SPEAKING
FREELY Taking no legal
prisoners By Sidney Gendin
The president of the United States says
detainees at Guantanamo Bay and other detention
centers are not entitled to the status "prisoners
of war" because they are terrorists and illegal
combatants.
According to John Yoo, the
architect of this thesis when he served as deputy
to former attorney general John Ashcroft, members
of the Taliban and al-Qaeda do not meet the four
conditions spelled out in Article 4 of the Geneva
Convention on the Treatment of Prisoners of War
that would confer upon them
the
privileged status of lawful combatants.
Perhaps he is right. We may concede, for
argument's sake, that he is probably right.
However, Yoo chose to ignore Article 5, which
reads as follows: "Should any doubt arise as to
whether persons, having committed a belligerent
act and having fallen into the hands of the enemy,
belong to any of the categories enumerated in
Article 4, such persons shall enjoy the protection
of the present Convention until such time as their
status has been determined by a competent
tribunal."
A bizarre catch has been
applied by the US administration: the detainees do
not deserve a tribunal since they are illegal
combatants, so no need arises to determine whether
a tribunal should hear their claims. Yet many of
the detainees have been held incommunicado and not
given the opportunity to question their status.
Some of them claim they are not terrorists at all.
Let us say they lie. Still, under Article 5, their
claim must be heard. Moreover, it is contrary to
the principles of international law for one party
to be judge and jury of the claim, especially when
that party is also the prison guard.
Article 78 of the above-cited Geneva
Convention says that prisoner complaints must be
transmitted to their representatives "even if they
are recognized as unfounded". Yoo chose to ignore
this section.
It is absurd to say the
Geneva rules apply only to legal combatants. They
are part of the international understanding of
humane treatment. They embody principles of
decency that have nothing to do with anyone's
status as this or that. The Geneva rules do not
create rights but codify them. Surely, the US
administration must understand that the rights of
prisoners do not derive from the conventions but
that the conventions list those rights because
principles of humane treatment antedate Geneva by
thousands of years.
Limiting the rights of
detainees for no better reason than that they are
not legal combatants is arbitrary, capricious and
plain immoral. At the very conclusion of the
Geneva Convention we find, "The conditions shall
be interpreted and applied in as broad a spirit as
possible." Current US attorney general, Alberto
Gonzales, and his predecessor, John Ashcroft,
chose the narrowest possible interpretation of
convention.
According to Gonzales, people
are transferred to the US military prison camp at
Guantanamo Bay, Cuba, because they have
"significant intelligence value" and are "a
continuing and significant threat to the United
States". Gonzales added that special camps are
needed for suspects who are "unresponsive to
interrogations". Presumably, they are more
responsive under the special conditions provided
by Guantanamo. Geneva or no Geneva, this is
grossly immoral. Gonzales made these remarks while
he was White House counsel.
We hear
verbiage about a new paradigm for the "war on
terror" that supersedes the requirements of
international law. Perhaps. But the signers to the
Geneva Conventions have not been asked to agree to
this new so-called paradigm. Based on such
nonsense, prisoners are not given their day in
court.
Let us grant that the Taliban are
fundamentally terrorist. Still it should be
obvious, especially to a lawyer who serves as the
highest law officer in the United States, that
mere membership in an organization that does not
respect international law does not mean that such
a person has failed to respect the law. It is an
elementary rule that guilt or innocence must be
established on an individual basis and not based
on whom one associates with. If anyone is
violating the Geneva Conventions, it is not the
detainees but the United States.
Sidney Gendin, PhD, is a
professor of philosophy of law.
(Copyright 2006 Sidney Gendin.)
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