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"Prisoners of a Different War"--A Commentary by Prof. Ruth Wedgwood

(This essay originally appeared in the January 30, 2002, edition of the Financial Times of London.)

Prisoners of a different war: The Geneva convention applies to conventional soldiers, not to the terrorists being held at Camp X-Ray.

By Ruth Wedgwood, professor of law at YLS

As allies in the war against terrorism, the United States and Europe must be careful to avoid fracturing their common effort. To that end, it makes sense to think soberly about the dilemma of handling the terrorist fighters currently detained at Guantanamo, Cuba.

Washington feels a need for Atlantic unity, yet remains convinced that the third Geneva convention of 1949 does not fit the life-or-death problems of the current crisis. That is why the White House rejects the labelling of al-Qaeda and Taliban fighters as "prisoners of war".

The Geneva convention never purported to govern every form of warfare. The rules do not, for example, cover internal civil wars. Most assuredly, they were not negotiated to govern wars against piratical groups that operate internationally.

The convention's premise is that both parties to the conflict will obey the fundamental rules for lawful belligerency: that any fighting force must refrain from terrorising innocent civilians and avoid masking soldiers in civilian dress, lest an adversary target innocent civilians in response.

The test is put in four parts. Lawful combatants must have a responsible commander (to ensure accountability for violations); wear a fixed distinctive sign visible at a distance; carry their arms openly; and fight in accordance with the laws and customs of war.

These requirements apply as much to regular armies as to militia forces. It is thus fallacious to suppose that the Taliban should be allowed any exemption.

Nonetheless, one should ask what difference all of this could make. After all, it is the practical consequences that drive the United States position.

Interrogation is not the key. The Geneva convention allows a searching interrogation of prisoners of war, even while prisoners can legally refrain from giving more than "name, rank and serial number".

Classification as a prisoner of war and lawful combatant makes some smaller differences in trial procedure. Geneva permits military trials for war crimes committed by PoWs (indeed, article 84 favours military trials over civilian). The convention also explicitly permits closing portions of a trial where intelligence information might be revealed. Hearsay evidence is also admissible. Geneva does permit a broad choice of defence counsel (Johnnie Cochran, O. J. Simpson's lawyer, should be pumping for PoW status) and may require that post-conviction appeals be handled in the same manner as court martial.

But there are two far more profound problems. The first concerns safe conditions of confinement. Geneva contemplates that POWs will be given the free run of a camp. They cannot be confined in cells. The treaty guarantees them utensils including "razors, combs (and) nail scissors", as well as "needles" and "pen-knives". This full equipage does not fit the case of combatants who vow they will kill an American before they leave the camp.

Most ordinary soldiers, once captured, are willing to stand down from combat and wait for the war to finish. The al-Qaeda and Taliban are not. The violence at the Mazar-e-Sharif prison in Afghanistan was begun by al-Qaeda fighters who had supposedly surrendered.

A formal designation as "prisoners of war" could also make a profound difference in the crimes with which al-Qaeda and the Taliban can be charged. An ordinary soldier in a war between nation states is not to be punished for striking at military targets. These are deemed to be his duty and the act of his sovereign. If one were to grant the bin Laden network protected status as lawful combatants, it could be far more difficult to bring criminal charges for their bloody terrorist attacks on the Pentagon, the USS Cole and the Khobar Tower military barracks in Saudi Arabia. These bombings killed and wounded hundreds of American soldiers and civilians. It is not surprising that the Pentagon feels strongly about preserving the option of trial.

Last, some observers have urged that the military should convene panels of three officers, under article 5 of the third Geneva convention, to decide on the status of the particular Guantanamo detainees. Article 5 panels were designed to look at fact-specific individual cases, such as deserters or soldiers who have lost their identification cards, or persons who have committed a belligerent act but are of uncertain affiliation. They were not designed for resolving important interpretive questions of treaty law and customary law in a new kind of war. This is the duty of nation states at the highest level of political responsibility.

There will undoubtedly be some review of the combatants sent to Camp X-ray, to guard against human errors in their initial identification. But the critical task of fitting an older legal regime to a new mode of terrorist war is a responsibility that belongs to presidents and their advisers.

The author is professor of international law at Yale and Johns Hopkins University. She is a former federal prosecutor.