FacebookTwitterRedditEmail

Afghan Prisoners and the Geneva Convention

The legal position of the prisoners taken in Afghanistan by United States’ troops is at the heart of a debate that has been confused by US statements and by a degree of international compliance in the name of the fight against terrorism.

According to the US authorities, the detainees transferred to the military base at Guantanamo Bay on Cuba are “unlawful combatants, who have no rights under the Geneva Convention”. But the Geneva Convention of 27 July 1929 relative to the treatment of prisoners of war, as amended in 1949, undoubtedly does apply to the Guantanamo detainees.

The Convention, ratified by the US, applies “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.” The term “war” has been explicitly replaced by the phrase “armed conflict” and this more general expression clearly applies to the US action in Afghanistan.

According to the preparatory work for the Geneva Convention, any dispute between states involving the use of armed forces is an armed conflict within the meaning of the convention. The US has undoubtedly engaged in armed action against the de facto authorities in charge in Afghanistan.

The convention applies irrespective of the duration of the conflict, the extent to which it results in bloodshed, and the size and standing of the forces involved. It covers “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” who are captured by one of the belligerents. This broad form of words was chosen to avoid uncertainties arising from the diverse nature of combatants. The Taliban and volunteers in Afghanistan clearly fall into the category of prisoners of war.

The label of “terrorist” attached by Washington to some detainees, notably members of al-Qaida, does not apply and the term “unlawful combatant” is unknown in international law. The principle is that anyone captured bearing arms is presumed to be a prisoner of war in the absence of evidence to the contrary. Only a competent tribunal can determine the status of the accused (1).

The transfer of prisoners to Guantanamo Bay compounds the legal confusion over the status of the detainees. According to the Geneva Convention, “prisoners of war must at all times be humanely treated” and “likewise … must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity” (Article 13).

Conditions of transfer are subject to the same rules: “The transfer of prisoners of war shall always be effected humanely and in conditions not less favourable than those under which the forces of the Detaining Power are transferred” (Article 46).

It must be said that the treatment of the detainees does not meet those requirements. The refusal to apply the convention inevitably means that the prisoners have no rights and this in turn gives the US authorities carte blanche to interrogate them in whatever way they wish. Prisoners of war are only required to state their name, rank and number, and they must be released and repatriated as soon as hostilities cease.

The place of detention was chosen not only because it was close to US territory but also, apparently, because the base in question is not on American soil. According to Washington, the US constitution does not apply there. Also, the decision to opt for court martial allows them to dispense with the rights of defence guaranteed under the American constitution.

Under the Geneva Convention, prisoners are entitled to a fair and regular trial and to means of defence, and they have the right of appeal (2). But the military court envisaged by the US administration does not meet these conditions. In a move that suggests confusion and embarrassment, the US State Department has stated that the accused may engage civil as well as military defence counsel, that the hearings may be held in public if national security is not at issue, that a death sentence can be handed down only by unanimous decision and, lastly, that an appeals board may be set up.

Amang all these uncertainties, one thing is clear: the US is in breach of international law and its obligations under the Geneva Convention.

Olivier Audeoud is a lecturer in law at the University of Paris. This essay originally appeared in Le Monde Diplomatique. Translated by Barbara Wilson

(1) Ironically, the US could have relied on the additional protocol of 1977, under which “mercenaries” are not entitled to prisoner of war status, but it has never ratified it. According to the definition given in the protocol, a mercenary is “motivated essentially by the desire for private gain” but that does not appear to apply in this case. The status of mercenary would nevertheless entitle the detainees to the rights of ordinary defendants.

(2) States whose nationals are held at Guantanamo are entitled to give them diplomatic protection and to require the US to comply with the rules of common law. Depending on the nature of the charges, which are not yet clear, the states in question may apply for extradition so that the detainees can be tried in their own countries.

 

 

 

More articles by:
bernie-the-sandernistas-cover-344x550
August 21, 2019
Craig Collins
Endangered Species Act: A Failure Worth Fighting For?
Colin Todhunter
Offering Choice But Delivering Tyranny: the Corporate Capture of Agriculture
Michael Welton
That Couldn’t Be True: Restorying and Reconciliation
John Feffer
‘Slowbalization’: Is the Slowing Global Economy a Boon or Bane?
Johnny Hazard
In Protest Against Police Raping Spree, Women Burn Their Station in Mexico City.
Tom Engelhardt
2084: Orwell Revisited in the Age of Trump
Binoy Kampmark
Condescension and Climate Change: Australia and the Failure of the Pacific Islands Forum
Kenn Orphan – Phil Rockstroh
The Dead Letter Office of Capitalist Imperium: a Poverty of Mundus Imaginalis 
George Wuerthner
The Forest Service Puts Ranchers Ahead of Grizzlies (and the Public Interest)
Stephen Martin
Geopolitics of Arse and Elbow, with Apologies to Schopenhauer.
Gary Lindorff
The Smiling Turtle
August 20, 2019
James Bovard
America’s Forgotten Bullshit Bombing of Serbia
Peter Bolton
Biden’s Complicity in Obama’s Toxic Legacy
James Phillips
Calm and Conflict: a Dispatch From Nicaragua
Karl Grossman
Einstein’s Atomic Regrets
Colter Louwerse
Kushner’s Threat to Palestine: An Interview with Norman Finkelstein
Nyla Ali Khan
Jammu and Kashmir: the Legitimacy of Article 370
Dean Baker
The Mythology of the Stock Market
Daniel Warner
Is Hong Kong Important? For Whom?
Frederick B. Mills
Monroeism is the Other Side of Jim Crow, the Side Facing South
Binoy Kampmark
God, Guns and Video Games
John Kendall Hawkins
Toni Morrison: Beloved or Belovéd?
Martin Billheimer
A Clerk’s Guide to the Unspectacular, 1914
Elliot Sperber
On the 10-Year Treasury Bonds 
August 19, 2019
John Davis
The Isle of White: a Tale of the Have-Lots Versus the Have-Nots
John O'Kane
Supreme Nihilism: the El Paso Shooter’s Manifesto
Robert Fisk
If Chinese Tanks Take Hong Kong, Who’ll be Surprised?
Ipek S. Burnett
White Terror: Toni Morrison on the Construct of Racism
Arshad Khan
India’s Mangled Economy
Howard Lisnoff
The Proud Boys Take Over the Streets of Portland, Oregon
Steven Krichbaum
Put an End to the Endless War Inflicted Upon Our National Forests
Cal Winslow
A Brief History of Harlan County, USA
Jim Goodman
Ag Secretary Sonny Perdue is Just Part of a Loathsome Administration
Brian Horejsi
Bears’ Lives Undervalued
Thomas Knapp
Lung Disease Outbreak: First Casualties of the War on Vaping?
Susie Day
Dear Guys Who Got Arrested for Throwing Water on NYPD Cops
Weekend Edition
August 16, 2019
Friday - Sunday
Paul Street
Uncle Sam was Born Lethal
Jennifer Matsui
La Danse Mossad: Robert Maxwell and Jeffrey Epstein
Rob Urie
Neoliberalism and Environmental Calamity
Stuart A. Newman
The Biotech-Industrial Complex Gets Ready to Define What is Human
Nick Alexandrov
Prevention Through Deterrence: The Strategy Shared by the El Paso Shooter and the U.S. Border Patrol
Jeffrey St. Clair
The First Dambuster: a Coyote Tale
Eric Draitser
“Bernie is Trump” (and other Corporate Media Bullsh*t)
Nick Pemberton
Is White Supremacism a Mental Illness?
Jim Kavanagh
Dead Man’s Hand: The Impeachment Gambit
FacebookTwitterRedditEmail