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Friday, 8 February, 2002, 05:10 GMT
Legal implications unclear
Prisoners shackled and kneeling
American law does not extend to Guantanamo Bay
Jon Leyne

President Bush's decision on the legal rights of the prisoners at Guantanamo Bay in Cuba will have the lawyers scratching their heads for many years to come.

The president has ruled that the Geneva Conventions do apply, after all, to the Taleban prisoners, but not to members of al-Qaeda.

However, he has maintained that members of neither group qualify as prisoners-of-war.

White House spokesman Ari Fleischer insisted that the treatment of all the prisoners would not change as a result. What is less clear is the legal logic, and the legal implications.


In the case of al-Qaeda fighters, the lawyers have decided that they do not qualify, because al-Qaeda itself is not a party to the Geneva Conventions. That's simple enough, even if some human rights activists disagree about the train of thought.

As for the Taleban, the White House says they are covered by the Geneva Conventions, because the state of Afghanistan is a party to the conventions, even though the United States never recognised the Taleban as the legitimate regime.

Mr Fleischer cited two reasons why the Taleban detainees were nevertheless not eligible to be treated as prisoners-of-war:

  • Failure to wear uniforms that distinguish them from the civilian population
  • Failure to conduct their operations in accordance with the laws and customs of war.

But in the Geneva Conventions those requirements only apply to "members of militias and members of other volunteer corps".

They say prisoner-of-war status should be given to "members of regular armed forces who profess allegiance to a government or authority not recognised by the detaining power" - a description which could well apply to the Taleban forces.

Another part of the conventions states that where any doubt arises about the status of prisoners, they should be treated as prisoners-of-war until the issue is decided by a "competent tribunal".

There is provision for such tribunals in American military law. But despite the White House's announcement on the Geneva Conventions, there is no word that the Americans plan to set up any such tribunals.

Military commissions

All of that means that the Taleban prisoners should at least have a case to argue that they are being denied their legal rights.

Their problem is that it is not clear if or when they will ever appear before a court of law to argue the case.

American law does not extend to Guantanamo Bay, so it is no use applying to the American courts to challenge the ruling.

If they are tried, it is likely to be before one of the military commissions being proposed by President Bush.

Those commissions would not have the safeguards which the Geneva Conventions specify for prisoners-of-war. The Taleban detainees would find themselves arguing their case before a tribunal of military officers appointed by the US Government.

Double-edged weapon?

So this ruling appears to be little more than a legal move which will not have any practical impact.

One reason for the change of heart by President Bush may be the recent international pressure.

Equally - if not more - important were concerns expressed by the US military about their possible fate, if they should fall into enemy hands. After all, American special forces also often don't wear uniforms, or carry their arms openly.

The narrow interpretation of the Geneva Conventions being made by the Bush administration could be a double-edged weapon.

See also:

28 Jan 02 | Americas
Who is a prisoner of war?
17 Jan 02 | Americas
Life in a Guantanamo cell
28 Dec 01 | Americas
Destination Guantanamo Bay
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