Thursday, April 4

When is a prisoner of war not a POW? When he isn't a Gentleman.

And here is another. This one was written in mid-January, about a week before the Bush administration announced its plan for dealing with the Camp X-Ray detainees. Modesty prevents me from going into much detail regarding the similarities between the administration's plan and the suggestions contained in this piece.

The current international flap over the treatment of the four hundred or so detained Afghan and other foreign nationals at the U.S. naval base at Guantanamo Bay, Cuba has properly been brushed aside by the Defense Department, which has more important matters to worry about than the tediously predictable bleatings of international bodies positioned well behind the frontlines of the war on terrorism. This does not mean, however, that the United States’ actions are beyond reproach; there are several simple steps which could be taken to prevent further justified criticism.

The most audible criticism has come from Mary Robinson, the United Nations High Commissioner for Human Rights, and, most recently, backbenchers in Tony Blair’s Labour government, hitherto our unwavering military ally. Notwithstanding the fact that these criticisms represent the opportunistic grumblings of, respectively, a “Human Rights” body that recently displaced the United States in favor of the Sudan and Sierra Leone (and which already included Syria, Cuba and China) and a shrinking cadre of unrepentant Marxists, the United States should heed their complaints and provide a clear response to them.

The first step in such a response should be to distinguish the legitimate complaints from the knee-jerk anti-American fluff obscuring them. Because the debate hinges on whether or not the detainees are Prisoners of War under the Geneva Convention Relative to the Treatment of Prisoners of War of 1949, the United States should release a carefully reasoned statement supporting its position. This creates an immediate problem because at least some of them arguably are. The first priority of this administration should be, therefore, to separate the detainees into two groups: those who might be Prisoners of War under the Geneva Convention and those who clearly are not.

Under the Geneva Convention (and almost all other laws of war) captured al Qaeda terrorists are not Prisoners of War. Despite shrill assertions to the contrary, they simply don’t meet the minimum qualifications: they are not members of an identifiable army or militia that obeys the laws of war and, generally, were not in the habit of wearing identifiable uniforms or insignia or of bearing arms openly. No amount of unsupported international disagreement can create a legitimate controversy on this point and the United States should stand firm on this point.

As for those detainees who were not affiliated with al Qaeda in any way and who were members of the Taliban government’s regular army, their status is at least open to question. They resemble the sort of regular armed forces contemplated by the Geneva Convention but they may not qualify for succor as a result of their government's questionable commitment to the laws of war. However, under Article 5 of the Geneva Convention, such prisoners should be afforded the protections of the treaty “until such time as their status has been determined by a competent tribunal.” In 1997, the Pentagon issued regulations governing the conduct of such tribunals, which call for a three-member panel of military officers to hear each detainee's testimony. With guidelines in place, it should not take more than a week or two to appoint and dispatch a sufficient number of such tribunals to sort the detainees into legitimate Prisoners of War and illegal combatants who need not be afforded the protection of the Geneva Convention and who should be treated as the criminals they are.

Having sorted the merely unfortunate wheat from the truly despicable chaff, the United States will still find it difficult to apply the anachronistic provisions of the Geneva Convention to the remaining prisoners of war. In order to maintain the support of the international community and still achieve American military objectives, the United States’ should make a good faith effort to abide by the spirit of the treaty in open collaboration with the Red Cross (the monitoring organization suggested in the Geneva Convention), while keeping its allies and all other concerned states and organizations regularly informed of the status and treatment of the detainees. Most crucial in this policy of openness and candor will be an explanation of when and why the United States is deviating from terms of the Geneva Convention.

Such deviations will be necessary because, like so many of our assumptions and expectations, the rules and norms of armed conflict are radically different today than they were in 1949, or even before September 11th. Just as the war on terrorism is a new kind of war, so are these prisoners a new breed of prisoners of war. Deviations from the Geneva Convention will be necessary to ensure the protection of camp guards (not to mention the citizens of all allied nations) should an escape or rescue project succeed. Deviations will also be necessary because it would be foolish to repatriate any Taliban soldiers to a country where pockets of resistance still exist and their leaders may still be active.

Most significantly, these deviations are appropriate because the Geneva Convention, first ratified in 1929 and reaffirmed in the wake of World War II, was drafted with the expectation that Prisoners of War would behave like, and be worthy of the treatment due, professional soldiers in the armies of the signatory nations. It is only in the light of this assumption that many of the treaty's provisions make sense, provisions such as: the right of prisoners to receive by post parcels of "scientific equipment, examination papers, musical instruments, sports outfits and materials allowing prisoners of war to pursue their studies or their cultural activities (Art. 72;); fair compensation to prisoners of war permanently detailed to duties in connection with the administration, installation or maintenance of camps (Art. 62); the right to a month's pay advance of not less than the salary for an American officer of equivalent rank (and increasing generously with increasing rank) (Art. 60); the right to eight paid holiday days each year if the prisoner is employed (at a fair rate of pay (naturally) and (of course) officers cannot be compelled to perform physical labor and NCO's may only be employed in a supervisory capacity) (Art. 49 and 62); the right to be quartered under conditions as favorable as those for American soldiers billeted in the same area (Art. 25); the right to participate in food preparation (Art. 26).

The ludicrousness of applying an unmodified Geneva Convention to Camp X-Ray can be illustrated by imagining how the U.S. military would go about employing fanatical and possibly suicidal Taliban soldiers in the instillation and maintenance of the camps or considering what Taliban POWs would do with their hand delivered “scientific equipment.” The images are laughable because these detainees are not the gentleman and gentlewoman soldiers whom the treaty's signatories would have recognized as prisoners of war. In short, the treaty was drafted by civilized countries for the treatment of civilized prisoners and it would be impossible to apply the letter of the treaty to the confinement of zealots with a death wish without endangering the camp guards and the prisoners themselves.

America's right to defend itself and secure its citizens' safety must trump any provision of the Geneva Convention that could jeopardize those interests, but such a priority does not give the United States license to disregard the treaty altogether. Instead, the treaty should be complied with to the fullest extent possible but openly deviated from where absolutely necessary. Only in this way can the incompatible requirements of maintaining control over hostile and dangerous detainees be balanced with the spirit of the Geneva Convention, which insists on their humane treatment. The burden, of course, rests with the United States government to explain every deviation from the terms of the treaty, but it should do so with the confidence that its allies will understand the impossibility of its position and concur with its actions.