FAIRNESS IN WARTIME

Everyone in the Bush administration seems to agree that the people captured in Afghanistan and now held at Guantanamo Bay in Cuba are “illegal combatants” and not prisoners of war. But Secretary of State Colin Powell has raised a serious question as to how their status should be determined. He insists that the United States should follow procedures set forth in he Geneva Conventions of 1949.

First, as to the practical consequences. American authorities, operating what looks more like a criminal investigation than a war, want to interrogate the detainees to find out more about the terrorist network whose attacks over several years culminated in the catastrophic destruction of the World Trade Center on Sept. 11. But if they should be classified as POWs, they could refuse to answer any questions and merely give their names, ranks and serial numbers. They also would be guaranteed housing standards like those of U.S. service men and women. And they would be protected against “intimidation and public curiosity.”

The Convention Relative to the Treatment of Prisoners of War, a solemn agreement signed by the United States and 188 other nations, tells in detail what it takes to make a person a prisoner of war. He (or she) must be under the discipline of a nation or other organized authority, must wear some sort

of uniform showing membership in an armed force, must openly carry a weapon

and so on. Authorities agree that the terrorist network doesn’t qualify as a party to a war as envisaged by the Convention. Nor

do most of the prisoners match the convention’s definition of soldiers fighting in a war.

But if the situation seems clear cut to the American authorities, it looks far from certain to some of the European and Middle East members of the anti-terrorism coalition. Nor to some officials of the United Nations, the Red Cross, and other humanitarian organizations. Some Americans look at pictures of the eight-foot-square cages at Guantanamo and doubt that the prisoners are being treated fairly. (Many, on the other hand, think the treatment is plenty good enough for members of the conspiracy that has killed so many American civilians.)

Fortunately, the drafters of the Geneva Convention, signed originally in 1929, foresaw the possibility of disagreement. After defining prisoners of war in Article 4, they included the following Article 5:

“The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

“Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy he protection of the present Convention until such time as their status has been determined by a competent tribunal.”

Why not go by the rules? Arrange for some sort of disinterested court to consider each case and decide whether the person is truly an illegal combatant or, instead, merely an ordinary foot soldier qualified for POW treatment (and, incidentally, of no value in the investigation of the criminal case). Why keep a controversy going by acting as if the United States is above an international commitment that it joined in signing?