The United States is set to start transferring scores of Al-Qaeda and Taliban prisoners from Afghanistan to an American Navy base in Cuba. Experts say the unique circumstances of the war in Afghanistan present some daunting legal questions on how to treat those prisoners.
Washington, 10 January 2002 (RFE/RL) -- The United States says it is set to transfer an initial group from nearly 400 Al-Qaeda and Taliban prisoners captured in Afghanistan to a U.S. base in Cuba where they will be detained and interrogated -- and possibly tried for war crimes.
But the matter of taking prisoners in Afghanistan, including the Taliban's former ambassador to Pakistan, transferring them out of the country, and perhaps trying them for war crimes has got U.S. legal experts scratching their heads, wondering: Is America's behavior legal under international law?
The short answer, it appears, is the jury is still out.
Experts interviewed by RFE/RL expressed concern about some U.S. actions in what they call an extremely complex legal environment involving soldiers from dozens of countries fighting for a non-state actor -- Osama bin Laden's Al-Qaeda terrorist network -- in Afghanistan.
Alfred P. Rubin, a professor of international law at the Fletcher School of Law and Diplomacy at Tufts University in Boston, warns that any eventual American breach of international law could come back to haunt Washington: "These are very complicated questions in which every step the U.S. takes has enormous implications and people are going to do to us what we think we can do to them."
American officials have stressed that all detainees held in Afghanistan and on U.S. Navy ships are being treated humanely and in accordance with the 1949 Geneva Conventions, which dictate the treatment of war prisoners. At last count, the U.S. held 368 Al-Qaeda and Taliban prisoners, many of them near the southern city of Kandahar.
General Richard Myers, who as chairman of the Joint Chiefs of Staff is the top U.S. military official, says the first group of prisoners will be flown within days to the U.S. naval base at Guantanamo Bay once the base on a U.S.-held part of the island of Cuba is prepared to receive them.
The Cuban facility will be able to handle upwards of 2,000 prisoners. Myers made this observation at a Pentagon briefing yesterday: "We want to make sure the facilities in Guantanamo Bay are adequate for the task. And this is serious business. We've gotten help from experts in this business -- both our own military detention people who work this issue and Bureau of Prisons [people] and so forth. So we're trying to make it ready in Guantanamo to start relieving some of that pressure in Kandahar."
Myers says the U.S. took custody on 8 January 8 of two Al-Qaeda leaders discovered with a group of fighters after the U.S. bombed a cave complex near the city of Khost. He says information gathered from prisoners recently has helped thwart terrorist attacks and that these two men were singled out for detention because they appeared to offer a greater chance for gleaning intelligence: "They are Al-Qaeda, as opposed to Taliban. They become very interesting to us because they're part of the worldwide network of terrorism that Al-Qaeda supports. And so we would hope that we might be gleaning information that might point to future operations."
So far, the highest-ranking member of the Taliban in U.S. custody is Mullah Abdul Salam Zaeef, the militia's former ambassador to Islamabad who is being held on a U.S. Navy ship. The U.S. hopes he can provide information on the whereabouts of Taliban leader Mullah Mohammed Omar and Bin Laden, the alleged mastermind of the 11 September terrorist attacks on America.
However, the legality of Zaeef's detention was questioned by Tufts University's Rubin, who notes that international law grants immunity to diplomats regardless of the actions of their governments.
Rubin says that at the heart of international law is the idea of reciprocity -- that countries treat each other the way they themselves want to be treated -- and that taking an ambassador into custody could eventually endanger U.S. diplomatic personnel in another country.
Rubin also questions the transfer to Guantanamo: "It seems to me that [taking prisoners to Guantanamo] creates serious questions. That implies that the laws of war apply -- that is a thing that every congressman ought to be upset about in the United States -- and it does mean that the Al-Qaeda people, if they capture one of ours, can remove him to Somalia or some other place of more convenience to them and try him there. I have real problems seeing us being willing to accept that version of organization."
Jim Ross is a senior legal adviser with Human Rights Watch in New York city. While he stresses that there are absolutely no indications that the prisoners are being mishandled, Ross says he questions the way in which they have not been accorded prisoner-of-war status. He says that under the Geneva Conventions, a military tribunal of some sort on the ground should make the status decision, as happened in the 1991 Persian Gulf War.
Ross says his main point is that the U.S. should be careful not to abuse international law in this case, even if the abuses are just on so-called technicalities -- especially if it decides to try some of its prisoners in military tribunals.
"The U.S. has been very outspoken against military tribunals in other countries and courts that don't meet fair trial standards," Ross says. "And in order for the U.S. to be able to continue to speak out against such trials elsewhere, it's essential that the U.S. meets those standards when it faces its own kind of problem."
Ross adds that under international law, the U.S. could not use military tribunals for these cases along the lines of the controversial tribunals recently announced by President George W. Bush. This is because, Ross says, those tribunals are only for foreigners and under the Geneva Conventions, prisoners must be accorded the same treatment as soldiers of the country holding them.
Depending on what the Al-Qaeda and Taliban fighters have done -- such as helping to plan the September attacks -- Ross says that they could be legally tried by a military tribunal and face a variety of charges under U.S. state, federal, and international law, including war crimes and crimes against humanity.
But Ross says they must be accorded proper legal procedures, including access to legal counsel.