Release Date: January 24, 2002
BUFFALO, N.Y. -- The detainment in Cuba of members of the Taliban and those suspected of being part of al Qaeda is questionable at best and probably illegal under the Geneva Conventions, according to an internationally known expert in human rights at the University at Buffalo.
"The U.S. cannot unlawfully project its police power onto other states, capture individuals and subject them to 'jungle justice' simply because it is a superpower," said Makau Mutua, professor in the UB Law School. "This is lawless conduct and strikes an almost fatal blow at humanity and its decency."
The Geneva Conventions are customary international law that bind all nations, including the U.S. They define in precise language what states can, and cannot, do with regard to the conduct of war, he said.
"The use of the terms 'battlefield detainees' or 'unlawful combatants' by the Pentagon is vacuous, evasive and intended to circumvent the application of the Geneva Conventions to the men being held in Cuba by the United States," Mutua said.
"The U.S. was -- and still is -- waging war against Afghanistan. Therefore, any Taliban or al Qaeda combatants captured by the U.S. clearly are prisoners of war. Prisoners of war are defined by the Geneva Conventions as any opposing combatants. They are identified as such if they fight within a structured command or are identifiable through some insignia, uniform or other distinguishing characteristics," according to Mutua.
"Both the Taliban and al Qaeda fighters fit these descriptions. Indeed, the U.S. itself has had no problem identifying them as enemy soldiers. So, clearly the question of identification is not at issue."
But the Pentagon thinks that it can deny them rights that are due to prisoners of war by mislabeling them, Mutua said.
"It is deceitful for the U.S. to seek to circumvent the law in this manner. There probably is no crime with which these men legally can be charged. What is their crime? Fighting against the U.S. in their own country, or at the invitation of the government of Afghanistan? Even if one wanted to charge them with the war crime of killing civilians in the Sept. 11 attacks, it is not clear such a charge would make sense. Did the detainees plan the attacks and execute them, assuming that one even could prove in a court of law that Osama bin Laden authored the attacks? Perhaps they could be court-martialed as the fighters of a vanquished foe.
"While the U.S. has a right and responsibility to defend itself and the people within its borders, it must do so lawfully, humanely and with restraint," Mutua said.
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