There are gray areas in the definitions of "prisoner of war" and "unlawful combatants," at least judging by the explanations of Catherine Deman, legal adviser to the International Committee of the Red Cross. Deman, who is visiting camps in Afghanistan where Taliban and Al-Qaeda prisoners are being held, gave a press conference in Kabul on 13 January to explain the legal background for the application of Geneva Conventions to the Afghan conflict.
Kabul, 14 January 2002 (RFE/RL) -- According to the Geneva Conventions, a prisoner of war (POW) is defined as a soldier, a member of a party to an international conflict, or a member of a militia or volunteer corps -- even if the prisoner professes allegiance to a government or an authority not recognized by the detaining power into whose hands he has fallen.
According to the International Committee of the Red Cross, this definition of POWs appears to apply to Taliban soldiers detained in Afghanistan by the U.S., but it is not the case for suspected members of the Al-Qaeda terrorist network.
Nevertheless, the ICRC's legal adviser, Catherine Deman, says nationality is not one of the criteria. She says a member of a pan-national force still could be considered a POW. Deman and other Red Cross officials spoke on the topic at a press conference in the Afghan capital, Kabul, on 13 January.
What is yet to be determined, the ICRC says, is whether Al-Qaeda members should be considered part of the Taliban armed forces, or whether they were a militia or a volunteer group not integrated into the Taliban. The Red Cross says members of Al-Qaeda could be declared POWs if they fulfilled additional conditions, such as carrying arms openly or conducting their operations in accordance with International Humanitarian Law.
The term "prisoner of war" is thus a legal term, the Red Cross says, and offers a specific status. In cases of doubt, as with "unlawful combatants" or "illegal combatants," only a court can decide who falls into these categories. This court, the ICRC says, should be a "competent tribunal" -- independent, impartial, and legally constituted according to the domestic law of the detaining power.
Answering reporters' questions, ICRC officials refused to comment on whether the U.S. has infringed on the rights of Taliban and Al-Qaeda prisoners, including whether the reported sedation of some prisoners during their transfer to a U.S. facility at Guantanamo Bay, Cuba violates international law.
Michael Kleiner, the representative of the ICRC in Kabul, said, "The question of sedation during a transfer, for example, is not mentioned in International Humanitarian Law. What is mentioned is that the transfer should happen in humane conditions and that the security of the detainees should be guaranteed. And that's all that is mentioned in International Humanitarian Law."
As for that other term used by American officials, "battlefield detainees," the ICRC says it is not a legal category and has "no legal meaning." Nevertheless, Kleiner says the ICRC is in no position to question the U.S. or the current Afghan government over the reasons behind its detention of prisoners.
"The International Committee of the Red Cross is not questioning the reasons why people are being detained. All that we need to know is that they are detained in acceptable conditions -- I mean, that they should be given food, water, allowed to wash and pray, and have access to fresh air," Kleiner said. "This is the minimum standard that should be fulfilled. Beyond that, there are no particular concerns that I can voice here. This is dealt with on a confidential basis, and then we intervene to the adequate authorities and try to improve the situation like this."
RFE/RL asked the ICRC's legal adviser, Catherine Deman, what happens when a detaining power does not respect the provisions of the Geneva Conventions.
"When a state or a party in a conflict -- be it a rebel group or any other entity that takes part in a conflict -- does not carry out its obligations in terms of humanitarian rights, the ICRC starts by gathering the most precise and the most reliable information, after which we go directly to the authorities in charge and try to discuss with them how they could maintain their obligations," Deman said. "This implies, of course, a certain form of goodwill on their part."
What happens if the detaining power still refuses to fulfill its obligations? Can the ICRC apply pressure on intractable governments?
"No, these are the limits of what the ICRC can do. We work on a confidential basis, and this confidence is based on a mutual contract with the authorities in the hope that they would take into account our remarks and that they would try to improve what has to be improved. But if we lack this minimal working basis, at that moment, we are totally powerless," Deman said.
Finally, the Red Cross insists upon a semantic distinction. It says that only persons apprehended by the U.S.-led antiterrorism coalition should be called "prisoners." The others, held by Afghan forces, should be called "detainees."