The question of whether or not the members of the al-Qaeda terrorist network taken prisoner by the US in the war in Afghanistan should count as prisoners of war has led to widespread discussion in the international community. The reason for the US refusal to give them POW status is to avoid the regulations in the Geneva Convention guaranteeing the rights of POWs. This move is being questioned by the EU and other international organizations. As long as their status as POWs is not established, these al-Qaeda members will not have the right to humane treatment.
The US is trying to play both sides of the fence. On the one hand, the White House says that the prisoners are being treated humanely -- they not only receive three meals a day, but also have freedom of religion and movement. On the other hand, the US Department of Defense repeatedly emphasizes that the prisoners don't meet the requirements for POW status. This means that the US doesn't need to look to the Geneva Convention and its implications for the rights of POWs. As long as the US maintains that all treatment follows the "spirit of humanitarianism," other nations have no say in the matter.
A new category, "unlawful combatants," is used by the US to refer to these detainees, causing many international legal scholars to blink their eyes in astonishment. Since it is a new term, there are no standards in international legislation regarding their treatment. The US has declared that since these "unlawful comba-tants" have no uniforms, don't represent a national army and have attacked civilians, there is no way they can meet the definition of a POW.
In the eyes of the US, the detained al-Qaeda members do not even have the right to be called POWs, much less receive the treatment due POWs. Even so, the US still emphasizes that the treatment of the detainees is in full accordance with the humanitarian spirit of the Geneva Convention.
The US also has an explanation for the photos of al-Qaeda prisoners in Guantanamo Bay that were distributed recently: "unlawful combatants" are hard-core terrorists, they are dangerous and combative, and the treatment accorded them is "acceptable." The question is what kind of treatment is hidden behind this "acceptable."
In fact, even if these "unlawful combatants" don't meet the definition of POWs, then the regulations of the Geneva Convention should still be rigorously applied. The four conventions signed in 1949 clearly state that any person placed hors de combat by sickness, wounds or detention, or any other cause, shall in all circumstances be treated humanely, their physical and mental health shall be respected, and when necessary, they shall receive fair assistance and treatment.
Apart from this, POWs only have to submit basic information such as their name, rank and number.
The 1977 Protocol Additional to the Geneva Conventions of Aug. 12 1949 and the Protection of Victims of International Armed Conflicts (Protocol 1) expanded the scope of the Geneva Conventions to all armed conflicts. If the US could define the terrorist attacks on Sept. 11 as war and persuade the international
community to wage war in Afghanistan, but today can refuse to give the detained al-Qaeda members POW status, then it will be difficult for the US, with its constantly changing standards, not to arouse hatred and thoughts of revenge from external forces.
Secretary of State Colin Powell has requested that President George W. Bush treat the detained al-Qaeda members as POWs, despite opposition from the National Security Council. Under pressure of the international community, however, the US has already decided to define the legal status of the detainees in the near future. Whether or not the over 100 detainees held at Guantanamo Bay and the more than 300 al-Qaeda members that are about to be sent there will be able to avoid the "non-POW" status will depend on US willingness to give up its almost imperialist and autocratic style and once again accept monitoring and control by the international community.
Chien Hsi-chieh is a DPP legislator and executive director of the Peacetime Foundation of Taiwan (
Translated by Perry Svensson
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