Book Reviews | Gordon Campbell | News Flashes | Scoop Features | Scoop Video | Strange & Bizarre | Search

 


The Bergdahl-Taliban Prisoner Exchange: Prisoners of War

The Bergdahl-Taliban Prisoner Exchange: Illegal combatants and Prisoners of War

by Dr. Binoy Kampmark
June 4, 2014

[The prisoner swap] rips open an issue that we’ve put aside for 10 years, which is that some of the people we have imprisoned could be entitled to some Geneva protections.
Eugene Fidell, quoted in The Daily Beast, June 2, 2014

Initially, it hardly bubbled up to the surface of American political discussion, but the insistent language by US Defence Secretary Chuck Hagel, that a prisoner exchange had been affected regarding Sgt. Bowe Berghdahl, was something of a minor revolution. “Sgt. Berghdahl is a sergeant in the United States Army. He was a prisoner of war. This was an exchange of prisoners… Again, I remind you that this was a prisoner of war exchange.”

It was made very clear in the exchange brokered between American and Qatari officials with Taliban captors that Berghdahl would go free for five hardened Taliban fighters. Bergdahl had been purportedly captured by members of the Haqqani network operating in the Afghanistan-Pakistan border region on June 30, 2009. National Security Adviser Susan Rice reiterated that, “He wasn’t simply a hostage. He was a prisoner of war.”

Such a move suggested that the current insurgency is, in fact, a state of war. Not that it was ever declared, nor ever will be recognised as such. Formal declarations of war are the stuff of musty chivalric codes and international law texts of the eighteenth century. Modern states prefer violent molestation to announcement, creeping assault to noisy proclamations before firing weapons.

The entire debate has been conflated with that of terrorism, the perversely myopic stance taken by the Bush administration when it decided that punishing the Taliban for misguided hospitality towards al-Qaeda was the way to righteous vengeance. The argument made by various legal counsel to the White House, notably John Yoo, was that the Laws of Armed Conflict drew a distinction between lawful and unlawful combatants. The former are vested with formal governmental authority to engage in hostilities; the latter are not, often deemed outlaws engaged in breaching the rules of international law.

In a co-authored paper for the Virginia Journal of International Law, Yoo argued that, “Members of al-Qaeda and the Taliban militia have chosen to fight in blatant disregard for the laws of armed conflict and are, accordingly, unlawful combatants not entitled to the legal status of prisoners of war under the Geneva Conventions.”

The reasons for evading Article 4 of the relevant Geneva Convention dealing with Prisoner of War status were not merely stone cold Machiavellian. Some seemed to have been plucked from a confused, half-drunk after dinner conversation. Bush’s White House press secretary, Ari Fleischer, showed in February 2002 why every muddled president deserves muddled employees. For one, he feared a monthly stipend would have to be paid from the US treasury if the dreaded article applied. Then came something far more serious. “The United States government would be obligated to give the al-Qaeda or the Taliban detainees, the al-Qaeda terrorists in Guantánamo musical instruments.”

This is Fleischer playing bumbling fool and poor comic. He might have been informed prior to the briefing that the Taliban and various al-Qaeda militants have waged, as they continue to do, a campaign against music and musicians. Given them a musical instrument, and they are bound to reach for the gun.

The designation, officially accepted by the Bush administration towards the Taliban and al-Qaeda combatants, was all too neat, arbitrarily placing a certain group of combatants outside the Geneva Conventions (1949) framework. This, despite the core principle of the four conventions, and their additional 1977 protocols making it clear that every person in enemy hands must have some status in international law – that of a prisoner of war or a non-combatant.

Some have argued that illegal combatants as a term is a misnomer susceptible to abuse. It is true that some distinction is drawn between terrorist fighters who tiptoe around the fundamentals of international law to implement their program, and soldiers of authority dressed in standard fatigues who kill or are killed by more acceptable rules of engagement. According to René Värk, however, this “does not mean that they [illegal combatants] are completely outside the protection of international humanitarian law” (Juridica International, vol X, 2005).

The semantic trick, offered like the head of John the Baptist to Salome and Herodias, placed both the Bush and Obama administrations in a bind. You can negotiate with official authorities you are at war with. You don’t, as per long standing policy, negotiate with those tarred with the terrorist brush. This static position has naturally led to a host of diplomatic perversions, the latest being the Bergdahl exchange. What has just taken place suggests that terrorists can, in fact, be prisoners of war.

The legal brief should simply read, in all its clarity, that the Obama administration is dealing with a rehabilitated enemy, one who has been spiced and revived by the contradictory corpus that are the Geneva Conventions. For five years of Bergdahl’s captivity, notes Josh Rogin of The Daily Beast (Jun 2), “the policy was never to use [prisoner of war] for the missing soldier and now experts are worrying that the Taliban will start calling its captured soldiers ‘prisoners of war’ too.” This is already sending shudders through the political wire. Did those legal eagles get it wrong?

GOP Rep. Mike Rogers, chairman of the House Permanent Select Committee on Intelligence, was happy to stick to the dogmatic line in rubbishing the exchange. “You send a message to every al-Qaeda group in the word that there is some value in a hostage that it didn’t have before.” Conservative commentators such as Wesley Pruden , writing for The Washington Times, argues that Obama “seems determined to empty the prison at Guantánamo Bay five Islamic heroes at a time, if only he can find enough American prisoners of war to make the swaps.”

The patriotic disease (for commentators rather than the sergeant) has also manifested itself, finding in Bergdahl a character who went wobbly when he discovered that freedom land’s objectives were more brittle than first assumed. Writing home, he found his battalion commander “a conceited fool”, and found “the horror that is America is disgusting.” For those worried about this exchange, neither the Taliban, nor Bergdahl, ought to be legitimised.

The broader implication of the Obama administration’s admission is a jarring one for the entire extra-judicial apparatus that continues to plague US security policy. Taliban fighters will be entitled to claim enhanced protections under the Geneva Conventions. They might even, heaven forfend, receive a stipend. The very premise of Guantánamo Bay’s existence, that great sore on the landscape of American jurisprudence, will be further undermined.

*************

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

© Scoop Media

 
 
 
 
 
Top Scoops Headlines

 

Valerie Morse: Key And NZ Police At G20: What A Contribution

While 200 New Zealand police officers are helping to repress protests outside of the G20 in Brisbane this week, John Key has been inside pushing the interests of giant multinational corporations to fast track the World Trade Organization (WTO) ... More>>

ALSO:

Gabriela Coutiño: Ayotzinapa Caravan Meets With EZLN In Oventic

In their visit to Zapatista Territory, parents of the 43 students disappeared from Ayotzinapa Guerrero, agreed with the Zapatista National Liberation Army (EZLN), to articulate a national grassroots movement that would question forced disappearances ... More>>

Ramzy Baroud: Talk Of A Third Intifada: Where To From Here, Palestine?

When a journalist tries to do a historian’s job, the outcome can be quite interesting. Using history as a side note in a brief news report or political analysis oftentimes does more harm than good. More>>

ALSO:

David Swanson: Who Says Ferguson Can't End Well

Just as a police officer in a heightened state of panic surrounded by the comfort of impunity will shoot an innocent person, the Governor of Missouri has declared a state of emergency preemptively, thus justifying violence in response to something ... More>>

Melanie Duval-Smith: Homeless Is Where The Heart Is

So, you are not allowed to feed the homeless on the streets of Florida. Last week, a 90 year old man and two Christian ministers were arrested for doing just that. I can hear the cries of the right wingers from here. “Not in our back yard”, ... More>>

John Chuckman: What We Truly Learned From the Great War and the Absurdity of Remembrance Day

No matter what high-blown claims the politicians make each year on Remembrance Day, The Great War was essentially a fight between two branches of a single royal family over the balance of power on the continent of Europe, British foreign policy holding ... More>>

Redress Information: A European Call To Suspend EU-Israel Association Agreement

More than 300 political parties, trade unions and campaign groups have called on the European Union to suspend its “association agreement” with Israel. The agreement, which came into force in 2000, facilitates largely unrestricted trade with Israel ... More>>

Ramzy Baroud: The Age Of TV Jokers: Arab Media On The Brink

As I was finalizing my research for this article, I found myself browsing through a heap of hilarious videos by mostly Egyptian TV show hosts Tawfiq Okasha and Amr Adeeb. More>>

Get More From Scoop

 
 
 
 
 
 
 
Top Scoops
Search Scoop  
 
 
Powered by Vodafone
NZ independent news