Pouting over POWs
by John Thompson
January 18, 2002
What to do with an al-Qaeda prisoner? Are they legitimate prisoners of war or detained "illegal combatants"? The Red Cross and Amnesty International have challenged the status of the US prisoners in Guantanamo Bay, and insist that they are Prisoners of War.
Ottawa, having finally placed our troops into a position where they might capture armed members of al-Qaeda and Taliban says it would depart from US practices, and treat any captives as Prisoners of War. Notwithstanding the superb legacy of the Red Cross and Amnesty International, both groups are wrong. So is Ottawa.
The laws of war and the Geneva Conventions are a Western tradition. Their roots are in Canon Law of the Church and the works of the 16th Century Dutch legalist Hugo Grotius, particularly in his 1625 work "De jure belli et pacis." These were expanded on in the 19th Century, particularly by the Red Cross, the Americans and the Russians — who organized the first of the Hague Conventions in 1899.
These agreements culminated in the 1949 Geneva Conventions that clearly articulated the rights of prisoners of war and those of captured guerrillas and other informal combatants. It is a good clear set of simple rules that respect the rights of non-combatants, including POWs, downed airmen and wrecked sailors. The Western Nations remain largely faithful to these laws, although this is not so true elsewhere.
The protections of the Conventions apply to members of the Armed Forces of an enemy nation-state, or to volunteer corps of civilians of the same. Militias and irregular forces are protected if they are commanded by a person responsible for his subordinates; have fixed and identifiable signs that are recognizable at a distance; carry their arms openly; and conduct their operations in accordance with the laws of war. The al-Qaeda doesn’t have a responsible leader, are quite irregular in appearance, hold no truck with Western laws of war and display little regard for the Islamic ones too.
The Taliban guerrillas might arguably come under the Geneva conventions -- even if they didn’t have ID cards (the 1949 Convention prefers that Guerrillas have them). Even the fact that no nations besides Saudi Arabia and Pakistan recognized the Taliban as the government of the "Emirate of Afghanistan" should not be grounds for denying them status as POWs; and if the Taliban had little interest in observing the laws of war, they weren’t the only Afghan party to behave this way.
Members of al-Qaeda are different. First, terror networks like the al-Qaeda operate outside the laws of war and rules of conflict that characterize "war" as most nations and people understand it. Warfare is supposed to be about recognizable armed forces engaging in open combat with other armed forces, and under clear political direction as they do so. Terrorists aren’t recognizable, answer to no government or responsible political authority, and regard embassies, marketplaces, airliners and office towers as "military targets".
Terrorism, when internal to a particular nation, is a criminal matter for the police and courts. Terrorism, on the scale that al-Qaeda practices, is beyond this and falls in the wide gap between internal law and warfare between nations. International law and custom for dealing with threats like this is weak, flawed and underdeveloped. Terrorists recognize no rules but their own, and in a vacuum like this, nation states are often left to their own devices in seeing to the protection of their citizens.
Wars eventually end, and prisoners of war are supposed to be repatriated. To whom would we return members of Al-Qaeda? Many of them are hard to identify, and some of them can’t be repatriated as they might well be either lynched or lionized by their home governments. Also, when is the threat that Islamic Fundamentalists present to us going to end? Ten years from now? Twenty? Never?
This leads to the other problem with Al-Qaeda prisoners in American hands. The last time Western nations had to deal with prisoners who were this intractable, they were from the Waffen SS. But when Hitler shot himself and the Third Reich collapsed, the war was demonstrably over and many of the SS knew it. It was safe, more or less, to send them home. The ideology that the Al-Qaeda represents is far from being defeated, and its members will be a danger to their captors and to us for a long time to come. They don’t merit the status of Prisoners of War, and it would be hazardous to give it to them.
John Thompson is President of the Mackenzie Institute which studies political instability and terrorism. He can be reached at: mackenzieinstitute@bellnet.ca
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