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Secretary of State Colin Powell has added his voice to the chorus: It is in the best interests of the United States, he says, to initially treat combatants captured in Afghanistan as prisoners of war. This is the view of other realists in the Pentagon and administration, some US allies, and the vast majority of international law and human rights groups.
But the question goes far beyond the treatment of individual detainees. Rather, it sets the stage for how, in a violent world, the rules of war are established for everyone. For almost 100 years, the Geneva and Hague Conventions have provided a framework that protects combatants. The United States has always argued for a broad reading of these conventions regarding POWs, both to set an example and to ensure fair treatment of its own soldiers when captured.
Regarding the detainees at the American naval base in Guantanamo, Cuba, the US is currently violating its own Army regulations as well as the Geneva Convention, namely in the way the prisoners are housed (in open-air cages with roofs).
US Army rules reflect the convention and require that all persons taken into custody by US forces during a conflict be treated as prisoners of war, “until some other status is determined by a competent tribunal.” This means that all combatants – Taliban, Al Qaeda, and others – captured on the battlefield in Afghanistan must be treated at first as POWs until their status can be decided by a competent tribunal.
These fighters won’t necessarily receive POW status. Some people have argued that Al Qaeda fighters may not qualify as POWs if they did not wear distinctive marks identifying them or obey the laws of war; others have argued similarly about the Taliban. But the facts are not established, which is why US Army regulations require a “competent tribunal” to judge each individual case fairly.
We must also remember that POW status hardly protects captured fighters from prosecution: POWs can be charged with war crimes.
They can also be interrogated, cajoled, and questioned – they just cannot be coerced or tortured. The Geneva Convention does allow POWs to limit their responses to name, rank, and serial number. Yet over the years many POWs, questioned under the framework of the convention, have provided much more information.
Finally, treating prisoners initially as POWs does not mean the United States abandons security concerns. Under the Geneva Convention, prisoners of war may not be abused, starved, left out in the elements, or with their wounds untreated. But they are subject to measures that keep them securely captive, under lock and key.
The reasons for complying with Army regulations and the Geneva Convention are clear: The US has an immediate and long-term interest in upholding international conventions that establish universal rules of war and regulate the treatment of POWS.
Even as Washington politicians bluster, our own soldiers live with the threat of capture. They, like all other combatants, deserve the protection of the Geneva Convention.
The United States also has an interest in not alienating its battlefield allies by high-handed, unilateral decisionmaking and selective compliance with the law. If the rules of war can be abrogated at any moment on the whim of the secretary of Defense – even over the objections of the secretary of State – our ability to form solid and lasting alliances will be gravely undercut.
Michael Ratner is an international human rights lawyer and vice-president of the Center for Constitutional Rights. He has brought numerous suits against the illegal use of military force by the United States Government and specializes in opposing government spying. Mr. Ratner teaches International Human Rights Litigation at Columbia Law School, and is the author of The Pinochet Papers, International Human Rights Litigation in US Courts, and Che Guevara and the FBI.