[Peace-discuss] By Flouting War Laws, US Invites Tragedy

[patton paul]

 By Flouting War Laws, US Invites Tragedy
by Erwin Chemerinsky


On Sunday, Secretary of Defense Donald Rumsfeld quickly invoked
international law in condemning Iraq's treatment of American prisoners of
war and its use of civilians as human shields. As soon as the Americans
were shown on television, Rumsfeld denounced Iraq for violating the Geneva
accords, which govern the treatment of prisoners of war.

But Rumsfeld's hypocrisy here is enormous. For two years, the Bush
administration has ignored and violated international law and thus has
undermined the very legitimacy of the treaties and principles that
constitute the law of nations. Though we all hope, of course, for the
quick and safe return of the American prisoners of war, the fact is that
-- unfortunately -- Iraq and other nations may feel much freer today to
violate international law in the way they treat war captives and the way
they wage war.

One clear violation by the United States is taking place in Guantanamo
Bay, where for the last 15 months the U.S. has held more than 600 captives
in clear violation of international law.

Under the third Geneva Convention, those who were caught in Afghanistan
are deemed prisoners of war if they were fighting for the Taliban.
International law prescribes the way they can be questioned, how they are
to be treated and when they are to be repatriated. The U.S. government has
ignored all of these requirements.

Rumsfeld has asserted that those held in Guantanamo are "enemy combatants"
and thus the rules for prisoners of war do not apply. International law
draws a distinction between "prisoners of war," who were soldiers fighting
for a nation, and "enemy combatants," who were not acting on behalf of a
country; enemy combatants are accorded fewer protections than prisoners of
war. Under well-established principles of international law, only those
who fought for Al Qaeda and not the Taliban government are enemy
combatants. The Geneva accords are clear that there must be a "competent
tribunal" to determine whether a person is a prisoner of war or an enemy
combatant.

More than a year ago, Secretary of State Colin Powell expressly recognized
this but nothing has been done despite the requirements, however
ambiguous, in treaties ratified by the U.S.

Several months ago, top-level administration officials were quoted as
saying they knew many prisoners were being held in Guantanamo by mistake
because of inaccurate intelligence from foreign governments and because of
arrests made in the heat of battle. Therefore, individuals continue to be
held even though it is known that they did not participate in terrorism
and have no useful information, and even though it is a clear violation of
international law to continue to detain them.

Many of these individuals have been held in solitary confinement, some for
as long as 15 months, with no charges brought against them and no end in
sight. For a time, many were held in small cages. They have not been
allowed to speak to an attorney, and they have had virtually no outside
contact. This treatment violates basic principles of human rights law.
About 25 of the detainees have attempted suicide.

Several lawsuits have been brought on behalf of these detainees, claiming
that the U.S. is violating international law. Washington has successfully
moved to dismiss each of these and has persuaded judges that no court has
jurisdiction to hear such claims. This too violates international law
because the International Covenant on Civil and Political Rights states:
"Anyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that the court may
decide without delay on the lawfulness of his detention." The treaty also
provides that "[n]o one shall be subjected to arbitrary arrest and
detention."

Rumsfeld has criticized Iraq's use of civilians as shields against attack
at its military and political facilities. Although he is right that this
is despicable behavior, he cannot legitimately invoke international law to
govern how a war should be fought when the war itself is a clear violation
of international law. Nothing in international law authorizes a preemptive
war to overthrow a government and disarm it. Our war in Iraq fits in none
of the prescribed situations where it is lawfully permissible.

There are enormous costs to such behavior. The United States cannot expect
other nations to treat our prisoners in accord with international law if
we ignore it. If the United States wants other nations to live by the rule
of law, it too must do so.

Erwin Chemerinsky, a professor of law and political science at USC, was
one of the plaintiffs and co-counsel in a lawsuit brought on behalf of the
Guantanamo detainees.

Copyright 2003 Los Angeles Times