More than 100 Afghan men out of the thousands captured by U.S.-backed Northern Alliance forces, have been rounded up by the U.S. Army and taken to the American Naval Base in Guantanamo Bay, Cuba. Deciding arbitrarily that the prisoners constitute “battlefield detainees” and “unlawful combatants”, the Bush administration has denied them their legal rights as ‘Prisoners of War’ (POWs). Under the Geneva Convention, POWs must be tried by the same courts and procedures as U.S. soldiers. They could be tried for war crimes through courts-martial or civilian courts – but not by the unilateral decisions of unaccountable U.S. military tribunals. And they must also be treated humanely, free from torture and any sort of physical or psychological abuse. Indeed, the Afghan POWs at Guantanamo haven’t seen lawyers. They haven’t even been charged with any particular crime. Nor has the Bush administration clarified exactly what it plans to do with them, nor how long it might hold them. As Guantanamo Bay is classified as being outside the U.S., the men are also ineligible for legal rights or representation under that country’s constitution.
The London Daily Mirror has criticised the policy scathingly:
“This is what is being done in the name of humanity, civilisation and the British people. These prisoners are trapped in open cages, manacled hand and foot, brutalised, tortured and humiliated. We are assured they are cruel, evil men, though not one has been charged, let alone convicted, of any offenceé The treatment of the prisoners in Cuba is no more than a sick attempt to appeal to the worst red-neck prejudices.”
The Guardian similarly reports that: “A set of officially sanctioned photographs show the prisoners, manacled hand and foot, kneeling before their guards, and wearing blacked-out goggles over their eyes and masks over their mouths and noses.” This is a form of extreme psychological torture that works by blocking the prisoners’ five senses for long periods of time, while forcing them to remain in a fixed physical position, chained to one place and unable to move. Having been hooded and shackled for transportation, these men are still being held, chained, in exposed metal cages, 6ft by 8ft, with cement floors and a basic form of chamber pot. They have had their facial hair shaved, contrary to religious beliefs, and are to wear orange jumpsuits at all times. In addition to this barbaric treatment, the men will also face interrogation from U.S. officials and military figures without the presence of lawyers or mediators.
In a statement on the matter, Amnesty International condemned the U.S. policy: “The U.S. is placing these people in a legal limbo. They deny that they are Prisoners of War (POWs), while at the same time failing to provide them with the most basic protections of any person deprived of their libertyé The U.S. has obligations under international law to ensure respect for the human rights of all persons in their custody – including the duty to treat them humanely and ensure that they have recourse to fair proceedings, regardless of the nature of the crimes they are suspected of having committed.” Amnesty, one of the world’s leading authorities in human rights and international law, considers the prisoners in Guantanamo to be POWs. But in the event of a dispute about their status, Amnesty points out that “the U.S. must allow a ‘competent tribunal’ to decide, as required by Article 5 of the Third Geneva Conventioné
“This is also the position held by the International Committee of the Red Cross (ICRC), the most authoratitive interpreter of the Geneva Conventions. It is not the prerogative of the Secretary of Defense or any other U.S. administration official to determine whether those held in Guantanamo are POWs. An independent U.S. court, following due process, is the appropriate organ to make this determination.”
According to Amnesty, POWs should be held in conditions that are “as favourable” as those of U.S. soldiers; they are not required to divulge information beyond their name, rank, serial number and date-of-birth; they cannot be tried merely for having taken up arms against enemy combatants in the context of the conflict. POWs, unless they are to be tried for war crimes or other criminal offences, must be repatriated at the end of “active hostilities”. Any detainee who is suspected of a crime, whether or not they are POWs, must be charged with a criminal offense and tried fairly or released. Indeed, Amnesty points out that “denying POWs or other people protected by the Geneva Conventions a fair trial is a war crime.”
The most authoritative interpreter of the Geneva Conventions, the Geneva-based International Committee of the Red Cross (ICRC), largely agrees. The ICRC has affirmed that: “those being held by American forces must be counted as prisoners of war under the Geneva Convention, and were, therefore, entitled to the full protection offered by it.” Calls by ICRC for the Bush administration “to spell out the exact status of its Afghan prisoners has resulted in a variety of often contradictory responses from different departments in the administration, according to diplomatic sources.” Indeed, some of the terms conveniently conjured up by the administration to describe the prisoners, “such as ‘battlefield detainees’, have no legal meaning, the ICRC says.”
Michael Byers, a U.S. expert in international law from Duke University, North Carolina, who is currently Visiting Fellow at Keble College, Oxford, has scrupulously dissected the Bush administration’s policies. “Anyone detained in the course of an armed conflict is presumed to be a PoW until a competent court or tribunal determines otherwise. The record shows that those who negotiated the convention were intent on making it impossible for the determination to be made by any single person.” Beyers notes further that: “the Pentagon might argue that the Taliban were not the government of Afghanistan and that their armed forces were not the armed forces of a party to the convention. The problem here is that the convention is widely regarded as an accurate statement of customary international law, unwritten rules binding on all. Even if the Taliban were not formally a party to the convention, both they and the U.S. would still have to comply.” The U.S. has also argued that Al-Qaeda members were not part of the Taliban’s regular armed forces. “Traditionally, irregulars could only benefit from PoW status if they wore identifiable insignia, which al-Qaida members seem not to have done. But the removal of the Taliban regime was justified on the basis that al-Qaida and the Taliban were inextricably linked, a justification that weakens the claim that the former are irregulars.” The fact also remains that who exactly these detainees are has not been clarified é whether they are Taliban, Al-Qaeda, or merely Afghan civilians, is simply not clear. “Moreover, the convention has to be interpreted in the context of modern international conflicts, which share many of the aspects of civil wars and tend not to involve professional soldiers on both sides…
“Since the convention is designed to protect persons, not states, the guiding principle has to be the furtherance of that protection. This principle is manifest in the presumption that every detainee is a PoW until a competent court or tribunal determines otherwise… The authorities at Guantanamo Bay have prohibited journalists from filming the arrival of the detainees on the basis that the convention stipulates PoWs ‘must at all times be protected against insults and public curiosity’. The hypocrisy undermines the position on PoW status: you can’t have your cake and eat it.
“Even if the detainees were not PoWs, they remain human beings with human rights. Hooding, even temporarily, constitutes a violation of the 1984 convention against torture and cruel, inhuman or degrading treatment. Apart from causing unnecessary mental anguish, it prevents a detainee from identifying anyone causing them harm. Forcefully shaving off their beards constitutes a violation of the right to human dignity under the 1966 international covenant on civil and political rights. Forcefully sedating even one detainee for non-medical reasons violates international law. Although strict security arrangements are important in dealing with potentially dangerous individuals, none of these measures are necessary to achieving that goal. If human rights are worth anything, they have to apply when governments are most tempted to violate them.”
Clearly, the United States é and the Western governments supporting its policies é have no moral high ground as far as human rights and international law are concerned. The latter are being blatantly manipulated to justify the brutalisation of America’s alleged enemies, and to manufacture public consent to the West’s flagrant violations of its own professed civilisational norms.
While the media has been focusing on the controversy surrounding the POWs caged in the U.S. base in Cuba, there has been little attention to the plight of Afghans who are still imprisoned in complexes established by America’s current proxy force, the Northern Alliance, under U.S. control.
“Afghan prisoners have been handed over to the United States by Northern Alliance warlords as well as the new interim government of Hamid Karzai. They are being held by the American military at bases in Kandahar, Bagram and Mazar-i-Sharif. The Independent has learnt, though, that the ICRC has not been able to get access to the prisoners in Bagram and Mazar-i-Sharif, and has discovered that about 360 being held in Kandahar are being kept in unsheltered stockades in the bitterly cold winter, without any privacy. These conditions would breach the Geneva Convention.”
And in a further display of racist, xenophobic hypocrisy, the U.S. saw fit to rescue the only American citizen captured by Northern Alliance forces from the same fate faced by the other POWs. John Walker Lindh, a white American revert to Islam who joined the Taliban, was flown back to the States to be tried in U.S. courts. Meanwhile, British, French and Australian POWs who have been detained along with everyone else é who may have been working on the ground in Afghanistan in aid operations to save the lives of Afghan civilians é are to remain in their current squalid conditions. And of course, while there may be doubt as to the fate of the Westerners, who may be repatriated under pressure from their home countries, the dark-skinned Afghans are doomed to indefinite detention and American-style “justice”. The double standards are plain for all to see.