Shouts from the desert

Another court in the United States has ruled against the validity of the Guantanamo Bay tribunals, this time stating that there has not been a valid determination that the prisoners are not prisoners of war entitled to the protection of the Geneva Conventions. Under the Constitution of the United States of America, treaties ratified by the United States have the status of a law without having to be passed by Congress as long as they are "self-executing", which means in simple terms that they state clear rules capable of being adhered to without enabling legislation. Many of the provisions of the Geneva Conventions are in this category, so if the prisoners are found to be prisoners of war within the meaning of the Conventions, the tribunals are illegal for yet another reason.

It is important to note that this is just one more ruling against the tribunals in a mounting series of rulings showing the tribunal procedure to be a mockery of justice. It is one question that the Bush administration must win in order to defend the validity of the system they have established, but there are other questions they also have to win on - including the question of whether a United States government has the authority to establish a system of trials designed specifically to avoid critical aspects of the justice system that are recognised as critical to any system of justice since the abolition of the Star Chamber.

Could the prisoners be prisoners of war? Maybe, for some. While the Taliban was a horrific regime, it was clearly, under international law, in control of the State of Afghanistan at the relevant time, and hence was its government. Persons acting in its defence with the authorisation of the Taliban during the invasion by the United States have a good claim to be prisoners of war. In addition, any person captured in the region in the course of hostilities has a good claim to be a prisoner of war.

An official of the US Department of Justice, Mark Corallo, claimed that "The judge has put terrorism on the same legal footing as legitimate methods of waging war", which is a strikingly ignorant thing for somebody who should presumably have some legal qualifications to say. Firstly, despite the flagrant misuse of the word "war" by the United States administration, war is a conflict between two or more States. A rebellion or civil war is not truly a war - nor is the "war" on terror, because as much as the US might direct its forces against nations in the name of that "war", the real mission is a criminal enforcement action against people who are not part of, or acting in the name of, any government or State.

Thus the question of whether these are prisoners of war depends not on what they or any organisation they were a member of did, rather it depends on to what degree they were acting with the authority of, and on behalf of, the State of Afghanistan, or whether they were captured in the course of armed conflict between the United States and the State of Afghanistan.

With the nature of the Taliban government, this is a complex question that is not amenable to a simple answer, and so it is one that must be determined by the courts - real courts, not the mockery that is the Guantanamo system.