Washington Post
January 27, 2002

Most Experts Say Al Qaeda Members Aren't POWs but Taliban Fighters Might Be

By John Mintz

Most members of Osama bin Laden's al Qaeda movement detained at the Guantanamo Bay naval base probably do not deserve to be labeled prisoners of war under the Geneva Conventions and legal precedents, according to a number of experts in international law.

But a loose consensus has emerged among many legal specialists, as well as a number of critics and defenders of the U.S. military's treatment of the 158 detainees, that many of the captured Taliban fighters should be declared POWs after hearings on their cases a status that would grant them an array of protections under international law.

Human rights activists and some European officials have demanded in recent weeks that the U.S. government declare the al Qaeda and Taliban fighters detained in the makeshift prison in Cuba prisoners of war. The clamor escalated in recent days, prompting Defense Secretary Donald H. Rumsfeld to offer an impassioned defense of the U.S. policy, and its treatment of the prisoners, last week.

A number of experts say the United States appears to be on safe ground legally and strategically if it argues that the al Qaeda fighters it is holding are not POWs.

Michael Glennon, a fellow at the Woodrow Wilson International Center for Scholars, said members of al Qaeda likely will fail to meet a key requirement of the Geneva Conventions for POWs: that they "conduct their operations in accordance with the laws and customs of war."

"Al Qaeda's sworn purpose of killing American civilians places them at odds with the customs of war," and therefore appears to disqualify most of them from POW designation, he said.

On a related but narrower legal issue, the State Department wants the administration to declare formally that the prisoners are covered by the Geneva Conventions a question that has been left fuzzy so far, officials said. The Justice Department and the White House Counsel's Office say the detainees not only aren't POWs but shouldn't be covered by the conventions, the officials said.

State takes the position because it wants to insure that irregular U.S. military forces captured in battle are covered by the conventions and treated humanely, officials said. The officials denied a report in yesterday's Washington Times that Secretary of State Colin L. Powell wants the detainees declared POWs. State strongly opposes such a move, the officials said.

An administration official said the Times story was based on a draft memo and that Powell's position was misstated because of "a misunderstanding among the lawyers."

The status of irregular or guerrilla military forces, such as al Qaeda, is murkier under international law than the rights of soldiers fighting for a legitimate government. Essentially, four criteria must be met for captured irregulars to qualify as POWs.

In addition to requiring fighters to do battle "in accordance with the laws and customs of war," combatants must "be commanded by a person responsible for his subordinates," wear a uniform with "a fixed distinctive emblem recognizable at a distance," and "carry arms openly."

Neither al Qaeda nor Taliban fighters apparently ever wore uniforms, but this may not prove to be decisive, lawyers said. Although the Pentagon declared during the early months of the Vietnam War that the Viet Cong did not deserve POW status, in part because they usually wore indistinctive black garb, military officials later reversed themselves and granted captured Viet Cong soldiers POW standing.

Al Qaeda and Taliban fighters at times apparently carried concealed arms, such as during the prison uprising in Mazar-e Sharif, when captured combatants with grenades hidden in their clothes killed Northern Alliance soldiers and a CIA officer.

The Pentagon "seems to have a valid argument" in making its anticipated contention that al Qaeda members must not be deemed POWs, said Sean Murphy, an international law professor at George Washington University.

In 1949, when the Geneva Conventions governing POWs were drawn up, the world community agreed that groups such as the anti-Nazi French partisans in World War II and Greek communist guerrillas movements that in legal terms could be described as resembling al Qaeda did not qualify for POW classification.

In 1977, the U.S. government opposed a United Nations resolution that would have declared various captured guerrilla and insurgent forces to be POWs. The idea never caught on, and only a few dozen governments ratified the U.N. plan.

One sign of the general consensus is that even the advocacy group Human Rights Watch is expressing agreement.

Because al Qaeda members don't wear insignia or abide by the rules of war, "we think . . . a tribunal probably would decide al Qaeda members don't meet the POW requirements," said Tom Malinowski, a Human Rights Watch representative in Washington. "But the Taliban probably would be entitled to POW status. If you're fighting for the regular armed forces of a nation, you're entitled to POW status."

The stakes of the decision are considerable: POWs must be repatriated or charged at the end of a conflict (although it is unclear when the war against al Qaeda specifically or terrorism in general would be declared over). Non-POWs can be held for longer periods, though not indefinitely.

Under the Geneva Conventions of 1949, designation as a POW confers dozens of privileges on a captured soldier. He should have access to musical instruments and canteen privileges, for example; is required to give only his name, rank and serial number during interrogations; and must be held in housing comparable to barracks of the capturing army's soldiers. Prisoners of war are even paid salaries under the conventions: $5 a month for sergeants, $45 for generals.

The U.S. military has avoided calling the detainees POWs, designating them instead as "unlawful combatants." Yet U.S. officials say they are giving them "treatment consistent with" the Geneva Conventions.

Glennon said it is vital that in determining who is a POW, officials examine each captive's case instead of considering them in groups. If group membership were the test, then, for example, all German Air Corps captives in World War II could have been denied POW status because a few of their squadrons bombed civilian targets in England, Glennon said.

"That," he added, "can't be right."

London-based Amnesty International has not taken a formal stand on the POW question, but officials with the human rights group say they believe al Qaeda fighters qualify as POWs because they were at times intermingled with regular Taliban forces in Afghanistan.

"Until proven otherwise, we think even members of al Qaeda, if captured in combat with Taliban fighters, should qualify as POWs," said Alistair Hodgett, a Washington spokesman for the group. A number of other human rights activists have joined Amnesty International's position.

"Any Taliban or al Qaeda combatants captured by the U.S. clearly are prisoners of war," Makau Mutua, an international law professor at the University of Buffalo, said in a statement. "Prisoners of war are defined by the Geneva Conventions as any opposing combatants. They are identified as such if they fight within a structured command. . . . It is deceitful for the U.S. to seek to circumvent the law" by mislabeling them, he added.

Under the Geneva Conventions, soldiers reporting to military commanders connected to a government are ordinarily considered POWs. U.S. officials are considering denying the Taliban fighters POW status because it could be argued that the Taliban regime, recognized diplomatically by only three other nations, did not constitute a valid government.

Rumsfeld acknowledged the issue last week when he told reporters that "lawyers must sort through legal issues with respect to . . . whether or not the Taliban should be considered what the documents apparently refer to as a, quote, 'high contracting party,' or in plain English, I think, 'a government.'"

But legal experts said it is irrelevant whether other nations diplomatically recognize an opposing regime. During the Korean War, for instance, neither the United Nations nor the United States recognized the Beijing regime diplomatically, but they treated captured Chinese soldiers as POWs.

To comply with the Geneva Conventions, U.S. officials need to begin holding hearings soon into who is a POW, according to legal specialists on all sides of the debate.

Human rights advocates contend that the Bush administration should provisionally designate all the detainees as POWs before any hearings begin, but the administration has refused to do so.

Legal experts say U.S. military officials may be resisting because they don't want to elevate the detainees to POW status and risk compromising future arguments that they aren't POWs. A provisional designation also could create a legal precedent that terrorists are to be considered prisoners of war, they said.

Copyright 2002, Washington Post Company. All rights reserved.

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