Fate of 'detainees' hangs on US wording

US Attorney General John Ashcroft said Tuesday that the administration would seek criminal charges in a civil court against the American Taliban prisoner John Walker Lindh, rather than send him to a military tribunal. Mr. Ashcroft said he would not face the death penalty. (Related story, page 2.)

US officials say that the foreign prisoners captured in Afghanistan are not covered by the third Geneva Convention because they were "bands of people that I don't think would meet the criteria of organized military activity," as Pentagon spokeswoman Susan Hanson put it.

The Pentagon has also stressed that the prisoners are being well treated, given three "culturally appropriate meals" a day, and the opportunity to shower, exercise, and receive medical attention.

Human rights organizations, however, have raised questions about the prisoners' housing conditions, which according to the Geneva Convention should be the same standard of those enjoyed by their guards.

"If US POWs were ever kept under these conditions, the United States would complain, and rightly so," says James Ross, a senior legal adviser with the New York-based Human Rights Watch. The ICRC is to send a team to Guantanamo by the end of this week, US officials have said, to inspect Camp X-Ray.

Meanwhile Pentagon legal experts are currently working on a procedure to decide on the prisoners' fate. US policy towards them "is a new construct of the new military situation we find ourselves in," dealing with irregular forces from a variety of countries who are suspected of terrorism rather than traditional war crimes, Ms. Hanson says.

Little is clear, however. "There are a bunch of lawyers who are looking at all these treaties and conventions and everything, trying to figure out what is appropriate," Mr. Rumsfeld told reporters last week.

"They are a bit of a tangle, these people," says Prof. Roberts. Under the Geneva Conventions, POWs must be returned home at the end of the war. But Saudi or Egyptian detainees, for example, could face mistreatment at the hands of their governments, which means Washington would be forbidden by international law to hand them over.

It is also unclear what would constitute an end to the war on terrorism. And if some individuals were found to be a continued danger, the US authorities would be reluctant to release them.

"I don't think anything quite like this was envisioned when the Geneva Conventions were drawn up," says Tom Farer, dean of Denver University's Graduate School of International Studies and a former special assistant to the Defense Department's special counsel.

"What is worrying," adds Prof. Roberts, "is that by calling these people 'battlefield detainees', the United States seems to be creating a legal limbo where it is not clear what the legal standards are."

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