The US government has only itself to blame for the international row about the 100-plus prisoners being held in extremely basic conditions at Guantanamo Bay in Cuba. There is a serious case for parts of what the United States is doing to the al-Qa'ida suspects – but not for all of it, and not for the incompetent way in which it has been presented and implemented.
Last Tuesday the US Secretary of Defense, Donald Rumsfeld, said: "I do not feel even the slightest concern over their treatment. They are being treated vastly better than they treated anybody else." This remark reveals a failure to understand why international standards in the treatment of prisoners are important. It is not just for the sake of the prisoners concerned, but also because observance of international standards generally, and the coalition cause, may be in jeopardy if the US ignores basic norms.
Critics of the US have properly asserted the importance of maintaining international standards. However, those who have argued that all the prisoners must be treated in full conformity with all the provisions of the 1949 Geneva Prisoner of War Convention may be letting their own self-righteousness take precedence over understanding a peculiarly tangled situation.
The US, Afghanistan and virtually all states are parties to the 1949 Geneva Convention III, on prisoners of war. Article 2 says that the convention applies to "all cases of declared war or of any other armed conflict ... between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them". So the existence of a formal state of war – an issue much discussed in the media – is not necessary for application of the convention.
Even so, the convention is particularly hard to apply in respect of anti-terrorist operations. This is because Article 4 spells out who is entitled to prisoner-of-war status, and it is not obvious that the prisoners held in Camp X-ray meet these criteria. Lawful combatants, entitled to PoW status, comprise the organised armed forces of a state. They also include "members of other militias and members of other volunteer corps, including those of organised resistance movements, belonging to a party to the conflict", provided they fulfil certain conditions: there must be a command structure, arms must be carried openly, and operations must be conducted in accord with the laws of war. Even if members of regular armed forces are under a regime that is not recognised as the lawful government of the state, they qualify for PoW status.
It might be possible to argue on behalf of certain Taliban prisoners that they meet these criteria. It would be much more difficult in the case of al-Qa'ida prisoners. For example, al-Qa'ida is not a state, its command structure is unclear, and it has not exactly conducted operations in accord with the law.
How is it decided who is an unlawful combatant, not entitled to PoW status? Article 5 of the Geneva Convention provides that, in cases of doubt, prisoners shall be treated as PoWs "until such time as their status has been determined by a competent tribunal". This article does not specify the nature of the "competent tribunal", but the Pentagon has a regular procedure for it. The United States' failure to follow this obvious and simple procedure is typical of its cavalier attitude in this crisis.
Two types of consideration have contributed to the US determination not to classify prisoners as PoWs. The first relates to the form of detention of prisoners, and the second to the conduct of trials. On the form of detention, the US wants to hold prisoners in a different way from that envisaged in Geneva Convention III. It is concerned about the danger to its own guards from these dangerous individuals. In addition, it naturally wants more than the standard name, rank, date of birth and number.
As for trials, the US is reluctant to pursue the procedure laid down in the convention, which specifies that any sentence of a PoW must be "by the same courts according to the same procedure as in the case of members of the armed forces of the detaining power". There is concern that, in cases where evidence is based on intelligence sources, it might not meet the standards required in normal US military courts.
The fact that certain prisoners may be denied PoW status does not mean that no standards of protection apply to them. Their treatment should reflect basic safeguards that they would have if they were prisoners of war. Asked whether the Red Cross would have any access to the prisoners who had just been taken to the US naval base at Guantanamo Bay, Mr Rumsfeld replied: "They will be handled not as prisoners of war, because they're not, but as unlawful combatants. The, as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention. We have indicated that we plan to ... treat them in a manner that is reasonably consistent with the Geneva Conventions, to the extent they are appropriate."
Mr Rumsfeld was wrong to say that these prisoners had no rights under the convention. However, he was right to suggest that it should be possible to treat the prisoners in a manner consistent with it. The approach needs to be stated clearly, from the top, without equivocation or dismissiveness. Certain policies, such as the compulsory shaving of beards, are contrary to the convention and should be stopped.
There are many precedents for applying the laws of war even in circumstances that differ significantly from the criteria laid down in the treaties. In the UK it was decided in 1972 to end the torture of detainees in Northern Ireland and to apply international standards, even though this was an internal conflict and the detainees were not prisoners of war. As for the US, it has repeatedly voted in the UN Security Council for observance of the Geneva Conventions even in conflicts, such as civil wars, to which their full application is debatable: it did so on a resolution on Afghanistan on 28 August 1998.
The US-led coalition against terrorism depends on a moral distinction between terrorists and their adversaries. The international co-operation that it embodies has been crucial in providing intelligence about terrorists, and in leading to the arrests of suspects. All this will be jeopardised if the US is seen to ride roughshod over international standards in the treatment of prisoners.
If the US allows the impression to grow that it cares little about international standards on prisoners, it risks encouraging a general lowering of standards. In 1999, three US soldiers were arrested by Serbian forces during the Nato war over Kosovo. The US immediately, and rightly, demanded that they be treated as PoWs – even though they did not meet all of the normal criteria. It was successful then, but how sure can we be that after Guantanamo an adversary holding US prisoners will not reject such US pleas?
The American approach to the prisoner issue needs a firm, prompt response from its allies. They are as dismayed by its conduct in this matter as its adversaries must be delighted. Britain is in a unique position both to show understanding of the US and to press for changes. It must urge that the defensible aspects of this policy be better explained and that the indefensible aspects be changed. The demand should be for proper procedures to determine the status of each prisoner; for the conditions of detention to be improved; and for credible guarantees of fair trial. Above all the US must be advised by its friends to show more respect for international standards and the decent opinion of mankind.
Adam Roberts is Montague Burton Professor of International Relations at Oxford University. He is co-editor (with Richard Guelff) of 'Documents on the Laws of War' (Oxford University Press)Reuse content