Detainees or POWs?

Detainees or POWs? Ancient distinctions. By Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport. His views do no necessarily reflect those of any agency of the U.S. government. January 24, 2002 8:55 a.m.

as President Bush's decision launch a "war against terrorism" in response to September 11 now hoisted the United States on its own petard? That would seem to be the case as international organizations and even officials of allied countries such as Great Britain have intensified criticism of the United States concerning its treatment of captured al Qaeda and Taliban fighters and called upon the U.S. government to designate them "prisoners of war" (POWs), rather than as "detainees."

The charges that the detainees' living conditions at Camp X-Ray on Guantanamo Bay are inhumane and that they are being mistreated are absurd. But criticism of the U.S. treatment of the detainees is related to the far more important issue of the status of those being held by the United States. The U.S. maintains that they are "unlawful" or "unprivileged" combatants who "do not have any rights under the Geneva Conventions," that series of agreements that governs the status of captives in war. The U.S. position is that while we are, for the most part, adhering to the Geneva Conventions, the status of the detainees does not obligate us to do so.

This designation has been attacked by individuals and organizations, including Mary Robinson, United Nations High Commissioner for Human Rights, Amnesty International, and the International Red Cross. Such critics insist that the detainees are legally POWs, a designation that would trigger certain rights and protections under the Geneva Conventions.

For instance, a POW is not required to respond to interrogation beyond providing his name, rank, and serial or service number. He must be repatriated at the end of hostilities, unless he is charged with war crimes, in which case he must tried by the same court and under the same rules of evidence and procedure as members of the detaining power's armed forces would be. In other words, a POW would have to be tried by courts martial, not by military tribunals of the sort that have been authorized by the president.

Since President Bush has invoked a "war against terrorism," why shouldn't the captured fighters be accorded POW status? Many of the reasons advanced to deny them that status simply do not hold water. The claim that there was no congressional declaration of war is true, but it is arguable that congressional passage of the antiterrorism bill constituted a contingent declaration of war. In any event, as Justice Grier wrote in the Prize Cases decision (1863), a war is defined "by its accidents — the number, power and organization of the persons who originate and carry it out." No one with any sense can deny that the United States was at war as of 8:48 AM on Tuesday, September 11, 2001. The contention that the fighters did not wear uniforms is also true in the formal sense of Western armies, but they wore pretty much the same garb as our Afghan allies did.

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — "the common enemies of mankind."

The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution.

While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human-rights groups told the Washington Times, "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war."

At a recent conference in Europe, Marc Cogen, a professor of international law at Ghent University argued that "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities."

The status of the Taliban is more problematic. Despite the fact that the United States did not recognize the Taliban as the legitimate government of Afghanistan, critics argue that the Taliban's effective control of Afghanistan, its military structure and functioning government rendered it a de facto state, the troops of which should be accorded POW status. They point out that a legal ruling required the United States to accord Panamanian strongman Manuel Noriega POW status despite the fact that it did not recognize his government.

But a state that harbors latrunculi would seem to forfeit its own status as a legitimate state. The close association of al Qaeda and the Taliban, especially at the higher levels, vindicates the legal position of the United States in treating both al Qaeda and Taliban fighters as detainees rather than POWs.

Under the leadership of President Bush, the United States has eschewed vengeance against the perpetrators of September 11. Instead, it has pursued a patient, discriminating strategy designed to destroy the al Qaeda network while minimizing collateral damage. The fight will be a long one, and it will help to have the rest of the civilized world on our side. But the civilized world needs to distinguish between legitimate combatants on the one hand and latrunculi on the other. This distinction makes it clear that the United States has nothing to apologize for when it comes to its treatment of the detainees in its custody.

The "detainees" are indistinguishable from the (state-sponsored terrorist) Pirates of the Barbary Coast, and are "entitled" to the same treatment their predecessors often received: hanging from the yardarm.

Al-Queda? Probably. The Taliban? Probably not.

And as for the argument that states that sponsor terrorists and thieves aren't really states at all, it doesn't hold water. All the European nations (at least those that weren't landlocked) sponsored piracy during the 1500-1700's.

It is totally disingenuous to suggest pirates should be treated with the honor and respect due a military foe !

Captain John Morgan, after a very successful career as a pirate, was made the lieutenant governor of Barbados in the 1600's.

Sad to say, but I'm not sure you can argue that the Taliban aren't POW's.

As to why Rumsfeld doesn't want to call them POW's? Well, the problem is that after a war, POW's usually get send home. Sending Taliban members back to Afghanistan would be problematic, to say the least.

If there were POWs, how would the treatment they receive differ from the treatment they receive now?

In terms of physical treatment, nothing would change since the US is basically following Geneva Convention standards. As POWs, they can refuse to answer questions other than name, rank and ID, and if tried they must be tried by court martial, but only under the same conditions a US soldier would be tried, and only sentenced and punished in the manner a US soldier would be, and at the end of hostilities they would have to be repatriated. This will be difficult in cases where they no longer hold citizenship anywhere, or are not wanted back home. As unlawful combatants, however, they are not as protected from divulging information as a POW. Refusal to answer questions may get you a charge akin to obstruction of justice. Lying may get you something akin to perjury. You don't automatically get to go home after the war, and can be held for crimes after the war, and your conviction takes a majority, not a unanimous vote. essentially, there isn't much law out there protecting you at all if you are an unlawful combatant.

Our interest in keeping them from being labeled as POWs is for the preservation of the Geneva Convention itself. The Geneva Convention applies to 'lawful combatants,' and because it makes the distinction, it sems clear the convention was not designed for just 'anyone.' It does not cover unlawful combatants.... just people meeting specific requirements.

There is a reason for this; the purpose of the convention was to make this very distinction, so that there would be benefits to nations if they behaved according to the rules of war. Nations which discipline their forces so as to prevent violations of the rules of war, are entitled to having their forces treated as soldiers and POWs if captured. Groups which do not take such responsibilities, and permit and encourage their personnel to act freely and indiscriminently without fear of repercussion, as do terrorists, are not covered.

The Geneva Convention clearly notes the manner in which lawful combatants are to be treated. It makes no demands on the part of unlawful combatants, because no nation at the time of the signing had any interest in encouraging conduct contrary to the rules of war. And if protections were provided to those who used not military tactics, but instead used terrorist tactics (like hiding behind civilians or masquerading as civilians), then the convention would have had the effect of encouraging unlawful tactics.

The Geneva Convention required not just reasonably humane treatment for POWs, but also requires POWs to observe and comply with certain expectations. Among these, prisoners must give their real name, their rank, and whom they serve. They must also respect the authority of their captors and comply with basic instructions and orders, salute those of rank, and if required, captives that are not officers must perform reasonable labor as assigned. Captors in turn must provide for their security, keep captives out of harm's way and away from public ridicule, insure that the IRC gets to meet with the captives, provide medical care as needed, adequate food and quarters, etc.

Neither al-Qeada or Taliban have been forthcoming with accurate identification, not even providing their real names. One of the most fundamental requirements of a POW is to provide the captors with accurate names, rank and ID so that the captors can notify the prisoner's government authorities and families and so that aid packages may be received for each prisoner. Unlike real soldiers expecting POW status, neither al-Qeada nor the Taliban have been cooperative prisoners; some have threatened guards, almost all have lied about their identities, and most have no rank as we know it because their loose structure didn't call for it. Both organizations were trying to maintain deniability for the protection of their leadership. Neirther have a responsible force structure that would be associated with a lawful combatant force. In other words, the leadership remains cloaked and unidentified deliberately, and bears no responsibility for its own people. It lets its people do as they please in their war.

It is in the interest of all nations and parties which abhor terrorism to preserve the Geneva Convention for the protection only of those personnel who behave as disciplined soldiers from responsible states or parties, rather than as terrorists which act irresponsibly. This is neccessary to make terrorism as unpalatable as possible- and to make lawful tactics the norm. We must not blur the distinction betwen terrorism and legitimate warfare.

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The fact is in a WAR the victor always does whatever the victor wants to do to the losers.