The Geneva Conventions consist of four separate treaties that set out standards for the treatment of civilians and military personnel during wartime. The Third Geneva Convention, last revised in 1949, specifically covers the treatment of prisoners of war. The Bush administration had argued that the terror suspects being held at the U.S. base in Guantanamo, Cuba, were not POWs and therefore not subject to the Geneva Conventions.
RFE/RL: Do you consider the U.S. Supreme Court decision a victory for the Geneva Conventions? And if so, in what way?
Jarna Petman: The whole setting up of "light torture" mechanisms [interrogation techniques that interrogators say do not constitute torture, but human rights groups say do] and the intensified interrogation mechanisms, the unusual detention centers set up all over -- these are all violations of the Geneva Conventions. And [the Bush adminstration has] been pushing and pulling the convention to areas and places where the convention has not been before. So this is a victory for the convention as it has traditionally been interpreted and the way it has traditionally stood.
RFE/RL: The Bush administration had argued that terror suspects detained in Afghanistan and other countries in the war on terror were not normal soldiers and thus did not enjoy the rights given prisoners of war, as outlined in the Geneva Conventions. Does the Supreme Court ruling go against this interpretation?
Petman: The calling of the detainees "enemy combatants" and "illegal combatants" was something that the Geneva Convention does not recognize. This is a category that has never existed before, and it has been created in the war against terror specifically to put these people [out of reach of] the Geneva Conventions. And for the Supreme Court to recognize [implicitly] that this particular category does not exist -- it is indeed the Geneva Conventions that win the day. This is a great victory.
RFE/RL: What do the Geneva Conventions actually say about how to deal with prisoners captured during wartime?
Petman: What the Geneva Conventions require is that each time you capture an individual on the battlefield, you must first of all define whether that person is a prisoner of war or a civilian. If that person is a prisoner of war, and you suspect that he or she has committed war crimes, then the Geneva Conventions require that you submit that person to the very same criminal procedures that you would your own soldiers. Those are national courts-martial. If you decide that this particular person is not a prisoner of war but a civilian, then you have two ways to go. Either you find that person innocent, in which case you will have to let that person go. Or, if you suspect that this particular person has committed war crimes, then you must submit that person to the national, domestic criminal-procedure system.
"The original attack against Afghanistan was widely accepted by the international community as a self-defense action -- not a war action -- but a self-defense action. And any self-defense action has to be proportionate and it has to be kept within the limits of necessity. Now it's the year 2006.... This particular self-defense action has long ago stopped being legitimate or legal.
RFE/RL: Looking to past wars as a model, could the Bush administration simply reclassify its detainees in Guantanamo as POWs and hold them until the war on terror is won before releasing them?
Petman: That would indeed be possible, but what makes it a bit suspect is that this particular war will never be won. There will never be a day when the last terrorist on the face of the Earth is wiped out because the whole classification "terrorist" is, let's say, suspect in the sense that this particular category has never been defined in international treaties, precisely because it's very elusive. You can choose to call those who demonstrate against the government “terrorists” and hence widen the whole notion of terrorist. In that sense, the war against terror will never, ever, be won.
RFE/RL: Are you saying there is, in your opinion, a problem with the term "war on terror"?
Petman: The original attack against Afghanistan was widely accepted by the international community, way back in October 2001, as a self-defense action -- not a war action -- but a self-defense action. And any self-defense action has to be proportionate and it has to be kept within the limits of necessity. Now it's the year 2006 and the bombings in Afghanistan and indeed in numerous other places around the globe are still going on. This particular self-defense action has long ago stopped being legitimate or legal. And when it comes to this particular operation being defined as a "war," that's the Bush administration's use of the term to try to widen all these other legal categories to fit better into its purposes.