Re: US is Violating POW Accord

Date: January 27, 2004

"U.S. Is Violating Accord on POWs
by Leon Friedman
 
On Jan. 9, the Defense Department announced that Saddam Hussein - often described by the administration as a vicious supporter of al-Qaida - would be granted prisoner of war status.

Under the Geneva Convention, he is therefore entitled to humane treatment; he is not required to supply information to his captors beyond his name, rank and serial number; he is entitled to visits by international humanitarian organizations (such as the Red Cross); and he must be "repatriated" after the war is over.

At the same time, Washington continues to insist that the low-level Taliban troops and foreign fighters captured in Afghanistan, who fought against the Northern Alliance to defend their regime, are "enemy combatants" and not prisoners of war.

Thus, they are entitled to none of the Geneva Convention benefits. They can be kept at the U.S. base at Guantanamo Bay, Cuba, indefinitely with no rights and can be grilled for information for as long as the war on terror continues - meaning, indefinitely.

Labeling Hussein a prisoner of war is peculiar, to say the least. George W. Bush has called him the arch-terrorist of our time. In a speech in October 2002, the president discussed Hussein's many links to terrorist organizations. In his State of the Union message last year, the president stated that "Saddam Hussein aids and protects terrorists, including members of al-Qaida."

It is a serious violation of American criminal law to provide material support to terrorist organizations. If Hussein is a serious criminal under our law, why should we afford him the protections of POW status? When we captured President Manuel Noriega in 1990, after invading Panama, we put him on trial as a drug dealer. If we really believed that Hussein should be entitled to prisoner-of-war status, why are we questioning him about his underground supporters, which is prohibited by Geneva?

We have announced that we intend to turn Hussein over to a court in Iraq to be tried for his crimes against his own people. That is hardly the "repatriation" contemplated by the Geneva treaty. So the prisoner-of-war designation is meaningless, just a charade to hide our own failure to abide by international law in other areas. We are just saying to the world community: "See, we abide by international treaties - once in a while."

But where the Geneva Convention really counts, we ignore it entirely. For the past two years we have kept 660 prisoners from Afghanistan without affording them any of the rights guaranteed by the convention. These are members of the Taliban militias and foreign fighters who defended the regime.

The government argues that the Guantanamo prisoners are not entitled to any of the benefits of the Geneva Convention since they do not fall within the treaty's definition of "prisoners of war." But it has totally distorted and misread its relevant provisions.

The Geneva Convention defines three classes of persons entitled to prisoner-of-war status. The first is defined 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."

The second class is defined as "Members of other militias and members of other volunteer corps" who (1) are under responsible command, (2) carry arms openly, (3) have "a fixed distinctive sign recognizable at a distance," and (4) are part of a force that conducts operations in accord with the law of war.

The third class are inhabitants of a nation who "spontaneously take up arms to resist the invading forces without having had time to form themselves into regular armed units."

The government argues that the Taliban and foreign fighters fall in the second category, but don't meet the four specifications in the treaty since they were not under responsible command and did not wear proper uniforms.

Virtually every international law expert has rejected the U.S. argument. The regular Taliban forces were certainly part of the "armed forces of a party" or, at the least, persons who voluntarily took up arms to defend a nation without forming themselves into a regular army. There is no requirement of uniforms or responsible command for those persons.

The foreign volunteers were part of and supported the Taliban government and therefore should also be entitled to the protections of Geneva. It is only a militia that is totally distinct from the government itself and not under its control that has to meet the four criteria, such as the forces controlled by independent warlords. Furthermore, there is certainly a substantial debate whether the foreign forces did in fact wear proper "insignias viewable at a distance" and follow their leaders.

But even if there is some question about the captives fitting within the protection of the treaty, the explicit terms of the Geneva Convention require that they are entitled to its full protection "until such time as their status has been determined by a competent tribunal." Thus, the government cannot unilaterally deprive them of protected status until a "competent tribunal" has spoken.

The Bush administration has steadfastly refused to let a U.S. court or any other tribunal "determine" that status, arguing that no American court can hear the prisoners' complaints because Guantanamo is on foreign soil.

It also continues to pump the prisoners for information and refuses to repatriate them, in contravention of the treaty.

However, the rule of law will finally apply. The Supreme Court agreed in November to decide whether American courts can review the prisoners' status.

© 2004 Newsday, Inc."