In a point by point response to recent statements by the Bush administration regarding the Geneva Conventions, Human Rights Watch explained U.S. obligations to use competent tribunals where the prisoner of war status of detained belligerents was in doubt; that the Geneva Conventions do not prohibit the questioning of detainees, including POWs; and that POWs convicted of crimes can be detained even after the armed conflict ends.
"The U.S. government cannot choose to wage war in Afghanistan with guns, bombs and soldiers and then assert the laws of war do not apply," said Kenneth Roth, Executive Director of Human Rights Watch. "To say that the Geneva Conventions do not apply to a war on terrorism is particularly dangerous, as it is all too easy to imagine this 'exception' coming back to haunt U.S. forces in future conflicts."
The Geneva Conventions presume that a captured combatant is a prisoner of war, unless a competent tribunal determines otherwise on a case by case basis. While members of al-Qaeda would probably not meet the Geneva Conventions' requirements for POW status, members of the Taliban's armed forces mostly likely would. For the purposes of determining POW status, U.S. recognition of the Taliban as the legitimate government of Afghanistan is irrelevant-despite assertions to the contrary by some Adminstration officials.
Human Rights Watch also disputed assertions that the U.S. need for "flexibility" in interrogating the detainees precludes granting POW status.
"Some U.S. officials apparently believe that ignoring the clear mandate of the Geneva Conventions will preserve America's ability to interrogate the detainees," said Roth. "In fact, nothing in the Conventions precludes interrogating POWs for war crimes or other criminal offenses."
Roth notes that while POWs are not required to answer questions beyond name, rank, serial number and date of birth, the Geneva Conventions do not prevent interrogators from asking questions on other matters. And regardless of whether a detainee has POW status, interrogators cannot use torture or other forms of coercion. But they can use plea bargaining and other incentives to cooperation-and the patient, careful, sophisticated questioning that is always required to obtain information from hostile detainees.
Human Rights Watch also pointed out that the Geneva Conventions do not preclude the trial, conviction and sentencing of POWs. POWs can be charged and tried for war crimes, crimes against humanity or other acts that would be crimes if committed by U.S. soldiers. POW status would only provide protection for the act of taking up arms against opposing military forces. If convicted, POWs would serve their sentences confined under U.S. jurisdiction and would not be entitled to repatriation absent U.S. consent.
"It would be tragically shortsighted for the U.S. to ignore its obligations under the Geneva Conventions," said Roth. "These are a set of rules that protect all people, including American servicemen and women taken captive in war."
A copy of the letter sent to Condoleezza Rice can be found here.