Geneva for Demagogues

A FEW weeks ago, I spoke at a conference on international law issues, held at a leading university in the US. An official of an international human rights organisation, who turned out to be an Australian, brought up the treatment of Australian prisoners at the US military prison at Guantanamo Bay. I said this was a matter for discussion between the US and Australian governments. The human rights advocate dismissed that suggestion out of hand. John Howard, he scoffed, was so eager to "cosy up" to George W. Bush that the Australian Government could not be trusted to speak for Australian prisoners.

To judge from Australian newspapers, a lot of people seem to share this attitude. Howard is in Washington today for talks with Bush. Will he be firm enough, critics wonder, in standing up for the rights of the two Australian citizens, David Hicks and Mamdouh Habib, who were seized in Afghanistan in 2001 and have been held at Guantanamo for more than two years now?

Relatives and advocates of these prisoners claim they have been subjected to torture and abuse while in US custody. These accusations have been denied by US officials. Australian consular officials have been allowed to meet the prisoners but have not endorsed these accusations. The Australian prisoners will be tried later this summer for war crimes they are alleged to have committed in Afghanistan. Australian critics warn that no military proceeding at Guantanamo can be a fair trial. Some have urged that trials should be conducted by civil authorities in Australia.

Facts ought to matter in this dispute. The Bush administration acknowledges that some guards at Abu Ghraib prison in Iraq behaved very badly. To some critics, that blot on US honour is yet one more argument against trusting US authorities at Guantanamo. But admission of wrongdoing in one setting should not discredit denials of wrongdoing elsewhere - unless one starts with a general presumption of American untrustworthiness. Some critics seem to hold precisely that presumption, depicting the Guantanamo prison as defying international standards, such as the Geneva Conventions. Several basic points in the background of this dispute are in danger of getting lost amid heated rhetoric, mingling particularised complaints with generalised presumptions of wrongdoing.

The first point to remember is that the Geneva Convention on prisoners of war is not a reliable guide to the proper treatment of terror suspects seized in Afghanistan. The Geneva Convention was negotiated after World War II. It was designed to protect soldiers of regular armies. It was never intended to protect guerilla bands or terrorist cells.

The Geneva Convention thus stipulates that its protections apply only to those fighting under distinctive uniforms or designations, under a reliable command structure and in forces that agree to observe the accepted rules of war (as, for example, in their own treatment of military prisoners). Al-Qa'ida fighters in Afghanistan fit none of these specifications. The US has accordingly taken the position that captives taken in Afghanistan cannot claim the full protection of the convention.

This stance is not an expression of vengeance or spite. The protections of the convention include sharp limitations on the interrogation of prisoners. That is a reasonable concession to offer soldiers of a regular army when their units have already surrendered. It makes far less sense when dealing with members of a terror network still plotting new attacks. The convention directs that prisoners must be repatriated following the agreement of peace with their home government. It is a condition not easily applied to an international terror network that does not answer to any home government.

Of course, there are limits to what can or should be done to prisoners. US authorities have also held that conditions at Guantanamo would conform to Geneva standards as much as possible. The International Red Cross has been allowed to verify the general condition of prisoners there.

Even if one appeals to the letter of the Geneva Convention, however, a second point to keep in mind is that the convention does not impose very exacting standards for the trial of prisoners on war crimes charges. The convention was negotiated among nations with quite different legal systems. The former Soviet Union, for example, was one of the leading participants at the 1949 drafting conference.

Trials, according to the convention, do not need to conform to standards in the domestic justice system of the detaining power, let alone in the home country of the accused. The convention stipulates that trial of war prisoners should be conducted by the military authorities of the detaining power. Not much is required for Guantanamo trials to satisfy the Geneva standard.

Finally, it's important to remember that Australia and the US are not simply adversaries in this dispute. Hicks and Habib were not taken prisoner in a war against Australia but in a war against Afghan terror networks, in which Australia was a US ally. Some prisoners released from Guantanamo last year have been discovered back in Afghanistan, participating in terror raids against the new Government there. Australian troops - and indeed Australian civilians - are as likely to be targets of future terror attacks as Americans.

There is ongoing debate in the US about what should be done with detainees at Guantanamo. There is plenty of room for argument regarding details. There may be good reasons for Australian officials to advocate somewhat different priorities or procedures. There is no good reason to think that human rights advocates or Red Cross officials know exactly the right balance to strike between fairness to detainees and security against future terrorist attacks. The US Government may not be entirely impartial in seeking to find this balance. But why put more trust in international advocacy groups, which might be all too "impartial" between terrorist forces and the countries fighting against them?

Jeremy Rabkin is professor of constitutional law at Cornell University in New York state.