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International Law Forbids Trials of POW'S Before Military Commissions; Violation of Convention May Amount to War Crime

Human Rights Group: Geneva Convention Requires US to Treat Guantanamo Bay Prisoners as POWs

by Alexander Cockburn And Jeffrey St. Clair

Lawyers with the New York-based Center for Constitutional Rights (CCR), a leading constitutional rights and international human rights law group, said today that by failing to classify the Al Qaeda and Taliban prisoners held on Guantanamo Bay as prisoners of war, U.S. official may be committing a war crime.

According to CCR Vice President and international human rights attorney, Michael Ratner, Article 5 of the Third Geneva Convention clearly states that if there is “any doubt” as to whether those captured are prisoners of war; they must be treated as such “until such time as their status has been determined by a competent tribunal.” The U.S. Army, in fact, has regulations setting up such a tribunal to make such determinations. The United States has, however, failed to employ that tribunal and has made a blanket ruling that the prisoners are not P.O.W.s.

Secretary of Defense Rumsfeld had acknowledged that treating the prisoners, as P.O.W.S. would limit the government’s legal options with regard to trying them. Under the Geneva Convention POWS must be tried by the same courts and under the same procedures, as U.S. soldiers would be. Assuming any of the Guantanamo detainees committed war crimes, they could be tried by court martials or civilian courts but not by military tribunals. Bringing the P.O.W.S. to trial in a military tribunal, therefore, violates the convention. Under Article 130 of the Convention it is a serious crime, a “grave breach,” to deprive “a prisoner of war of the rights of fair and regular trial” required by the convention and is the basis for a war crimes prosecution.

Says Ratner, who spent extensive time at Guantanamo Bay when he represented Haitian refugees being held there and has first hand experience of the conditions at the base, “The U.S. must adhere to the Geneva Conventions. Imagine if those were U.S. soldiers being held in cages in Guantanamo. We would insist that they receive the benefit of international legal protections. By creating new rules as we go along, the U.S. is jeopardizing the rights of U.S. soldiers who may one day be P.O.W.S.”

Added CCR Legal Director, William Goodman: “Picture this: Russian soldiers capture CIA-trained Afghani Mujahadeen circa 1980 and send them to Cuba where they are held in cages. It doesn’t take much imagination to conjure the State Department’s forceful response: Obey the Geneva Conventions and treat this mean as P.O.W.S.,” he said, “We need to do this rights.”