.S. military law has long provided a mechanism
for such tribunals, which were used in the Korean and Vietnam
wars.
- Under the Conventions, “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”
are prisoners of war. By acknowledging that “the Taliban
members are covered under the treaty because Afghanistan is a
party to the convention,” the Administration has conceded
the facts sufficient to establish prisoner of war status for the
Taliban. The fact that the U.S. has never recognized the legal
status of the Taliban government is irrelevant.
- Prisoners of war may not be
tried for mere participation in the armed conflict. They may,
however, be detained until the end of the hostilities in Afghanistan
and if the facts warrant, they may be tried for war crimes. The
Conventions are clear that even if convicted and sentenced for
war crimes, prisoners of war do not lose their status as prisoner
of war. While prisoners of war are only required to give their
name, rank and similar information, there is nothing in the Conventions
that prohibits further questioning of prisoners of war. Whether
they are prisoners of war or not, use of torture or other physical
or moral coercion is absolutely prohibited, though use of customary
police interrogation techniques including offers of incentives
and plea bargaining is permitted.
- Members of armed forces that
do not “form part of” the de facto Afghan government’s
armed forces may still claim prisoner of war status if they can
show the requisite competent tribunal that the forces they are
part of satisfy the four conditions of responsible chain of command,
fixed distinctive sign or uniform, open carrying of arms, and
generally complying with the laws and customs of war. These individuals
may also seek to demonstrate that the factual circumstances of
their arrest may have been misleading and that they are not members
of a hostile fighting force at all. For example, a prisoner may
have been captured on a tip from an Afghan source with an ulterior
motive to harm him.
- Even individuals who are determined by a competent
tribunal not to be prisoners of war have a legal status under
the Conventions, specifically under the Fourth Convention dealing
with civilians. As the International Committee of the Red Cross
has said, “All persons who find themselves in the hands of
a Party to the conflict or an Occupying Power of which they are
not nationals are protected persons. No loophole is left.”
Under the Fourth Convention, a civilian (non-prisoner of war)
who is suspected of a serious war crime is entitled to specified
minimal rights, including: right to confidential communications
with counsel of his choice; prompt notice of the charges, including
receipt of any documents that would be given in a trial of a U.S.
soldier for the same crime; the right to present evidence and
call witnesses, the right to a public trial (subject to reasonable
security measures), and the same appeal rights as a U.S. soldier
would receive in the same situation, which would require an independent
appellate court, such as the Court of Appeals for the Armed Forces
that hears appeals from U.S. courts martial.
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