“The Secretary seems unaware of the requirements of international
humanitarian law,” said Jamie Fellner, director of Human Rights Watch´s
U.S. Program. “As a party to the Geneva Conventions, the United States
is required to treat every detained combatant humanely, including
unlawful combatants. The United States may not pick and choose among
them to decide who is entitled to decent treatment.”
News reports indicate that Taliban and al-Qaeda detainees will be
confined at Guantanamo Bay in small cages with chain-link sides,
concrete floors and metal roofs. The cages will offer scant shelter
from wind and rain. Details about sanitary and hygiene facilities are
not available.
This is not the first time detainees have been held at Guantanamo Bay.
In 1994, the U.S. government responded to refugee flows from Haiti and
then Cuba by creating a temporary holding facility at the base. While
conditions there were stark and hardly hospitable, the detainees were
held in permanent hard-walled shelters.
“The proposed cages are a scandal,” said Fellner. “The United States
should not be transporting detainees to Cuba until it can provide decent
shelter.”
The United States is a party to the Geneva Conventions, the laws
governing the treatment of persons captured during armed conflict.
Every captured fighter is entitled to humane treatment, understood at a
minimum to include basic shelter, clothing, food and medical attention.
In addition, no detainee – even if suspected of war crimes such as the
murder of civilians – may be subjected to torture, corporal punishment,
or humiliating or degrading treatment. If captured fighters are tried
for crimes, the trials must satisfy certain basic fair trial guarantees.
Prisoners of war (POWs) are entitled to further protections,
commensurate with respect for their military status as soldiers.
Indeed, the Geneva Conventions provide that prisoners of war must be
quartered in conditions that meet the same general standards as the
quarters available to the captor´s forces, e.g. the U.S. armed forces.
In addition, POW´s prosecuted for war crimes must be tried by the same
court under the same rules as the detaining country´s armed forces. In
the current conflict, an Afghan POW could not be tried by the proposed
military commissions, although they could be tried by an American
court-martial.
Under the Geneva Conventions, captured fighters are considered prisoners
of war (POWs) if they are members of an adversary state´s armed forces
or are part of an identifiable militia group that abides by the laws of
war. Al-Qaeda members, who neither wear identifying insignia nor abide
by the laws of war, probably would not quality. Taliban soldiers, as
the armed forces of Afghanistan, may well be entitled to POW status. If
there is doubt about a captured fighter's status as a POW, the Geneva
Conventions require that he be treated as such until a competent
tribunal determines otherwise.
