In legal limbo
US determination to avert the next 11 September has engendered a new era of nebulous international law, writes Nyier Abdou
Since the first prisoners detained during the war in Afghanistan were transferred to a remote US military base in south- eastern Cuba on 11 January 2002, the question of whether the US has something to hide has hung on the lips of human rights activists. The arrival of suspected Taliban and Al-Qa'eda fighters at Guantanamo Bay has spawned forceful public debate about the legal status of the detainees, while pictures of hooded, shackled prisoners and the caged conditions of the hastily constructed "Camp X-Ray" has fuelled an international outcry that the US is ignoring the Geneva Conventions.
One year on, prisoners have been quartered in a more permanent facility dubbed "Camp Delta", but the situation in Guantanamo is remarkably unchanged. None of the more than 650 prisoners from some 40 countries have been charged with an offence or seen a lawyer, and as yet, there is no timetable for this.
The 1949 Geneva Conventions, which lay out the so-called laws of war, are the bible of human rights groups scrutinising US policy in its military efforts following 11 September. The Third Geneva Convention, which classifies the conditions that must be met in order to identify combatants captured during hostilities as prisoners of war (PoWs), has been the focus of much contention with regard to the prisoners at Guantanamo. The US administration has held fast to its claim that the prisoners do not meet these criteria and has instead classified them as "illegal combatants" -- a controversial designation.
"It is shocking that a country that has prided itself as the home of due process is allowing a situation where hundreds of people continue to be held in what remains a legal limbo, with no indication as to how or when their cases will be resolved," Claudio Cordone, senior director for legal and international organisations at the London-based human- rights watchdog Amnesty International (AI), told Al-Ahram Weekly. Arguing that the Guantanamo case cannot be justified under either international human rights law or international humanitarian law, Cordone adds, "in fact, it is also incompatible with safeguards available in the US itself. But the US authorities are playing on the fiction -- unfortunately accepted so far by US courts -- that the Guantanamo Bay base is somehow outside the reach of US law."
Most human-rights advocacy groups maintain that the prisoners should be charged and tried, or released. But the detainees at Guantanamo, along with other suspects detained outside the US, such as those being held at the Bagram base in Afghanistan, remain in a legal black hole: without PoW status, they are not afforded the considerable rights outlined in the Third Geneva Convention, yet because they are not considered criminal suspects, they do not have the consular protection of their home nations. Meanwhile, recent US court rulings have indicated that US courts do not have authority over the detainees because they are not in the US, meaning that they are not protected by US law either.
The legal ambiguity is marked. A recent case of a US coalition that tried to act on the detainees' behalf was thrown out on the premise that the lawyers had "no pre-existing relationship" with the detainees. But because detainees are not allowed to see a lawyer, it is impossible to establish such a relationship. This means that detainees cannot retain a lawyer, and a lawyer cannot appoint himself of his own accord.
This kind of reductio ad absurdum is what Kenneth Hurwitz, senior associate for the International Justice Programme at the New York-based Lawyers Committee for Human Rights (LCHR), calls the "most troubling aspect of the [US] administration's policies". Hurwitz told the Weekly that the authoritative commentaries on the Geneva Conventions issued by the International Committee of the Red Cross (ICRC) make clear that "all individuals in armed conflict have some legal status." Generally, he notes, if they are not combatants authorised under the Third Geneva Convention, then they are to be treated as civilians. "The US is essentially arguing that the detainees have forfeited any lawful status, and therefore any legal rights because of the purported 'unlawfulness' of their participation in the hostilities."
"AI's position on this is that all those captured and held by the US during the conflict in Afghanistan must be presumed to be PoWs," says Curt Goering, deputy executive director at Amnesty International, USA. Should there be any dispute about a prisoner's status, he told the Weekly, a "competent tribunal" -- called for in the Third Geneva Convention -- should make the final call. But the US has refused to convene such a tribunal.
"The US government, like any other government, really does not have the right to hold any prisoners in this kind of legal limbo -- without charge, without trial, without access to the courts, without access to legal counsel or family members -- and at the same time unilaterally deny that they are PoWs," says Goering. "International law does not permit people to be detained at the unfettered discretion of the executive -- even in time of war or national emergency."
"The category of 'unlawful combatant' appears to have been created with the clear intention to deprive certain detainees of the most basic safeguards," suggests AI's Cordone. But Jamie Fellner, director of the US programme at the New York-based Human Rights Watch (HRW), notes that the laws of war do permit the detention of enemy combatants -- "whether they are entitled to PoW privileges or not" -- as long as the armed conflict continues. They can also be held without charge. "But, they may not be held indefinitely," he adds.
Because the "war on terror" is such an unconventional war, it is impossible to define the end of hostilities. Fellner says that recent statements by Bush administration officials implying that the US is entitled to hold detainees at Guantanamo without any charges or access to lawyers or their families for as long as the "war on terrorism" or the "war against Al-Qa'eda" continues rang warning bells at HRW. "Since there is no realistic prospect that such a war will end any time soon, the administration seems to be giving itself permission to hold individuals for years," he told the Weekly.
The detainees in Guantanamo are not all fighters captured during hostilities in Afghanistan. While it would seem that suspects apprehended outside Afghanistan would constitute a straightforward criminal case, Wolf von der Wense, a specialist on international law and a member of the board at the Frankfurt-based International Society for Human Rights (ISHR), says this is not so. "Whether a prisoner is a combatant of an armed conflict, thus making the Geneva Convention applicable, does not depend on where he is arrested," he told the Weekly. Von der Wense suggests that in the age of modern warfare, where remote-controlled weaponry is the norm, the status of a combatant is determined by his "concrete military involvement -- that is, as a commander". But he added that if there was no military connection to hostilities, "only a criminal prosecution is possible."
"The US seems to be taking the position that since it is at war with terrorists in general, and Al-Qa'eda in particular, then any member of Al-Qa'eda can be deemed an enemy combatant and treated as such, rather than put into the criminal justice system," says HRW's Fellner. "This is extremely troubling because of the lack of any independent scrutiny of such decisions for foreign nationals and, even in the US, the courts are extremely reluctant to subject the government's actions to anything more than the most minimal scrutiny."
The recent case of US citizen Yasser Hamdi, in which the fourth US Circuit Court of Appeals overturned a ruling that the suspect had the right to see the evidence against him, underscores this point. In the ruling, the judges stated that "The safeguards that all Americans have come to expect in criminal prosecutions do not translate neatly to the arena of armed conflict." Because the court concluded that in times of war, the government has supreme authority, human rights groups argue that the ruling effectively states that the government is no longer limited by the law. And because the end goal of the "war on terrorism" is so vague, it becomes equally unclear when this supreme authority will come to an end. AI's Goering identified the case as, "very much a step in the direction of the court in the service of the state, and a serious shortcoming in the checks and balances that are supposed to exist in the separation of powers structure". The case will now go to the Supreme Court.
In the larger picture, the treatment of prisoners at Guantanamo is hardly the worst the history of war has seen, nor is it even unusual. "Unfortunately, it is the sad experience that during almost all armed conflicts -- be they international or internal -- the regulations of the Geneva Convention are violated," remarked the ISHR's von der Wense. In this case, he concludes, the fact that the treatment is being meted out by the world's most powerful democratic nation, simply makes the example more pointed.
"The problem of reciprocity is always implicated when prisoners of war are not treated in accordance with humanitarian law," warns the LCHR's Hurwitz. Over the past year, he said, numerous states, from China to Syria, have "adopted the language of counter- terrorism to continue or expand repressive policies against dissent internally". In these circumstances, Hurwitz adds, the US "undermines what moral authority it has had in the past to complain about and criticise mistreatment by other governments -- whether of their own citizens, or of captured US and allied soldiers."
One senior researcher at HRW told the Weekly that he has already seen this logic in action. During a recent trip to Iraqi Kurdistan in September, his team found that many Islamists were being detained without charges. "Some of the detainees had been in detention for more than six months, without any kind of legal process," he said. When the matter was raised with Barham Saleh, the prime minister of the Patriotic Union of Kurdistan (PUK), it was stressed that the detentions were a violation of international standards. "Saleh looked very surprised, and then replied, 'But these detainees are in the same position as the detainees in Guantanamo Bay! We are partners in the fight against terrorism!' It was clear that the US actions in Guantanamo Bay had inspired these extrajudicial detention practices."
