The treatment by the United States of detainees at Guantanamo Bay in the past weeks has generated a storm of international controversy. The Bush administration have decreed that the persons captured in Afghanistan are not prisoners of war in the legal sense but rather unlawful combatants, and are therefore not subject to the terms of the Geneva Convention relative to the Treatment of Prisoners of War (hereafter “the Convention”).
I am not an expert in military law, but this position seems untenable. The U.S. Executive branch have been perpetrating what I consider to be an act of misdirection meant to distract attention. The official word has been that the prisoners do not qualify due to their not being organized into recognized military units, not wearing uniforms, and not bearing arms openly. This belies the fact that a detainee must be classified as a prisoner of war if he falls into any of six categories, only one of which (category 2) contains the provisions cited by the Bush administration. The beginning of Article 4 is excerpted below.
A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
1. 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.
2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:
(a) That of being commanded by a person responsible for his subordinates;
(b) That of having a fixed distinctive sign recognizable at a distance;
(c) That of carrying arms openly;
(d) That of conducting their operations in accordance with the laws and customs of war.
3. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.
4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.
5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.
6. Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.
By the description of the Bush administration, some detainees are of Taliban origin, some of al Qaeda origin. Despite the obfuscatory efforts of the Bush administration to equate the two groups and use their names interchangeably, these are separate groups of people. First consider the Taliban detainees: these individuals are unquestionably prisoners of war under the terms of 4(A)(1), “Members of the armed forces of a Party to the conflict.” This is indisputable. It does not matter if the U.S. did not recognize the Taliban as the legitimate government of Afghanistan; the status of such combatants is expressly protected in 4(A)(3). The Taliban were the de facto government, as openly acknowledged by the administration, and Afghanistan is a party to the Convention.
It may be true that al Qaeda members are not covered by the Convention. To decide this, a “a competent tribunal” should operate on a case-by-case basis, as mandated in Article 5, but the Bush administration have denied the captives this entitlement as well. I had originally intended a more thorough exploration of these topics, but a press release that I found, issued yesterday by the organization Human Rights Watch, does a much better job of this than I could have. I strongly entreat you to read this and reach your own conclusions
I admit with embarassment that before researching this I had no conception of the extent of the Convention. If asked, I would have said that the convention allows a POW to state nothing but his name, rank and serial number to inquisitors, prevents the torture of prisoners, and mandates their medical care. This summation does not afford even a glimpse into the generosity of the treaty. (In my sampling below, the italicized numbers refer to the source Articles of the Convention.)
Under the Convention, detainees are allowed to keep all effects and articles in their possession at the time of capture, excepting arms, military equipment and documents, and horses; this specifically includes clothing, items of sentimental value, and items of personal protection such as gas masks and helmets (18). The prisoners must be housed in dormitories at least as desirable as those in which their captors reside, with allowances for the customs of the prisoners (25); specifically they may not be housed in penitentiaries by default (22). The prisoners’ habitual diet must be taken into account when providing food rations (26). They shall be able to freely exercise their religious duties (34), and if a minister of a prisoner’s faith is not in captivity with him, the captors must provide an appropriate minister at the request of the prisoner (37). All prisoners must be given a monetary allowance (60; more on this later) and this money, along with money the prisoners had when captured (18, 58), may be used to purchase foodstuffs and personal articles at reasonable prices from a store set up within the camp (28).
The captors must assist prisoners in the preparation of legal wills satisfying the legal requirements of their own countries in case the prisoner dies in captivity; if the captive does indeed die his will shall be forwarded to his home country, he shall be buried honorably (or cremated, if he so desires), the grave must be clearly marked and properly maintained, and its location centrally recorded (120). A prisoner of war may not be tried in a civilian court of the detaining power unless a soldier of the captor power is also permitted to be tried in a civilian court, and any trial must guarantee independence and impartiality (84). The prisoner on trial must have access to adequate counsel (99).
A prisoner shall be allowed to send and receive letters and postcards (71). The prisoner shall also be able to receive packages in the mail containing a wide range of items. A prisoner could, for instance, receive a package containing granola bars, a six-pack of Coca Cola, a coat, extra socks, Band Aids, a Koran, a crucifix, a dictionary and thesaurus, a hobby microscope, a guitar, a rugby uniform, and a GED test form (72). These may be sent to a prisoner for free, without charge for custom duties or even postage (74).
I had no idea of the scope of this convention. I love it. This is the most civilized law I have ever read; it paints a picture of a camp much like the camp portrayed in the 1997 film The Brylcreem Boys. It could be argued that these rights and resources exceed those afforded to civilian prisoners of the United States, and even exceed those afforded to the destitute and homeless. This should not suggest that we need to reduce the living standards of prisoners of war, but rather that we should not allow our own citizens to live in squalor.
I wrote that I would return to the issue of the allowances. These are specified in exact values of Swiss francs. For example, prisoners ranking below sergeant would receive the equivalent of eight francs per month in the local currency, majors, colonels, etc. would receive fifty francs, generals seventy-five francs. In 1950, one Swiss franc was equal to US$0.23. Adjusting for inflation, this is equivalent to US$1.64 in year 2000 dollars. As of this writing one Swiss franc is equal to US$0.58. This is a factor of three decrease in buying power. It think it would more desirable if this were calibrated against actual buying power in the host country (some function of, say, the prices of beef, automobiles, electricity, and books.)