Ron Smith: Prisoners and War - Why we need Guantanamo

For some centuries the convention was clear. In regard to war between states (conventional war), prisoners were returned when the war was over. Notwithstanding that they may have killed soldiers of another state, they were not seen as criminals by either party. This convention became international law with the universal ratification of the Geneva Conventions and specific provisions for the status and treatment of prisoners of war were set out in the third Geneva Convention in 1929.

Until the middle of the last century the conventions of war were clear, too, about who was doing the killing and who was being killed (soldiers of the armed forces of a party to the conflict, in each case). Following World War Two, Geneva widened the category of ‘combatant’ to include civilians who take up arms and ‘participate in the hostilities’. They were nonetheless expected to follow the laws of war (most notably in respect of non-combatant immunity). If they did, the implication was that they would be treated as legitimate combatants and would be entitled to prisoner-of-war status, in the event of capture.

This conventional/legal framework does not sit well with modern patterns of warfare. To begin with, the proportion of ‘participants’ who are not members of a regular military force, responsible to a government and subject to a formal structure of military control, has declined, and conflicts in which one of the parties is entirely made up of informal fighters have become common. These are variously termed civil, or revolutionary wars, or insurgencies, or otherwise, asymmetric conflicts. These conflicts are asymmetric, too, in the extent to which the informal parties see themselves as bound by the rules of war, or are seen by others as having any such obligation. This may be because they see themselves (or are seen by others) as absolved from any such restraint in virtue of their relative military weakness, or in virtue of the moral standing of their cause, or because they do not recognise the moral authority of the so-called just war tradition (or the legal authority of the Geneva Conventions). Whatever is the case, a major problem arises when fighters in these asymmetric conflicts are captured by the other side.

What should be done is clear from the four Geneva Conventions of 1949, which have been ratified by virtually every state in the world, and are thus binding on all their citizens. Prisoners are to be kept safely and fed properly and allowed contact with the International Committee of the Red Cross. They should then be freed when the conflict is over. In the event that prisoners cannot be properly held, they should be released, or handed over to a party that can hold them appropriately.

In the modern context there are very substantial difficulties with this. To begin with, there is the practical question of determining the appropriate period of incarceration. For conventional wars like World War Two, this was not a problem. The bulk of prisoners were returned promptly in 1945, having been held, at most, for six years. Unconventional wars, on the other hand, can last much longer (the IRA insurgency, civil wars in Sri Lanka and Angola, the ‘war on terror’). The first three of these are over now and they took around thirty years to resolve but what about the on-going war between Islamic fundamentalists (al Qaeda/Taliban) and the United States (and the West, generally)? Depending on what we judge to have been the time of onset, this conflict has been going on for some decades and may go on for decades more. If the captives at Guantanamo are prisoners of war, why should it be expected that they be released anytime soon?

There is also some doubt whether irregular fighters should be accorded quasi-military status. Certainly in the case of insurgents seeking to overthrow a government, or achieve the secession of a part of the state, they may be simply considered as criminals. States are widely accepted as having a monopoly in the use of violent means and political violence against the state is always illegal. This was broadly the view the British government took of IRA persons who fell into their hands. They were sentenced for criminal offences and then released. This wasn’t entirely satisfactory either, since they could, and did, return to terrorist activity at the end of their sentence.

There is another problem. The rights of prisoner-of-war status may only be claimed by combatants who have themselves conformed to the rules they are claiming benefit from. This is scarcely ever true of contemporary insurgents/terrorists, who typically do not respect the immunity of non-combatants (which makes them terrorists by UN definition) or treat their captives as Geneva law requires. This arguably makes them what the American authorities have called ‘illegal combatants’.

The incarceration of prisoners of war does not require any justification beyond demonstrating (if this is required) that they were, at the material time, participating in hostilities. If these prisoners are ‘illegal’ in the sense outlined above they cannot claim the privileges of Geneva law, although it may be expected (as Geneva does in the case of spies or mercenaries) that they are treated humanely. In exceptional cases they may also be tried for war crimes or serious civil offences but the continued imprisonment of such persons does not require the application of ‘due process’. Albeit illegal, they are also enemy combatants and they would continue to pose a threat if liberated.

For those who like their law tidy, this is a profoundly unsatisfactory state of affairs. On the other hand, a process that leads to the release of dangerous extremists is even more unsatisfactory. America (and the West) still needs Guantanamo.

Ron Smith is the Co-Director of International Relations and Security Studies at the Department of Political Science and Public Policy, University of Waikato.