A UB law professor believes the treatment of the 186 prisoners detained in Guantanamo Bay, Cuba by the U.S. government - and the hundreds of additional prisoners held in custody in Afghanistan - violates international law set forth by the rules of the Geneva Convention.
The prisoners should be held at prisoner-of-war status, as it applies to the guidelines of the convention rules relative to the treatment of prisoners, according to Makau Mutua, UB professor of law and co-director of the university's human rights center. Mutua believes he can prove that these prisoners are prisoners of war.
"If you look at article four (of the Geneva Convention Relative to the Treatment of Prisoners of War) closely, you will note that POWs can belong to either of two categories," said Mutua. "In the first, they can be the standing forces of a party to the war (the official armed forces of a state) or militias or volunteer corps forming part of such armed forces."
The Bush administration recently extended the convention's protections to captured Taliban fighters, but not to al Qaeda fighters and other terrorists. White House spokesman Ari Fleisher said the application of the regulations would have little effect on their daily treatment at the military base in Guantanamo, according to a Monday press release.
By limiting the convention's protection to only Taliban detainees, the Bush administration has garnered some international criticism. The administration has had a difficult time trying to prove to critics that not all detainees should receive the protection of POW status.
Until recently, the administration took a more strict interpretation of the convention's mandates, presenting technicalities in the statutes that prevented the detainees from being protected under international laws.
The Bush administration argues that the Taliban regime is not a legitimate government, and in such an instance, the mandates of the Geneva Convention do not apply. Additionally, the administration repeatedly underscores that these men are not soldiers, but terrorists, thereby negating any possibility of POW status.
"The al Qaeda fighters - as far as we can tell - were in Afghanistan at the invitation of the Taliban government and were connected to and formed part of the Taliban forces," Mutua explained. "I do not think that it matters whether the two forces were fighting together or at times separately in different locales. The resistance was part of the same military transaction."
"The second category under article four refers solely to 'members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a party to the conflict,'" Mutua continued.
Under this classification, Mutua argued, any other corps members would be considered POWs if they: fought in a structured command, are easily identifiable from a distance, carry arms openly and obey the rules of war.
"It is clear that [the al Qaeda prisoners] fought under a structure, that they carried arms openly, that they could be identified (as they were by the United States), and that there is no evidence that they violated the rules of war in Afghanistan."
Interestingly, Defense Secretary Donald Rumsfeld uses the lack of military transparency to justify the administration's classification of al Qaeda fighters as rebels.
"By not wearing uniforms, by not carrying your weapon openly, by not carrying insignia of that, you're trying to suggest that you want the advantages of an innocent, a civilian, a non-combatant," stated Rumsfeld in a Jan. 23 CNN report.
Mutua cautioned the Bush administration that "the United States must exercise these rights and responsibilities, but it must do so within the framework of international law and with restraint. Superpower status does not place a state above law or justify unilateralism in international affairs."
"The rule of law works when all - both the powerful and the weak, the big and the small - plays by the mutually agreed rules of the game."
