GENEVA The 1942 Bataan Death March, in which thousands of captured American and Philippine soldiers died as the Japanese forced them to trek across the Philippines, was one of the horrors of World War II that shocked nations into saying “Never again.”
Over four months in 1949, diplomats crafted the modern Geneva Conventions a set of rules on the conduct of warfare, designed to protect civilians and wounded or captured fighters.
The four treaties still form the backbone of the world’s laws regulating warfare. But the capture of suspected al Qaeda fighters by U.S. forces in Afghanistan and their detention at a U.S. Navy base in Guantanamo Bay, Cuba, has put the rules to a new test.
Although the United States insists it is treating the captives humanely, it refuses to grant them formal “prisoner of war” status. The United States maintains that al Qaeda prisoners are part of a terrorist network and fall outside the protections provided for captured uniformed members of armed forces. Last Thursday, President Bush reversed his previous position and said that Taliban fighters are legally protected by the Geneva Conventions.
However, the International Committee of the Red Cross, mandated by the conventions to protect POWs and other victims of war, says all fighters captured during the campaign in Afghanistan are covered.
“We’ve had new types of conflicts as well as classical wars,” said Jean-Philippe Lavoyer, head of the ICRC’s legal division. “But the fundamental rules are the same.”
The ICRC, a neutral Swiss-run agency, insists the Guantanamo detainees be given POW status, at least until a court considers the issue.
“We consider them as prisoners of war until proven otherwise by a competent court,” ICRC spokesman Vincent Lusser said.
The United States calls the detainees “unlawful combatants” and says there is nothing for a court to consider.
“We are not going to call them prisoners of war,” President Bush said. “These are killers, these are terrorists, they know no countries.”
But, stung by criticism from European governments and human rights groups, he said he would further study the issue.
How to ensure that countries meet their Geneva Convention obligations has been a problem as long as the rules have existed. The ICRC was not allowed to visit U.S. soldiers captured in Vietnam, for instance, and some countries, including China, still refuse to let the group enter.
Yet the ICRC has managed to gain access elsewhere. It now can visit detainees in Algeria and Eritrea, and in 1993 visited U.S. Army helicopter pilot Michael Durant after his capture by the forces of Somalian warlord Mohammed Farrah Aidid.
Under the Geneva Conventions, POWs are entitled to be treated with dignity and should be housed in barracks like those for the troops holding them captive. Photographs of manacled Guantanamo detainees have upset human rights organizations.
Those groups also criticize the Bush government’s intention to try non-American detainees in special military tribunals empowered with the death penalty, insisting that they should be tried by normal civilian courts or by regular court-martial.
One concern for the United States is that, under the conventions, prisoners of war are only required to give “surname, first names and rank, date of birth, and army, regimental, personal or serial number” when questioned.
U.S. officials fear this might prevent them from interrogating the captives to learn about any planned terrorist attacks.
But Mr. Lavoyer said the rules do not prevent investigators from asking questions and prisoners from giving more information if they want to.
“It is possible to interrogate them and to prosecute them if they have committed violations of humanitarian law. They could also be prosecuted for things they did before, like conspiracy to attack American interests,” he said.
The Geneva Conventions do prevent the use of force or torture to obtain information. Some human-rights groups fear that is what the prisoners could face unless they are designated POWs.
“Keeping prisoners incommunicado, sensory deprivation, the use of unnecessary restraint and the humiliation of people through tactics such as shaving them, are all classic techniques employed to ‘break’ the spirit of individuals ahead of interrogation,” London-based Amnesty International said.
The ICRC, however, said it was happy with the access it had been given to the prison. The agency never comments publicly on conditions of detention but said it made recommendations to the U.S. government. The government said it already has implemented some of those recommendations.
Some former POWs from the United States cannot understand the outcry over conditions at Guantanamo Bay. They say the detainees are being treated much better than they were.
“In the entire 61/2 years I was a prisoner of war, I never saw the Red Cross,” said retired Marine Lt. Col. Orson Swindle, who was shot down over Vietnam in 1966.
But the ICRC says it is the duty of the United States to abide by the laws of war, even if its opponents do not.
“These are unilateral obligations. It’s not like commercial law where if one party breaks the contract then the other doesn’t have to deliver either,” Mr. Lavoyer said.