US doesn't have the right to decide who is or isn't a PoW

The Guardian 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.

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".

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The most frightening thing about this drivel is not what it says, nor that it was published in a leftist newspaper in England presuming to tell the US how to conduct a war against it. The most frightening thing is that the politically bigoted and legally false screed was written by a professor who "teaches international law at Duke University."
The Geneva Convention provides four conditions for covering persons captured in war. The Al Qaeda fighters fail all four conditions. Therefore, in the words of the Convention itself, they are "illegal combatants" and not entitled to the provisions of the Convention.
Likewise, Ex Parte Quirin, 1942, is a brief, unanimous Supreme Court decision which determined that eight German saboteaurs who came onto beaches in Long Island and Florida were "illegal combatants, and could be tried by "military tribunals" under a law passed by Congress in 1806 to deal with the Barbary pirates.
The more time I spend dealing with academics and the press, the more contempt I have for bigoted academics who will write garbage like this, and bigoted editors who will publish it and foist it on the reading/viewing public.
Other than those minor defects, this is a fine article.

Congressman Billybob

Click and bookmark for Phil and Billybob in the mornings.

Rummy's right, the Arab terrorists are not soldiers, and therefore not prisoners of war.

According them POW status carries with it the considerable, and odious, freight of according terrorist NGO's statal status and
the right to levy war. Soldiers' POW status recognizes their legal status on the battlefield as duly appointed representatives of
their governments. NGO's have no right to levy war, and their goons have no right to the status of a lawful combatant.

Okay, so you are assuming they have no legal right, despite the fact that the organization existed openly with the full knowledge and blessings of all forms of government in that area, we must classify them as unlawful combatants. What happens if a group of our fighters are captured by them? Where is our formal Declaration of War as established in the Constitution as a prerequesist for engaging in hostilities? And against whom? If we are truly facing a "War On Terrorism" that will require us to prepare for "years of war" (according to GW himself) then the deployment of troops into a specific area for such an expected period of time clearly exceeds anything the President of the united States can order on his executive authority. From the other sides point of view, we are not obeying our own Constitution And since we are targeting these "combatants," capturing them if they are not killed, does that in fact clearly demonstrate that we (united States) consider then to be the enemy and therefore they are in fact POW's due to the specific targeting? Tell you what, if I was on the receiving end of an arclight I dang sure would thing someone was at war with me.

Consider further: if the lefties at the Guardian were considering instead the right of the Michigan Militia to undertake
international military ops on behalf of a plausibly denying government somewhere, where do you think the Guardian would
come down on that issue?

Gawd himself only knows what they will come up with. Even socially deprived monkeys will beat the law of averages every now and then. That is not the issue. The real issue here is a problem of semantics and definition. With our people running around with terrorist fever SOMEONE needs to stop, take a breath, write a half dozen sentences on a piece of paper declaring a formal State of War and against whom or what and get it through the correct Constitutional process.

To engage in hostilities with out such definition is to hand over to the government of the u.S. card blanch on the entire situation, to which we have seen time and again it (or any other government) can not be trusted with so much blind power. Look at what the "War on Drugs" got us. More government intrusion into private citizens lives than any one could have imagined. And that is gonna be tinker toys next to what will happen to us all if there is no "off switch" to the war on terrorism. Somewhere in all of this there must be a "finish line." That is what our founding fathers knew about standing armies and unlimited government power. What does a government usually do with the troops when the battles have been fought? Where is the definition of the "victory"?

This is another case of an internationalist Leftie sending out the call to his buds in the various international agencies to begin
playing "Mother May I?" with the United States. His objective is to deny the United States the right, and the practical ability, to
obtain direct satisfaction from its assailants. Instead, we must go crawling to the one-worlder agencies and their toadies and
hangers-on to beg for justice, as if our ancestors never provided us both a Navy and a Marine Corps to vindicate us.

Even more reason to formally declare war, spell out against what and who, then quit playing this cool sounding "specops" game and vaporize the general area. It may have already cost us more than we know, what with the apparent escape of OBL. Granted he may be nothing more than a smelly spot in a pile of rocks, but if he did get away because the u.S. did not go for full deployment starting September 15, we are gonna look stoooopid. Then there will be no end to the punks that will come up with silly krap that will get more of our citizens killed. For example, the "shoe bomber". . . .

I say lets get a formal Declaration of War through the correct Constitutional process and kick some SERIOUS ass. The way we are going, we will be chasing ghosts 10 years from now.

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