Background:

11th September 2001 once again turned the world attention towards a forgotten wound, Afghanistan. United Nations Security Council resolutions 1368 and 1373 have been interpreted by US, Britain and their military alliance as sign of go ahead for attack-invasion of Afghanistan. Since the commencement of US and its allies military operations in Afghanistan in October 2001, thousands of persons have been detained by anti-Taliban Afghan and US armed forces. In addition to Afghan nationals, many Pakistanis, as well as smaller numbers of Saudis, Yemenis and others from Arab states, Uzbeks, Chechens from Russia, Chinese, Europeans, and others who caused Afghans immense suffering, are among detainees. These extremely conservative groups, some stripped of their own nationalities, found a sanctuary in Afghanistan mostly when Taliban came to power in 1996. Filled with dogma, anger and thirst for destruction of symbols or ideologies opposing theirs, they turned Afghanistan into a ghost city. From destruction of historic monuments to genocide these aliens with the help of Taliban government hauled Afghanistan to stone age.

After their defeat, several thousand of these groups, is being held in Afghan custody at the large prison complex in Shiburghan, west of Mazar-i-Sharif in northern Afghanistan. There are dozens of smaller Afghan-controlled prison facilities and ad-hoc detention facilities scattered around Afghanistan. In addition, U.S. military forces have directly taken custody of persons while carrying out military operations inside Afghanistan. There exist bilateral agreements between and US and Afghan governments on the legitimate operation of the American Military and Civil personnel in Afghan soil . In January 2002 the U.S. government began transferring these persons from the detention facilities in the immediate theatre of conflict to a more permanent detention facility at the U.S. military base in Guantanamo Bay, Cuba. According to Adm. Stufflebeem of the Defence Department on January 28 2002, 482 prisoners were being held by U.S. forces in Afghanistan and at Guantanamo Bay at that time, about one-fifth of whom are Saudi nationals .

Guantanamo Bay "GITMO"

U.S. Naval Base Guantanamo Bay is the oldest U.S. base overseas and the only one in a Communist country. Located on the southeast corner of Cuba, in the Oriente Province, the base is about 400 air miles from Miami, Florida. In December 1903, the United States leased the 45 square miles of land and water for use as a coaling station. A treaty reaffirmed the lease in 1934 granting Cuba and her trading partners free access through the bay, payment of $2,000 in gold per year, equating to $4,085 today, and a requirement that both the U.S. and Cuba must mutually consent to terminate the lease .

International Law and Transfer of Prisoners Between Countries

The U.S. has taken custody of several hundred detainees held by Afghan forces, and has transferred them to its own detention facilities: a U.S. military detention facility located outside Qandahar and detention facilities in off-shore Navy ships such as the USS Peleliu and also Guantanamo Bay. The International Law permits the transfer of detainees between counties. Geneva Convention 1929 was silent on this issue, but during the WWII, ICRC took the view that the captors take the responsibility. Further defining rules are set forth in Geneva Convention 1949 that permit the transfer of POWs to another party to the convention. The issue of transfer to Guantanamo Bay is very complex but it is central to the Bush Administration's strategy to prevent judicial review of the legal status of prisoners. Located on Cuban territory, it is the "legal equivalent of outer space". To qualify for transfer and detention at Camp Delta, Guantanamo, prisoners taken in Afghanistan must meet any one of the following criteria:

· Be a foreign national (non-US citizen);
· Have received training from Al-Qaeda; or
· Be in command of 300 or more personnel

Treatment of Prisoners in an Armed Conflict

1. Geneva Conventions of 1949

Considering United States and Afghanistan parties to the Geneva Conventions, the US attack-invasion starting 11 October 2001 assumed as International conflict. Once considered international conflict, the treatment of detainees in this conflict is governed by international humanitarian law, most relevant the four Geneva Conventions of 1949, to which the United States and Afghanistan, are parties. (Two Additional Protocols to the Geneva Conventions, adopted in 1977, have not been ratified by the United States, but many of their provisions are considered to be indicative of customary international law.)

The United States Government position on the eligibility of Taliban and Al Qaeda forces for the PoW statues is made plain in a passage of statement made by the Press Secretary on 2nd February 2002 which stated that Taliban detainees are not entitled to PoW status, since they have not conducted their operations in accordance with the laws and customs of war. As far as their position on Al Qaeda is concerned, it is more rigid as they are alleged to be an international terrorist group and can not be considered a State Party to the Geneva Convention and its members are not covered by the Geneva, hence not entitled a PoW status under treaty.

However, in a press conference on January 22, Defence Secretary Rumsfeld stated that "whatever one may conclude as to how the Geneva Convention may or may not apply," the United States is treating the detainees humanely.

2. International Covenant on Civil and Political Rights

There are other international legal instruments outside the Geneva Conventions that also affect the treatment of persons during and after tripod (US-Taliban-Al Qaeda) conflict. Article 7 of the International Covenant on Civil and Political Rights, and which the United States ratified in 1992, provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Also the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the UN Standard Minimum Rules on the Treatment of Prisoners to which the United States became a party in 1994, also refers to the legal protection offered to the PoWs and other Combatant.

It is very clear that US government is under immense pressure by the international community to make decision on the faith of those 650 detainees at Guantanamo Bay. By letter dates 12 March 2001, the Inter-American Commission on Human Rights requested the US : ‘Take the urgent measures necessary to have the legal status of the detainees at Guantanamo Bay determined by the competent Tribunal’.

Types and Determination of Prisoners

On 2nd July 2002 the first Secretary at the American Embassy in London wrote to Solicitors acting for the claimants that the United State’s Government believes that individuals detained at Guantanamo are enemy combatants, captured in connection with an on-going armed conflict. They are held in that capacity under the control of the United States’ Military authorities.

Under international humanitarian law, specified categories of captured combatants are entitled to POW status. These categories include members of the armed forces of a party to the conflict, members of militia forces forming part of those armed forces, and inhabitants of a non-occupied territory who take up arms openly to resist the invading forces. As a Government recognized by fundamentalist States such as Pakistan, Saudi Arabia and United Arab Emirates, Taliban were recognized government of Afghanistan and fall under this category.

But there have been different variations on the US government stand. U.S. Secretary of Defence Donald Rumsfeld stated on January 11, 2001 that those held, referring to the Taliban and Al Qaeda detainees, were "unlawful combatants" and that "unlawful combatants do not have any rights under the Geneva Convention. The United States has labelled all persons in its custody captured in Afghanistan (Afghans and non-Afghans) as "unlawful combatants," "battlefield detainees," or "illegal combatants".

Persons not entitled to POW status, including "Unlawful Combatants," are entitled to the protections provided under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War , "nobody in enemy hands can fall outside the law’’ . Third Geneva Convention states: "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy," belong to any of the categories for POWs, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

The convention makes it clear that it is the responsibility of a ‘competent tribunal’ to make judgement whether detainees fall under which categories, hence the Secretary of Defence claim fall short of legal basis.

Rights of Prisoners under International Humanitarian Law

1. Humane Treatment

It was revealed in late April/early May 2003, that US Secretary of State Colin Powell had written a letter to Defence Secretary Donald Rumsfeld complaining of the indefinite detention and lack of progress on the determination of the status of detainees there. It was also revealed that the detainees included also "one 13-year-old, one 14-year-old, two 15-year-olds, one 16-year-old, an 88-year-old, and a 98-year-old" .

It is a pre-request of International Law that POWs must be humanely treated at all times. They must be protected against acts of violence or intimidation and against insults or public curiosity. POWs must be kept in facilities "under conditions as favourable as those for the forces of the Detaining Power in the same area." In particular, "the premises provided for the use of prisoners of war...shall be entirely protected from dampness and adequately heated and lighted."

Though Department of Defence officials stressed that the holding conditions at Guantanamo would be humane and in accordance with the Geneva Convention , the validity of that claim was questioned following release by the Department of Defence of pictures of the detainees at Camp X-Ray.

1.1. Clothing: Article 27, 14 Geneva Convention III 1949 set forth standards for clothing POWs. Their captors must supply prisoners with cloth suiting the climate. The convention allows the use of ‘any’ types of clothing as long as it is of sufficient quality (Art. 27). Despite international criticism on Guantanamo Bay’s inmate clothing (Orange Boiler Suits), the Detaining Power (US) has the right to provide any colour or quality dress as far as it is suiting the climate and are not making the Inmates subject to ridicule.
1.2. Food and Water: The detainees were reportedly well-fed, being provided correct dietary meals, with access to shower and toilet facilities. Water is provided through one 1500-gallon portable tank and four 2000-gallon water bladders.
1.3. Religious Practices: Islamic detainees have the opportunity to pray six times a day and are ministered to by two of the U.S. military's 12 Muslim chaplains. Detainees may freely converse with one another and each has access to a copy of the Koran, if they so choose .
1.4. Housing: Detainees at Camp X-Ray are housed in temporary 8-by-8 units surrounded by wire mesh. They sleep on 4-to-5 inch-thick mattresses with sheets and blankets. The mattresses are on the floor, as is Afghan custom. .
1.5. Medical Facilities: Navy service members began construction in late January 2002 of a temporary medical facility capable of providing medical attention that ranges from dental exams to major surgery. The aim of the hospital was to provide the detainees with medical care similar to that given to US troops.

2. Interrogation

According to the International Law, the Detaining Power may interrogate the detainees, but the POWs are only required to provide their surname, first names, rank, birth date of birth, and their army, regimental, personal or serial number under questioning. No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. We have to realize however that these apply to POWs and not to present status of Taliban or Al Qaeda at Guantanamo Bay. So while nonprivileged or unlawful combatants (Taliban and Al Qaeda) cannot claim the same protections under interrogation as POWs, they are, like all detainees, protected from torture and other cruel, inhuman or degrading treatment as set out under international human rights law and customary international law .

One of the US argument is that treating the detainees as POWs would preclude the interrogation of people alleged to have information about possible future terrorist acts. However the Third Geneva Convention provides that POWs are obliged to give only their name, rank, serial number, and date of birth. Physical coercion is simply not an option. ‘We don't do it’. ‘There's no beating’, Lt. Col. Barry Johnson, a U.S. military spokesman at Guantanamo Bay says . But according 16 Afghans release from the Guanatnamo Bay on July 2003, inmates at Guantanamo Bay have been mistreated. According to Abdul Rehman, 29, from Faryab province in northeastern Afghanistan. "They pushed us all over, treated us very badly. They put 24 of us in a small congested room. They also put us into cold rooms. "

3. Prosecution

While POWs cannot be tried or punished simply for their participation in the armed conflict, they may be prosecuted for war crimes and crimes against humanity and for common crimes under the laws of the detaining power or international law. As Article 115 of the Third Geneva Convention explains: ‘POWs detained in connection with criminal prosecutions are entitled to be repatriated only if the Detaining Power agrees’. ‘…a distinction between the armed forces and peaceful populations of belligerent nations and also between those who are lawful combatants and unlawful combatants should be drawn’


3.1. Odah et al. v. United States of America al
On 19th February 2002 three prisoners detained at Guantanamo Bay, two British and one Australian commenced a civil action in the district court of Columbia . They petitioned for a writ of habeas corpus. The Government moved to dismiss the action for want of jurisdiction. A similar motion was brought to dismiss an action brought by relatives of ten Koreans, who were also detained at Guantanamo Bay, the petitioners sought an order that the detainees be informed of the charges, if any against them, be permitted to consult with counsel and have access to a court or other impartial tribunal. The court treated this as an application for habeas corpus. After hearing arguments the Court ruled that the military base at Guantanamo Bay was outsides the sovereign territory of United States and that in consequence of this fact and the fact that claimants were aliens, the court had no jurisdiction to entertain their claims.

3.2. Eisentrager v. Forrestal (1949)
The relevancy of this case is to the Majority decision of the Supreme court in Eisentrager v. Forrestal (1949) this case concerned German citizens who had been convicted of espionage by a US military commission after surrender of Germans by the end of WWII and repatriated to the Landsberg Prison to serve their sentences. The prison was under United States control. The Prisoners petitioned for writs of habeas corpus. Justice Robert Jackson held that a court was unable to extend the writs of habeas corpus to aliens held outside the United States.


President Issues Military Order George W. Bush The White House, November 13, 2001

This order is an intense response to the atrocities of 9/11 which cites the detention, treatment and trial of ‘non citizens’ in the war against terrorism. The order stipulates that it applies to any individuals who is not a US citizen with respect to whom the US President has determined in writing that there are reasons to believe 1) The such individuals is a member of Al Qaeda. 2) That he was engaged in international terrorism. 3) That it is in the interest of United States that he should be subjected to the order. The order provides that any such individual will be detained at an appropriate location and treated humanely. It provides that any individual ‘when tried’ will be tried by a Military Commission.

Military Commissions:

It is taught that the U.S. military order and instructions are inconsistent with provisions of the 1949 Geneva Conventions relating to the prosecution of prisoners of war (POWs). Under the Third Geneva Convention, a POW can be validly sentenced only if tried by "the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power," and "shall have, in the same manner as the members of the armed forces of the Detaining Power, the right of appeal or petition from any sentence pronounced upon him."

Al Qaeda Detainees:

Despite that Al Qaeda operatives meet some categories as members of irregular force: 1) organized resistance movements, 2) belonging to a Party to the conflict, 3) operating in or outside their own territory, 4) under responsible command, 5) had a fixed distinctive sign recognizable at a distance; and 6) carry their arms openly, the very controversy over their eligibility for the POW status raised when it comes to their conduct of war according to the Laws and Customs of War (Carrying out 9/11, US embassy bombing in Kenya etc). Legally their intend to kill civilians and other military and terror operations strips them off their right as legal combatants.

Afghan Detainees:

US Government claim that even members of the Taliban's armed forces should not be entitled to POW status because the Taliban was not recognized as the legitimate government of Afghanistan is a matter which needs to elaborated. A determination must be made on an individual basis by a competent tribunal e.g. Afghan Taliban detainees. As Article 4(A)(3) (‘Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power) of the Third Geneva Convention makes clear, recognition of a government is irrelevant to the determination of POW status. The four-part test of Article 4(A)(2) applies only to militia operating independently of a government's armed forces, not to members of a recognized (Article 4(A)(1)) or unrecognized (Article 4(A)(3)) government's armed forces. Hence Afghan Taliban forces fall under the this category.

This reading is also consistent with past U.S. practice. During the Korean War, the United States treated captured Communist Chinese troops as POWs even though at the time the United States (and the United Nations) recognized Taipei rather than Beijing as the legitimate government of China.

Conclusion:

The Statues of Taliban and Al Qaeda either in US or Afghan detention is unclear, it is unclear precisely how long these authorities intend to hold them or whether they intend to bring charges against them before a military court or Tribunal. Detained Afghan Taliban soldiers (members of the regular armed forces of the then-government of Afghanistan) should have been designated by the United States as POWs under the Third Geneva Convention. Sofar they have no access to a court to clarify that legitimacy of their continued detention, even to the extend they are individuals whom Presidential decree applies.

The US chosen to place non-US citizens in a different position from US ones. It is an open question whether US citizens challenge will ultimately be successful, but they have had and do have access to the courts in the US. Non-US citizen are detained in a place over which US has de facto control, but from which the detainees has no ability to test the legality of their detention. Indeed the presidential decree purports to deprive the detainees of the right to go to any courts. ‘’They are in Legal black hole ’’

After all the arguments, one needs to keep in mind that the criminal justice and legal systems in Afghanistan is basically non-existing. Afghanistan simply lacks the means and capacity to prosecute the detainees at its captivity leave alone those who has been or supposed to be returned from Guantanamo Bay. International community need to help Afghanistan build up its legal system from scratch, however this would take very long time and as an urgent solution is needed other alternatives to be sought. One viable option is the commencement of International Criminal Tribunal for Afghanistan. This tribunal can be a quick fix to the atrocities committed starting mid 90s. The International Tribunal can refer to the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, adopted on 8 June 1977 to clarify the definition of war crimes in Afghanistan. It should have the power to prosecute persons responsible for serious violations of international humanitarian law committed in the territory of Afghanistan since Taliban came into power in late September 1996 and be expanded to cover the atrocities of last decades.