Violating
international law
Mutua
calls detainment of Taliban in Cuba "jungle justice"
By
CHRISTINE VIDAL
Contributing Editor
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 UB.
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"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 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 binds 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.
wasand still iswaging 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.