Fri, 18 Jul 2003

Judging Preisdent George Bush's military tribunals

Aryeh Neier, President, Open Society Institute Project Syndicate

Britain continues to be America's staunchest ally in the U.S.- led war in Iraq, and Prime Minister Tony Blair remains unwavering in his support. But his government does have a serious quarrel with the Bush administration. The American President's designation of two Britons to be among the first six of 680 prisoners held at the U.S. base at Guantanamo Bay in Cuba to face a military trial has been condemned across the political spectrum in the United Kingdom.

The British are not alone. Worldwide, the detentions at Guantanamo Bay and President Bush's military tribunals have become symbols of America's readiness to abandon concern for rights in the name of the struggle against terrorism. Indeed, one senses a certain satisfaction in some countries that have been the targets of human rights criticism by the U.S.; now they sense an opportunity to turn the tables.

Whether denunciations of the detentions at Guantanamo and the planned military tribunals are driven by genuine concerns about human rights or by glee at pointing out American hypocrisy, the effect is the same. Because the U.S. is such an outspoken proponent of human rights internationally, its failure to respect rights assumes added significance, contributing to a rising tide of anti-Americanism in much of the world.

The Bush administration has only itself to blame for this state of affairs. The creation of Camp X-Ray at Guantanamo, and President Bush's executive order establishing military commissions to try those held there, aimed to deal with prisoners seized during the war in Afghanistan whom the U.S. considered to be "unlawful combatants." That is, the Bush administration believed that they were al-Qaeda members or others who did not fight by the rules of war and thus not entitled to prisoner-of- war status.

Potentially, there are three bodies of law that could govern the treatment of these prisoners:

o Domestic American law in accordance with the rights guaranteed by the U.S. Constitution;

o International human rights law to which the U.S. is a party through its membership in the UN and its ratification of the International Covenant on Civil and Political Rights;

o International humanitarian law -- also known as the laws of war -- to which the U.S. is also a party through its ratification of the Geneva Conventions of 1949 and through its acceptance that certain provisions of the First Additional Protocol of 1977 have the status of customary international law that is binding on America as on all other governments.

In practice, the Bush administration rejects application of any of these bodies of law to the Guantanamo prisoners. Instead, President Bush asserts the power to hold them indefinitely at Guantanamo or, in his unreviewable discretion, to bring them to trial before military commissions that deny them the due process protections to which they would be entitled if any of the three legal systems were followed.

The Bush administration's argument for not applying domestic law is that the prisoners are not American citizens and are not held on American territory. Guantanamo was selected as the site to imprison them in a deliberate -- and successful -- effort to prevent American civilian courts asserting their jurisdiction.

As far as international human rights law is concerned, the Bush administration has been silent. But its fundamental position is that treaties such as the International Covenant on Civil and Political Rights are not self-executing. Hence, they accord no rights to the prisoners at Guantanamo in the absence of implementing legislation.

It is the Geneva Conventions and the First Additional Protocol that create the greatest difficulties for the Bush administration. The Conventions require that, where there is any doubt, a hearing must be held before an impartial tribunal to determine whether a prisoner seized during an armed conflict is entitled to prisoner-of-war status. Since no such hearings have been held, the Bush administration is effectively claiming that there is no doubt in the case of any detainee.

As in other instances where government officials claim unanimity -- such as Saddam Hussein's assertion that he obtained 100 percent of Iraqis' support in the plebiscite that he conducted shortly before the war -- America's position is simply not credible. It amounts to a determination that all the detainees at Guantanamo are guilty of being unlawful combatants without any proceedings or any opportunity for them to defend themselves.

Moreover, even if they are found to be unlawful combatants, the First Additional Protocol of 1977 requires that they be afforded certain due process protections, which will not be available to those brought before the proposed military commissions. The commissions may even sentence detainees to death, with no appeal to a civilian court whatsoever.

Little wonder, then, that Tony Blair's government is angry that two of its citizens will be tried before President Bush's military commissions. Up to now, criticism from the rest of the world has had no effect on the Bush administration's plans. It remains to be seen whether protests by an ally who has stood by America so loyally, and at such great cost to his own political standing, will have a greater impact.

The writer is also a founder member of Human Rights Watch and author of War Crimes: Brutality, Genocide, Terror and the Struggle for Justice.