- The Washington Times - Thursday, January 17, 2002

Human rights groups have complained strenuously, but some international legal experts say the Bush administration is on solid ground in denying prisoner-of-war status to members of the al Qaeda terrorist network captured in the U.S.-led campaign in Afghanistan.
Much more problematic, legal scholars say, is the apparent decision to deny POW status to captured soldiers of the ousted Taliban regime, who are entitled to a higher level of protection under international agreements despite the fact that the United States and most other governments never recognized the Taliban government.
The issue has come to the fore as the first 50 prisoners from the Afghan campaign arrived over the past week at a detention center at the Guantanamo naval base in Cuba. Another 30 captured fighters arrived yesterday, Joint Chiefs of Staff Chairman Gen. Richard B. Myers told reporters yesterday.
Said Robert Kogod Goldman, a law professor at American University who has worked with human rights groups in the past: "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war.
"When you get to the Taliban detainees, it's a different kettle of fish," he said.
Under a series of agreements known as the Geneva Conventions, captured soldiers in international conflicts including members of allied militia or volunteer groups must be given a defined series of rights and protections for prisoners of war by the detaining power.
Operatives of a stateless or international terrorist organization such as al Qaeda, according to the U.S. government are entitled to a much lower standard of protection.
A POW, for example, can't be tried for murder for shooting an enemy officer in the course of battle. An "unprivileged combatant" may face criminal prosecution for such acts of war.
The close association of al Qaeda with the Taliban complicates the picture, but these scholars say al Qaeda's global reach and its history of moving from country to country make it hard to argue that the organization's fighters deserve POW status.
Marc Cogen, a professor of international law at Ghent University in Belgium argued at a recent European conference on the question that "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict."
Al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities," Mr. Cogen said.
Meanwhile, Britain has jumped into the debate.
The Financial Times said today that London wants British al Qaeda prisoners held in Cuba to be handed over for trial in Britain.
Such a move would avoid a confrontation over U.S. use of the death penalty.
The newspaper reported the British government is also concerned that Washington may be alienating public opinion through its tough approach to the prisoners held at Guantanamo Bay.
In public, however, Prime Minister Tony Blair has supported the United States, insisting yesterday that the detainees were being treated humanely.
A Pentagon spokeswoman yesterday said the U.S. government would demand that any U.S. military personnel captured by hostile forces in Afghanistan be given full POW protections.
"That is because our forces meet all the criteria laid out by international conventions," the spokeswoman said. "They are part of a recognized military participating in the anti-terrorism war and abiding by the rules of war set by the Geneva Conventions."
Human rights groups, however, have intensified criticism of the U.S. decision not to give POW status to its war captives.
They have slammed Defense Secretary Donald H. Rumsfeld's description of the captives as "battlefield detainees," saying there is no such category under international law.
In an interview in the Afghan capital of Kabul, International Committee of the Red Cross official Michael Kleiner said the Taliban regime's effective control of Afghanistan, its military structure and functioning government made it the de facto state and meant its troops deserved international legal protections in the war.
"Everyone captured in this context should be presumed a POW," he said. "This is according to the law."
The Pentagon has not given a public breakdown of how many of the detainees were al Qaeda and how many were with the Taliban. Mr. Kleiner said the probable overlap of the two groups was one more reason to give all of them POW protections until a final determination could be made.
American University's Mr. Goldman noted that the U.S. government had set a precedent here, treating captured former Panamanian President Manuel Noriega as a prisoner of war despite not having recognized the legitimacy of his regime.
Mary Robinson, the U.N. high commissioner for human rights, told reporters in Geneva yesterday that she believed all those held at Guantanamo were prisoners of war.
"The situation is complex but the overwhelming legal view is that they were combatants in an international armed conflict," Mrs. Robinson said. "Their status is defined and protected by the Geneva Conventions of 1949. They are prisoners of war."
Rights groups also note that the Geneva Conventions specify that in cases of doubt, a prisoner taken in a military conflict should be presumed to be a formal POW "until such time as their status has been determined by a competent tribunal."
Amnesty International, in a statement released Wednesday, said, "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."
Mr. Kleiner warned the United States risked setting a dangerous precedent for future wars.
"We may expect in other conflict situations [that] smaller players may refer to what happened here and say, 'The biggest players in this world have not complied with your Geneva Conventions text, why should we?' That is extremely worrying."
Richard S. Ehrlich reported from Kabul, Afghanistan.

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