What to do with captured Taliban?

Columnist Col (Retd) EAS BOKHARI examines what to do with the prisoners taken by the US.

Currently a number of captured Taliban and al-Qaeda prisoners are being taken to a military detention camp at Guantanamo Bay. This detention site — Camp x-Ray is being controlled by us, Army Lt. Gen. BB Bell who commands Fort Hood Texas. It appears that Pentagon has plans to build some 2000 cells in this site and according to GOC Fort Hood “...This will be a big deal down there for at least two years...”

The intriguing part of this whole exercise is that these poor souls who are confined to 1.8m by 2.4m chained link enclosures with concrete floors are unlikely to be left off so easily by the US authorities. In any case they will not be meted out the treatment given to the Prisoners of War as stipulated in the law of war and Geneva Conventions 1949 which in fact is the reworking of the Islamic Law of War/ International Humanitarian Law. Under the Islamic Law — a POW needs maximum empathy and consideration and one of the greatest human virtues is to release such a captive from bondage.

It is almost certain — not withstanding any special US Law specially enacted — that the Taliban captive are not going to get the stipulated POW treatment. It is, unfortunate, that the Geneva Conventions could never visualize events like a horrendous assault at the Trade Towers and Pentagon which, it is alleged, was engineered by the “hardest of the hard core” Talibans where dozens of dozen people were killed, and if that is construed as war, then its perpetrators need a special treatment and not the more civilized handling of the POWs. It is to be noted that many a POW is not a willing participant in the mayhem of war, and is forced into it due to his obedience and discipline requirements of the armed forces. He just obeys what he is told to do. This is cardinal to all armies.

It appears that the ICRC (International Committee of Red Cross — Geneva) must be feeling very uncomfortable about it, and some European countries have already voiced that the wretched lot in Guantanamo should be considered as POWs. The Pentagon, however, vehemently resists this and prefers to call these personnel as ‘unlawful combatants’ or ‘battlefield detainees’ and therefore, they are a special sort of species and are being detained (for an unspecified period — and not three months — as is the case for normal POWs), for the conduct of further investigations and to stop them from indulging in more acts of terrorism.

Another point which Pentagon makes is that Taliban was loose knit Army with no clear chain of command or a recognized government, and hence these people cannot be given the status of a POW which is well defined in the Geneva Conventions pertaining to regular soldiers.

The American Defence Secretary has opined that these detainees may expect to be treated in the following four ways:

• Face a military trial.

• Face a trial in the US criminal courts.

• Return to their home prosecution there and,

• Face continued detention for gathering of additional intelligence in their case.

All this appears to be very complicated and according to ‘Economist’ this “would put America, preeminently a nation of laws — itself outside the law.”

Amnesty International has been more pragmatic and has pointed out that under the Geneva Conventions the Pentagon has no rights and business making such a determination. Those who fall into the enemy’s hands are entitled to POW status until a competent tribunal has determined their status. In the case of those in Guantanamo that hasn’t happened.

I have with me a CRS (Congressional Research Service) Report for the Congress updated Dec 11, 2001 on the subject which is both exhaustive, illuminating and well documented which advocates the US stance. The document is entitled ‘Terrorism and the Law of War: Trying Terrorists as War Criminals before Military Commissions.’ This has been prepared by Jennifer Elsea Legislative Attorney- American Law Division. Its order Code No is RL-31191.

While discussing the issue and providing its background the position is explained as below:

“Some observers have expressed concern that treating terrorist acts as acts of war may legitimize the acts as a lawful use of force and elevate the status of the perpetrators and terrorist networks to that of legitimate state actors and lawful combatants... However, it may be argued that an application of the Law of War to terrorism does not imply lawfulness of the conflict, nor does it imply that the perpetrators are not criminals... Terrorists are not members of armed forces for the purpose of the Law of War and do not, by definition, conduct themselves as lawful combatants. Under this view, those who participate directly in unlawful acts of war, including those with command influence, may be treated as war criminals and if captured, are not entitled to prisoner of war (POW) status under the Geneva Conventions... As suspected war criminals, they may be tried by any nation in its national courts or by military commission convened by one nation or many....

And further elucidating the point ... “under the terms of the President’s Military Order of November 13, the President

(of USA) has the option to order the trial of accused terrorists, whether captured overseas or on US territory, by military commission. It is argued by some that it would be unworkable, for instance, to try Osama bin Laden in federal court under established rules of procedure and evidence.... A public trial, some argue, could be used to the terrorists advantage by allowing them to force the government to release sensitive information....”

To continue with the argument “...A trial of suspected terrorists could also become an ‘International Media Circus’ — raising possible concerns for the safety of judge and jurors. “I am not a jurist and least of all a lawman and I am sure such an exercise would become a terribly lengthy affair subject to multiple appeals during which a conviction could be overturned on technicality.

It might also be impossible to empanel an impartial jury anywhere within the United States as some observers have argued.

And then some observers “have expressed concern that invoking the Law of War against terrorists could lead to the use of a similar approach to combat other societal ills upon which theoretical ‘wars’ might be declared. This tactic, they argue, could allow the government to establish military tribunals to try drug dealers, for example, without ordinary due process of law. Other opponents of using military commissions argue that secret trials could deny due process and that the resulting verdicts would lack legitimacy in the eyes of the international community.”

The legal profile of the terrorist is becoming still more difficult to define as there is hardly any agreed definition of the term ‘terrorist’ and in the common usage such practitioners as militants, freedom fighters, and jihadis — all are dubbed as terrorists. It is time that an internationally accepted  ‘definition’ of the term terrorists is postulated.

And finally the post-modern terrorist is much better equipped and tailored for his state of the art operation — some being extremely novel and imaginative which the designers of the Law of War could hardly imagine. A modern terrorist may have a direct resort to technologies such as advance laser, radar and the use of weapons of mass destruction (WMD) et al. This spells societal doom

For all its flouting and disgrace, the Law of War or the International Humanitarian Law is very simple and straightforward. The law is empathy oriented and even the worst conditions of fighting that may have preceded, the law shows consideration and benevolence. In a few words its essence can be summed up humanitarian as below:

• Hospitals shall be immunized and be marked by special flags with indentifying colours for each army.

• The wounded and sick shall not be regarded as prisoners of war; they shall be cared for like the soldiers of the army which captured them and sent home after they are cured.

• Doctors and their assistants and chaplains shall not be taken as captives and shall be returned to their sides.  exchanged without ransom.

• The lives of prisoners of war shall be protected and they shall be exchanged without ransom.

• The peaceful civilian population shall not be molested.

The above stipulations appear to be a common feature of all fighting since time immemorial and a brief evolution of the law of war may be found in the paragraphs that follow:

And then there has been thinkers like Jean Jacques Rousseau who expressed himself as follows in his famous “The Social Contract”.

“War is not a relation between man and man, but between State and State, and individuals are enemies only accidentally, not as men or even as citizens, but as soldiers; not as members of their country, but as its defenders....

The object of the war being the destruction of the hostile State (See Calueswitz below), the other side has a right to kill the defenders while they are bearing arms, but as soon as they lay them down and surrender they cease to be enemies or instruments of the enemy, and become once more merely men, whose lives no one has the right to take.

War according to Calusewitz, the great theoretician of war, is continuance of national policies by other means. These ‘other’ means have never been humanitarian and are invariably brutal. With the invention and use of weapons of mass destruction (WMD), brutality has achieved much greater heights.

It is interesting to study some of the earlier facets of war fighting which indicate that war fighting had been a curious “mixture of compassion, and cruelty, delicacy and savagery, good faith and treachery, idealism and depravity, which were the attributes of chivalry”.

The object of this short presentation is to show how Islam had humanized war fighting and how some of the edicts of Islam form the basis of modern principles of International Humanitarian Law, which has evolved over a period of time.

The evolution of weapons surely has something to do with this crystallization of the humanitarian law. Take the example of archers, who in terms of chivalry could not be rated equal to a nobleman or a knight with his glittering armour. For that matter the invention and use of gunpowder was considered as the work of devils as it nearly democraticised warfighting. This was perhaps the end of chivalry as all men were equal when projectiles with gunpowder were used.

All the same there is evidence that in the Middle Ages “Islam took the lead over Christianity in the legal efforts to restore their human personality to the barbarians, slaves included”. The counsels of moderation in the Holy Book applied to the believers and the just war for Muslims was Jehad, which literally means ‘common effort’ and not a holy war, as is wrongly inferred.

“...This also was tempered by a spirit of chivalry, manifested notably by the rights to asylum and hospitality. Prisoners of war could be executed or reduced to slavery, unless either they were converted or ransomed... The Viqayet, written around the year 1280, is a veritable code of laws of war, as seen at the peak of the Moorish reign in Spain. It forbids the killing of women, children, old people, mad men, the sick and the bearers of the flags of truce. It also forbids mutilation of the vanquished and the poisoning of arrows and of water sources....”

The Crusades is a classical example of brutality and benevolence, which somehow existed side by side. “The Crusades cost the lives of millions of human beings... Both sides perpetrated abominable massacres, from which they finally gained nothing...” The Christians committed unspeakable crimes and sowed hatred and desolation. They, in fact, created a breech between the East and West, which has not yet been repaired.

An eye witness Raymond d’ Agiles, Canon of Puy wrote: “...So much blood flowed in the ancient temple of Solomon, where 10,000 Muslims had taken refuge, that bodies were floating in it, drifting this way and that in the court, together with knocked off hands and arms.” Yet another witness said that the blood was knee-deep.

The Muslims were more human and “as a striking contrast, when Salahad-Din, known as Saladin to the Crusaders, entered Jerusalem, his Saracen troops did not kill nor mistreat a single one of its inhabitants. To make sure of this, Saladin had established special patrols to protect the Christians. He then released rich prisoners for ransom and the poor prisoners for nothing... Saladin also allowed doctors from the enemy side to come and treat their wounded compatriots and then return to their own camp... He sent his own doctor to the bedside of Richard Coeur de Lion, who subsequently showed his appreciation by the cold blooded murder of the 2700 survivors of the Siege of Saint Jean d’ Acre including the women and children.”

Perhaps the worst example of carnage was the sacking of Constantinople by the venetians and the Crusaders in 1204. This time both the butchers and the victims were Christians. “For nine centuries this city had been the heart of the civilization and Christian religion of the Eastern Empire. The papal legate had relieved the knights of their vows and the massacre lasted three days. Nothing and nobody was spared neither the churches nor the nuns... Such is the war when the pretext for violence is faith and justice”.

It is interesting to study the Arab history and Islamic traditions which are humane and just in this respect. The edicts almost affirm the present humanitarian law and urge the people to abide by rules of mutual respect and fairness at times of war. The Arab traditions restrict the use of force to the combatants engaged in the battle and bans its use against civilians or wounded combatants who have been neutralized by their wounds and cannot effectively participate in war. Quoting from a handout by the ICRC (International Committee of the Red Cross, Geneva) “One could even conclude that the law of Islam was one of the sources that has contributed to the cultural heritage from which international humanitarian law derived its principles and ideals.” Some examples of the Islamic compassion and benevolence are cited in the paragraphs that follow:

Wars in Islam were to be characterized by compassion and moral excellence. In the words of the Holy Prophet (Allah’s prayers and peace be upon him) had enjoined the military commanders to “set off in Allah’s name and with his Prophet’s blessings. Do not kill any gaunt old men, or small children or women, and do not be treacherous but rather be just and charitable, for Allah loves the doers of good”....

The Islamic canons as enunciated by Malik and al-Awazi are still more explicit. These are: Under no circumstances should the women and children of the enemy be killed even though they be used as shields by the warrior....”          

Here is an interpretation of the Holy Quran from Imran Fakhral Din Al-Razi culled from his book Mufatih al Ghayh “The human spirit is the most noble spirit in this world and the human body is the most noble body in this world....”

Islamic benevolence is the theme of one of the counsels of Ali Ibn Abi Talib to his soldiers (See Sharh Nahj al-Balagha by Ibn Abi Hadid). Here it is:

“...If you are victorious over them, do not stab them in the back: Do not kill the wounded or uncover their genitals. Do not mutilate the dead; Do not tear a veil: Do not enter a house without permission: Do not take any of their belongings and do not harass the women, even if they curse you or your emirs: and invoke Allah to deserve His mercy.”

And yet another classical and proverbial generosity of Sultan Salahud Din Ayubi is worth paying attention to. The following para has been taken from al-Nawadir al- Sultaniya wa al Mahasin al Yusufia by Baha’al Din lbn Shaddad. ...And when the victory and triumph had been granted to him by Allah, the Sultan Salahudin Ayubi sat where his tent was to be pitched and people came to him with the prisoners and with the officers they had found among them.

Then the tent was pitched and he sat, happy and thankful for the blessings Allah had granted him. He then sent for King Geoffrey, his brother and Prince Arnaut, and offered King Geoffrey some rose water and ice to quench his thirst. 

Such were the courteous customs and generous nature of the Arabs that they considered a prisoner safe if he ate and drank from the provisions of whoever had captured him. And the Sultan sticked to this code of ethics.”

Coming back to the issue to hand and the US manipulation of the event, it will be good to understand its underpinnings. These are — again from the CRS Report to the Congress mentioned earlier on:

“On November 13, 2001, President Bush signed a Military Order pertaining to the detention, treatment and trial of certain non-citizens as part of the war against terrorism. This order makes clear that the President views the crises that began on the morning of September 11, 2001 as an attack ‘on a scale that has created a state of armed conflict that requires the use of the United States Armed Forces’. The order finds that the effective conduct of military operations and prevention of military attacks make it necessary to detain certain non-citizens and if necessary to try them’ for violations of laws of war and other applicable laws by military tribunals’.

The September 11attacks clearly violated numerous laws and may be prosecuted as criminal acts, as past terrorist acts have been prosecuted in the United States. ...The unprecedented nature of the September attacks and the magnitude of the damage and the loss of life they caused have led a number of officials and commentators to assert that the acts are not just criminal acts, they are ‘acts of war.’ The President’s Order makes it apparent that he plans to treat the attacks as acts of war rather than criminal acts... The distinction may have more than rhetorical significance. Treating the attacks as violations of the international law of war could allow the United States  to prosecute those responsible as war criminals, trying them by special military commission than in federal courts....”

The same source continues (at another place) that a review of legal precedents indicates that the authority of the Commander in Chief to try war criminals in occupied territory is well settled. Similarly, there is substantial precedent for establishing military tribunals to try enemy belligerents who are charged with violating the law of war, especially individuals captured overseas... Determining who qualifies as an ‘enemy belligerents’ for acts committed on US territory, however would likely present greater constitutional difficulties. The President’s order appears  to be broader than authority cited by previous Presidents and may cover aliens in the United States legally who are citizens of countries with which the nation is in peace. It may also be seen as conflicting with certain acts of Congress.

It is perhaps too early to make any incisive assessment of the President’s order which appears to circumvent the International Humanitarian Law to suit the peculiar requirement of the real US interests and forego the humanitarian side of the law of war.

On the whole while seeing the plight of the Talibans who have been captured and taken to Guantanamo it appears that the world conscience is in deep slumbers.

Finally, I take the liberty here of quoting a paragraph from our renowned commentators Mr. Humayun Gauhar who writes in “THE NATION” of 27 January 2002. “...It’s a great shame, the deafening din of the silence of our shrill human rights orchestra. Where are they?... Have they not heard of Camp X-ray where prisoners from America’s Second Afghan War are being brutalized, tortured and desensitized, all their senses blocked with masks, ear plugs, gloves probably taste buds even with non-halal Mac-Donalds? Or is the music of our human rights orchestra reserved only for human rights abuse at home because that attracts praise and prizes from the West”.

Further Reading

1CRS Report to Congress — Code RL-311191 Updated Dec 11, 2001 Jennifer Elsea.

2The “NATION”- Lahore of 27 Jan 2002.

3The  ‘NATION’ Lahore of 05 June 1997 — EAS Bokhari.

4Development & Principles of International Humanitarian Law Jean Pictet Martinus Nijhoff — Publisher-1985 Dordrecht Henry Dunant Institute — Geneva.