American action is unlawful, say legal experts

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The Independent US

The international legal community rounded on the United States administration, accusing it of flagrant human rights abuses in its treatment of Taliban and al-Qa'ida prisoners.

British lawyers were particularly vociferous in their condemnation of the US policy of detention without trial pursued by President George Bush and his Secretary of Defence, Donald Rumsfeld.

Michael Mansfield QC said that if there was no evidence linking the suspects to the 11 September attacks, they should be treated as soldiers and repatriated to Afghanistan.

"The status of unlawful combatants that the US has given to them is not recognised in law," he said. "They can be categorised so that they are either people engaged in war against the invasion of Afghanistan or they are suspects linked to the conspiracy surrounding 11 September." To take neither course, Mr Mansfield warned, would be a breach of the Geneva Convention.

Prisoners at Guantanamo Bay, who were sedated and chained for their flight from Afghanistan, have since been shaved and are being held in cages open to the elements.

Stephen Solley QC, chairman of the Bar's human rights committee, said the treatment of the suspects was "so far removed from human rights norms that it [was] difficult to comprehend". He said even the Nuremberg trials of Nazi war criminals more than 50 years ago were conducted with some dignity, and access to lawyers had not been an issue.

Lord Lester of Herne Hill, who assisted in the incorporation of the European Convention on Human Rights into domestic law, said the detention of the suspects was a clear breach of the International Covenant on Civil and Political Rights, to which the US is bound. As well as forbidding inhuman or degrading treatment or punishment the Covenant creates the right to a fair trial, which Lord Lester said the suspects were being denied.

The proposed military tribunals would be heard in private and did not satisfy international rules, he said.

"Providing there is a prima facie case to answer then I see no reason why any of the suspects, including those who are British, could not be tried by a US federal court, although there would be some concern over the issue of capital punishment. I have more faith in the US judges than Mr Rumsfeld seems to have."

Mr Mansfield urged the US to consider asking the United Nations to help set up an ad hoc court, along the lines of the one in The Hague where Balkan war crimes suspects are being tried. Stephen Jakobi, director of Fair Trials Abroad, suggested the Lockerbie model, by which the court would be based in a neutral country under US law at a tribunal comprising federal judges chaired by a Supreme Court Justice.