The recent controversy concerning the status of treatment of Taliban and al-Qaeda detainees at the Guantanamo base in Cuba offers an occasion for reflection about the seriousness with which our government undertakes its legal obligations.
 When the U.S. signed the Geneva Conventions in 1949 which govern, among other things, the treatment of persons captured in combat, it agreed to a comprehensive legal framework. This framework specifies that prisoner-of-war (POW) status applies to several categories of combatants who "have fallen into the power the enemy," including (as helpfully summarized by Human Rights Watch):
. . . members of the armed forces of a party to the conflict, members of militia forces forming part of those armed forces, and inhabitants of a non-occupied territory who take up arms openly to resist the invading forces. POW status also applies to captured members of irregular forces who are under responsible command; have a fixed distinctive sign (such as an insignia, uniform or other marking) recognizable at a distance; carry arms openly; and conduct their operations in accordance with the laws and customs of war.
 Furthermore, the Conventions require that the combatants' status is to be determined by a competent tribunal, not by any other entity, and until that is done the detainees must be considered as POWs. The U.S. government has, in the context of previous conflicts, affirmed this interpretation. But the Bush Administration is attempting to glide past these and other legal requirements, such as the prohibition on the use of coercion or torture for purposes of interrogation, even interrogation as permitted under the Geneva Conventions.
 The Guantanamo prisoners can and are likely to be charged with offenses arising from their participation in armed conflict. However, as abhorrent as their motives may be to our government, the U.S. is legally required to uphold its obligations under the Geneva Conventions, which have acquired the status of U.S. law as a body of ratified treaties, and adhere to international standards for the establishment of a competent tribunal. If the proposed International Criminal Court were in operation and recognized by the U.S., the U.S. could even bring war crimes and related charges against the prisoners with sufficient evidence.
 U.S. efforts to set their own standards for the tribunals and treatment of the prisoners undermine the future adherence of other governments to international standards should U.S. forces be captured in combat. It also undermines the U.S. military's efforts to have the Geneva standards observed in its training programs as is the current practice.
 U.S. attempts to undermine international law only serve to weaken the rule of law worldwide. Our democratic system of government, with legal processes which provide guarantees to all persons regardless of their actions, is designed to ensure harmony in our nation and is based on doing what we say we will do. When we undermine the values which we publicly champion in the name of security, it is difficult to expect that other nations will respect our values and adhere to democratic principles. When we provide even the appearance of double standards we also undermine our own security. If we wish other nations to uphold the rule of law and extend democratic values, they - and we - should expect us to do what we have obligated ourselves to do within our country and in relation to the international community.
More resources to help readers understand the issue:
An article that explains, in language that is legal but not extremely technical, some of the legal principles and procedures of humanitarian law. (www.asil.org/insights/insigh81.htm)
The site for the International Committee of the Red Cross features a section on humanitarian law on the left-hand side of the page. The site also carries frequent updates, depending on the most recent events. (www.icrc.org)
The American Society of International Law's crimes of war
project can be very helpful for anyone wishing to conduct further
research on the topic. (www.crimesofwar.org)
 "Background Paper on Geneva Conventions and Persons Held by U.S. Forces," January 29, 2002, http://www.hrw.org/backgrounder/usa/pow-bck.htm.
© March 2002
Journal of Lutheran Ethics
Volume 2, Issue 3