By Flouting War Laws, U.S. Invites Tragedy

Erwin Chemerinsky, a professor of law and political science at USC, was one of the plaintiffs and co-counsel in a lawsuit brought on behalf of the Guantanamo detainees.

On Sunday, Secretary of Defense Donald Rumsfeld quickly invoked international law in condemning Iraq’s treatment of American prisoners of war and its use of civilians as human shields. As soon as the Americans were shown on television, Rumsfeld denounced Iraq for violating the Geneva accords, which govern the treatment of prisoners of war.

But Rumsfeld’s hypocrisy here is enormous. For two years, the Bush administration has ignored and violated international law and thus has undermined the very legitimacy of the treaties and principles that constitute the law of nations. Though we all hope, of course, for the quick and safe return of the American prisoners of war, the fact is that -- unfortunately -- Iraq and other nations may feel much freer today to violate international law in the way they treat war captives and the way they wage war.

One clear violation by the United States is taking place in Guantanamo Bay, where for the last 15 months the U.S. has held more than 600 captives in clear violation of international law.

Under the third Geneva Convention, those who were caught in Afghanistan are deemed prisoners of war if they were fighting for the Taliban. International law prescribes the way they can be questioned, how they are to be treated and when they are to be repatriated. The U.S. government has ignored all of these requirements.


Rumsfeld has asserted that those held in Guantanamo are “enemy combatants” and thus the rules for prisoners of war do not apply. International law draws a distinction between “prisoners of war,” who were soldiers fighting for a nation, and “enemy combatants,” who were not acting on behalf of a country; enemy combatants are accorded fewer protections than prisoners of war. Under well-established principles of international law, only those who fought for Al Qaeda and not the Taliban government are enemy combatants. The Geneva accords are clear that there must be a “competent tribunal” to determine whether a person is a prisoner of war or an enemy combatant.

More than a year ago, Secretary of State Colin Powell expressly recognized this but nothing has been done despite the requirements, however ambiguous, in treaties ratified by the U.S.

Several months ago, top-level administration officials were quoted as saying they knew many prisoners were being held in Guantanamo by mistake because of inaccurate intelligence from foreign governments and because of arrests made in the heat of battle. Therefore, individuals continue to be held even though it is known that they did not participate in terrorism and have no useful information, and even though it is a clear violation of international law to continue to detain them.

Many of these individuals have been held in solitary confinement, some for as long as 15 months, with no charges brought against them and no end in sight. For a time, many were held in small cages. They have not been allowed to speak to an attorney, and they have had virtually no outside contact. This treatment violates basic principles of human rights law. About 25 of the detainees have attempted suicide.

Several lawsuits have been brought on behalf of these detainees, claiming that the U.S. is violating international law. Washington has successfully moved to dismiss each of these and has persuaded judges that no court has jurisdiction to hear such claims. This too violates international law because the International Covenant on Civil and Political Rights states: “Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention.” The treaty also provides that "[n]o one shall be subjected to arbitrary arrest and detention.”

Rumsfeld has criticized Iraq’s use of civilians as shields against attack at its military and political facilities. Although he is right that this is despicable behavior, he cannot legitimately invoke international law to govern how a war should be fought when the war itself is a clear violation of international law. Nothing in international law authorizes a preemptive war to overthrow a government and disarm it. Our war in Iraq fits in none of the prescribed situations where it is lawfully permissible.

There are enormous costs to such behavior. The United States cannot expect other nations to treat our prisoners in accord with international law if we ignore it. If the United States wants other nations to live by the rule of law, it too must do so.