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The war on terrorism and the most recent war in Iraq have raised many questions about the "rights" of terrorists and prisoners of war (POWs). After reading the following excerpt and the exploring the Web sites, assess the situation surrounding the rights of our enemies and answer the questions below.
Since the release of the now infamous photos of naked Iraqi prisoners in humiliating poses guarded by U.S. soldiers and the media attention surrounding the conditions at Guantánamo Bay, the international media have been saturated with sharp criticism and pungent commentaries that have raised important questions about the treatment of prisoners of war.
The status and treatment of prisoners of war as well as what constitutes a POW has long been a hotly discussed topic in international circles. In line with the Universal Declaration of Human Rights (UDHR), the international community passed into law the Geneva Conventions. They were adopted on August 12, 1949, and entered into force on October 21, 1950. The four Geneva Conventions address concerns of international humanitarian law. Special emphasis was given to the treatment of members of the military, civilians, and prisoners in times of war. The Conventions, also known as the laws of war, include two additional protocols setting out a comprehensive legal framework aimed at protecting captured combatants and civilians during war, detailed specifically in the Third Geneva Convention (relative to the Treatment of Prisoners of War). Some important and relevant excerpts from this convention include:
Under international humanitarian law, combatants captured during an international armed conflict should be presumed to be POWs until determined otherwise. Persons who do not fall under this 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. In short, all detainees legally fall somewhere within the protections of these two conventions. Nevertheless, the rights of POWs vary significantly from those of so-called unlawful or non-privileged combatants. POWs may be interrogated, but they are only required to provide their surnames, first names, rank, date of birth, and their army, regimental, personal, or serial number under questioning. Unlawful or non-privileged combatants cannot claim these same interrogation protections. Regardless of these differences, both POWs and unlawful combatants are protected from torture and other cruel, inhumane, or degrading treatment as set out under international human rights law.
While captured Iraqis clearly fall under prisoner of war status, the captured al Qaeda terrorists have presented a different sort of problem. Under a presidential directive announced in February 2002, the U.S. government determined that Taliban "soldiers" would be afforded the full protection of the Geneva Conventions but would be classified as "unlawful combatants," not POWs. But the al Qaeda fighters and other suspected terrorists would not be designated as "unlawful combatants" covered by the conventions, meaning that the rights guaranteed in it would not apply to them.
Since that presidential directive, however, several important judicial rulings have come out in favor of the rule of law even for our enemies. In 2004 the U.S. Supreme Court ruled that Guantánamo Bay detainees are entitled to a "competent tribunal" to decide whether they are indeed enemy combatants, as well as the chance to contest the charges against them; further, the Court ruled that the prisoners have access to U.S. courts even though they are technically imprisoned outside the United States. Further, in September 2005 three federal appellate court judges expressed doubts about the government's assertion that hundreds of foreign nationals imprisoned indefinitely at a U.S. military base in Cuba have no right to challenge their detention in U.S. courts. The judges also questioned the government's argument that U.S. courts have no right to review military decisions on enemy combatants. Then in June 2006, in a 5-3 vote, the Supreme Court rejected President Bush's plan to hold military tribunals for foreign terrorists. The justices said Bush's plan, which would not allow a detainee to see all the evidence against him or attend all court hearings in his case,—lacked sufficient protections for detainees without Congressional authorizations. The court said the plan violated the U.S. Military Code of Justice and the Geneva Conventions dealing with prisoners of war.
The rights of our enemies, particularly when it comes to the war are terror, are being debated by all three branches of the U.S. government. The underlying tension here is between national security and basic human rights. How can liberty and the rule of law be reconciled with the immediate security demands of the country? This debate will continue to rage for years to come as it has important and lasting implications for the international community (and domestic politics), particularly as we continue to face unconventional threats to security, such as international terrorism.
