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Afghanistan: Are Taliban And Al-Qaeda 'Detainees' Actually POWs?

The U.S. is holding more than 200 suspected Taliban and Al-Qaeda fighters and is still hunting for the Taliban's leader, Mullah Mohammad Omar. So far, those held have been described as "detainees," as opposed to prisoners of war, or POWs. What is the distinction, and what does it mean for how they will be dealt with?

Prague, 3 January 2002 (RFE/RL) -- The U.S. military is holding a growing number of suspected Taliban and Al-Qaeda fighters for questioning at locations in Afghanistan and on an American naval warship in the Arabian Sea.

U.S. Rear Admiral John Stufflebeem gave the latest figures yesterday on how many fighters are being held: "We are currently holding approximately 221 [detainees] -- 200 of those are in Kandahar, eight of those are now on the 'USS Bataan,' 12 at Bagram and one in Mazar-i-Sharif."

The captured fighters have been described most often as "battlefield detainees" -- not as prisoners of war.

Without POW status, detainees have only limited rights under the 1949 Geneva Convention. This particular convention grants POWs the right to be treated humanely, fed and housed adequately, and to have access to medical care. They cannot be tortured or forced to answer questions. When a war ends, they are repatriated to their home countries.

The U.S. says it is treating its captives as if they are POWs and has offered no information on the distinction between the two terms.

So when is a prisoner captured during a conflict not a prisoner of war? Adam Roberts is a professor of international relations at Oxford University and the editor of the well-known book, "Documents on the Laws of War."

He says captured enemy combatants must fulfill several criteria to be declared POWs, and it's far from clear that the Taliban and Al-Qaeda fighters are covered by these laws of war.

The 1949 Geneva Convention says that combatants must have a "fixed distinctive sign recognizable at a distance" and carry arms openly. Robert outlines other requirements: "Secondly, they must be commanded by a person responsible for his subordinates -- and again, the command structure within Al-Qaeda is far from clear, and perhaps in the Taliban, too. And thirdly -- and this is the real problem -- to be a prisoner of war they must be a member of forces that conduct their operations in accordance with the laws and customs of war. And manifestly -- assuming that Al-Qaeda has been responsible for the terrorist outrages attributed to it -- there's no way in which Al-Qaeda can be viewed as conducting its operations in accordance with the laws and customs of war."

Roberts says there are other complications, especially with the foreigners captured fighting alongside Taliban and Al-Qaeda forces.

"Normally the assumption of the whole prisoner-of-war regime is that a prisoner of war at the end of a conflict is repatriated to his country. And in this case it's not at all clear that it would make sense to repatriate prisoners because they would continue to represent a danger. [They] are a personal threat," Roberts says. "Both because of their training and their ideology, they are individually potentially dangerous. But also it's far from clear that their own countries in all cases would want to accept them as free, repatriated individuals. They might want to keep them in detention themselves."

Roberts says POW status could cause other problems if the U.S. decides to try some suspects: "Under the Geneva Conventions, they would have exactly the same rights as a U.S. soldier put on trial -- the procedural rights, including those of appeal. And it is arguable whether these particular prisoners should have the full rights of appeal through the civil legal process in the U.S. that would apply to an American officer who had been, say, court-martialed. One of the difficulties of that is the problem of evidence, that the type of evidence and standard of evidence that would be required for the trial of an American officer would be a rather high standard. And with some of these Al-Qaeda people who might not even give their names -- [their] identity and origin may not be known may be difficult to determine [their history with] complete accuracy -- that standard of proof would be sometimes rather difficult to achieve."

If some of the suspects do end up in court, the U.S. may choose to try them in front of a military tribunal. This caused concern among civil libertarians when U.S. President George W. Bush signed the order approving this process in November. Some were worried that the plans would omit many of the usual safeguards designed to ensure fair civilian trials.

But draft proposals leaked in the closing days of last year may go some way toward allaying those fears.

"The New York Times" reported that the rules -- if approved -- would be closer to those governing military trials of U.S. servicemen and retain many of the judicial safeguards.

A two-thirds majority would be enough to find someone guilty, but the tribunals would require a unanimous verdict to impose a death penalty. Guilt would have to be proven beyond reasonable doubt. Proceedings would be held mostly in public, though some parts could be closed to prevent the disclosure of sensitive information, and hearsay evidence would be allowed. Defendants -- who would be presumed innocent until proven guilty -- would have the right to hire civilian lawyers and to appeal.

President Bush declined to comment on the plans for a military tribunal, saying in late December that the leaked report was preliminary: "Whatever the procedures are for the military tribunals, our system will be more fair than the system of [Osama] bin Laden and the Taliban. That is for certain. Prisoners that we capture will be given a heck of a lot better chance in court than those citizens of ours who were in the World Trade Center or in the Pentagon were given by Mr. bin Laden."

U.S. Defense Secretary Donald Rumsfeld said recently that some of the detainees from Afghanistan would be transferred shortly to the U.S. naval base at Guantanamo Bay in Cuba. But he added that there are no plans to conduct military trials there.