The US considers these prisoners "unlawful combatants".
http://news.bbc.co.uk/1/hi/world/americas/1754444.stm
The US is interested in finding a definition that allows them to treat the prisoners with total freedom. That doesn't mean it's correct or legal.
Note what the Geneva Convention says:
Article 5
Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.
Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.
Article 5 clearly covers them. In fact, artiicle 5 was written just for such men. There's no ambiguity about it.
This is what the Red Cross has to say:
Captured combatants must be granted prisoner of war status (POW) and may be held until the end of active hostilities in that international armed conflict. POWs cannot be tried for mere participation in hostilities, but may be tried for any war crimes they may have committed. In this case they may be held until any sentence imposed has been served. If the POW status of a prisoner is in doubt the Third Geneva Convention stipulates that a competent tribunal should be established to rule on the issue.
Civilians detained for security reasons must be accorded the protections provided for in the Fourth Geneva Convention. Combatants who do not fulfil the requisite criteria for POW status (who, for example, do not carry arms openly) or civilians who have taken a direct part in hostilities in an international armed conflict (so-called "unprivileged" or "unlawful" belligerents) are protected by the Fourth Geneva Convention provided they are enemy nationals.
Contrary to POWs such persons may, however, be tried under the domestic law of the detaining state for taking up arms, as well as for any criminal acts they may have committed. They may be imprisoned until any sentence imposed has been served.
Persons detained in relation to a non-international armed conflict waged as part of the fight against terrorism – as is the case with Afghanistan since June 2002 - are protected by Article 3 common to the Geneva Conventions and the relevant rules of customary international humanitarian law. The rules of international human rights and domestic law also apply to them. If tried for any crimes they may have committed they are entitled to the fair trial guarantees of international humanitarian and human rights law.
What is important to know is that no person captured in the fight against terrorism can be considered outside the law. There is no such thing as a "black hole" in terms of legal protection.
That's the whole point. It's not that the US cannot capture, try and execute people who have committed illegal acts, or that it must give POW status to anyone it captures. Clearly many of them are not entitled to POW status (although they are entitled to have that status determined by a tribunal, not the say-so of a politician)
What every detainee is entitled to is protection under the law. Every single detainee is covered by the law, just as a criminal is, and just like a criminal, the law allows for them to be held accountable for their actions.
This was from a fairly old article but note the part about "men from 39 countries". Clearly some of these prisoners do not qualify as:
quote:
Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms.
I wasn't suggesting they all do, or indeed that
any of them do. I was just pointing out that because they were not in uniform does not automatically deprive them of POW status.
Note though that the convention says "inhabitants" of a territory, not citizens. It's perfectly possible for an American, Briton, Frenchman or Kuwaiti to be an "inhabitant" of Afghanistan.
Of all the combatants taken prisoner by the US in Afghanstan this small subset was selected and classified as "illegal combatants". Do you think it is possible they were selected for a reason?
I think they were selected because the US believes they are more dangerous, or have more information, than the rest.
