Detainees or POWs?

National Review ^ | 12/24/2002 | Mackubin Thomas Owens

[stop_fascism]

Detainees or POWs? Ancient distinctions. By Mackubin Thomas Owens is professor of strategy and force planning at the Naval War College in Newport. His views do no necessarily reflect those of any agency of the U.S. government. January 24, 2002 8:55 a.m.

as President Bush's decision launch a "war against terrorism" in response to September 11 now hoisted the United States on its own petard? That would seem to be the case as international organizations and even officials of allied countries such as Great Britain have intensified criticism of the United States concerning its treatment of captured al Qaeda and Taliban fighters and called upon the U.S. government to designate them "prisoners of war" (POWs), rather than as "detainees."

The charges that the detainees' living conditions at Camp X-Ray on Guantanamo Bay are inhumane and that they are being mistreated are absurd. But criticism of the U.S. treatment of the detainees is related to the far more important issue of the status of those being held by the United States. The U.S. maintains that they are "unlawful" or "unprivileged" combatants who "do not have any rights under the Geneva Conventions," that series of agreements that governs the status of captives in war. The U.S. position is that while we are, for the most part, adhering to the Geneva Conventions, the status of the detainees does not obligate us to do so.

This designation has been attacked by individuals and organizations, including Mary Robinson, United Nations High Commissioner for Human Rights, Amnesty International, and the International Red Cross. Such critics insist that the detainees are legally POWs, a designation that would trigger certain rights and protections under the Geneva Conventions.

For instance, a POW is not required to respond to interrogation beyond providing his name, rank, and serial or service number. He must be repatriated at the end of hostilities, unless he is charged with war crimes, in which case he must tried by the same court and under the same rules of evidence and procedure as members of the detaining power's armed forces would be. In other words, a POW would have to be tried by courts martial, not by military tribunals of the sort that have been authorized by the president.

Since President Bush has invoked a "war against terrorism," why shouldn't the captured fighters be accorded POW status? Many of the reasons advanced to deny them that status simply do not hold water. The claim that there was no congressional declaration of war is true, but it is arguable that congressional passage of the antiterrorism bill constituted a contingent declaration of war. In any event, as Justice Grier wrote in the Prize Cases decision (1863), a war is defined "by its accidents — the number, power and organization of the persons who originate and carry it out." No one with any sense can deny that the United States was at war as of 8:48 AM on Tuesday, September 11, 2001. The contention that the fighters did not wear uniforms is also true in the formal sense of Western armies, but they wore pretty much the same garb as our Afghan allies did.

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — "the common enemies of mankind."

The former, bellum, became the standard for interstate conflict, and it is here that the Geneva Conventions were meant to apply. They do not apply to the latter, guerra — indeed, punishment for latrunculi traditionally has been summary execution.

While not employing the term, many legal experts agree that al Qaeda fighters are latrunculi — hardly distinguishable by their actions from pirates and the like. As Robert Kogod Goldman, an American University law professor who has worked with human-rights groups told the Washington Times, "I think under any standard, the captured al Qaeda fighters simply do not meet the minimum standards set out to be considered prisoners of war."

At a recent conference in Europe, Marc Cogen, a professor of international law at Ghent University argued that "no 'terrorist organization' thus far has been deemed a combatant under the laws of armed conflict." Thus al Qaeda members "can be punished for all hostile acts, including the killing of soldiers, because they have no right to participate directly in hostilities."

The status of the Taliban is more problematic. Despite the fact that the United States did not recognize the Taliban as the legitimate government of Afghanistan, critics argue that the Taliban's effective control of Afghanistan, its military structure and functioning government rendered it a de facto state, the troops of which should be accorded POW status. They point out that a legal ruling required the United States to accord Panamanian strongman Manuel Noriega POW status despite the fact that it did not recognize his government.

But a state that harbors latrunculi would seem to forfeit its own status as a legitimate state. The close association of al Qaeda and the Taliban, especially at the higher levels, vindicates the legal position of the United States in treating both al Qaeda and Taliban fighters as detainees rather than POWs.

Under the leadership of President Bush, the United States has eschewed vengeance against the perpetrators of September 11. Instead, it has pursued a patient, discriminating strategy designed to destroy the al Qaeda network while minimizing collateral damage. The fight will be a long one, and it will help to have the rest of the civilized world on our side. But the civilized world needs to distinguish between legitimate combatants on the one hand and latrunculi on the other. This distinction makes it clear that the United States has nothing to apologize for when it comes to its treatment of the detainees in its custody.

[BikerNYC]

Thank you. That was great. Since they are not POWs, does that mean we have to pay to hold these people indefinately, since it does not seem that they would be repatriated once hostilities are over?

[cantbebought]

It is in the interest of all nations and parties which abhor terrorism to preserve the Geneva Convention for the protection only of those personnel who behave as disciplined soldiers from responsible states or parties, rather than as terrorists which act irresponsibly. This is neccessary to make terrorism as unpalatable as possible- and to make lawful tactics the norm. We must not blur the distinction betwen terrorism and legitimate warfare.

Exactly, it's the difference between feeling & thinking, or as Rush puts it Symbolism over Substance. The unintended consequence of these liberals getting thier way could be the destruction of the Geneva Convention.

Great post.

[cantbebought]

If Gore had won, yes. Gee, maybe there is a difference after all. :-)