Anwar Ahmad

The US is having difficulty deciding what to do with the around 400 Al-Qaeda and Taliban prisoners netted during its Afghan campaign. Around 110 have so far been flown to its Guantanamo Bay Naval base in Cuba (Camp X-Ray). Shielded from the media, they were hooded, chained neck, hands and feet, tied together and to the plane and even tranquillised during the 26-hour flight. The US response to the criticism of this inhuman treatment is that the captives are suicidal killers. Fair enough.

But why shave their heads, moustaches and beards off? In this part of the world, the moustache is a man's honour. Having it shaved off by the enemy is a humiliation worse than death. When Murtaza Bhutto, brother of the then prime minister Benazir Bhutto, was shot dead by the Karachi police, the rumour mill had pointed the finger at her husband Asif Zardari. The "clinching argument" was that Murtaza and Zardari didn't get along and the former, in typical wadera fashion, had the Zardari upper lip forcibly shaved. Despite the denials, in popular perception, the humiliation was grave enough to be motive for the ultimate revenge.

The beard is even more sensitive. When grown in emulation of the Prophet (PBUH), as it was by the US captives, shaving it off is a gross, deliberate and unforgivable insult to their belief. The message of this insensitive, and eminently unnecessary, act of humiliation has not been missed in the Muslim world. One objective of the no-quarter-given US campaign is to break the spirit of defiance of its policies and pursuits, irrespective of the cause or motivation. Thus, Defence Secretary Rumsfeld has "not the slightest interest" in the condition of the captives or the emotional trauma. In his attitude, Hugo Young of The Guardian sees a "contempt for the prisoners and bilious disdain for any critics who might dare to speak" out against their maltreatment.

But Rumsfeld is politically correct as the American opinion does not care for the captives as long as they are kept out of sight. Camp X-Ray is, thus, ideal - an enclave, leased from pre-Castro Cuba, far enough away from the media and, not being US territory, outside the purview of its courts. Not that the media or the courts are overly interested in the human debris of war.

Voices are, nonetheless, being raised. Hugo Young believes that "Guantanamo could be where America and Europe part company" as there is "less than persuasive evidence that the captives are being held as individuals with specific charges against them." Instead, having failed to net the big fish, the US is venting "a sense of generalised vengeance" and enforcing "collective responsibility for the monstrous mass murder" of 9/11.

Even the right-wing British press, notes Young, is beginning to weigh in, the Telegraph blasting Washington for endangering the distinction "between civilised society and the apocalyptic savagery of those who would destroy it." The Washington Post also felt compelled to advise the Pentagon that the US had nothing to lose and much to gain by following the Geneva Convention.

To maintain the moral distinction, the Human Rights Watch warns that the fight against terror must not buy into the terrorist logic of "anything goes in the name of their cause." Amnesty International is unable to understand why the US is violating the Geneva Convention. While affirming that a horrible crime was committed and justice must be done, it cautions that "if a state would use the same methods as the perpetrators, it brings itself down to the same level....of barbarism."

The UN Human Rights Commissioner, Mary Robinson, has also criticised the inhumane treatment of the captives, demanding a clarification of their legal status and treatment according to the international human rights and humanitarian law. Addressing a global human rights conference in Dublin, she expressed the concern that respect for human rights has been severely stressed after the United States' retaliatory war on Afghanistan and the upholders of these rights and humanitarian law pushed on the defensive, forced "to fudge or blur the edges."

Rumsfeld insists the captives are not PoWs but "unlawful combatants" and, thus, not entitled to treatment under the Geneva Convention. Even so, "for the most part," they are being treated "in a manner that is reasonably consistent" with it. And their wire-cages, though open to the elements, are a "spacious" 8x8 feet and not 8x6 as reported. But the ICRC, Mary Robinson and others consider them to be PoWs, and their treatment inhumane. The US has finally relented enough to allow an ICRC inspection of Camp X-Ray. But its findings on the captives' treatment will not be publicised - the charges of inhumane treatment notwithstanding.

The US has actually caught itself in a legal bind. William Schabas, a professor of human rights at the National University of Ireland, believes that the US has gone out on a legal limb by unilaterally declaring that the captives are not PoWs. Their status, he says, can only be decided by a court. US regulations of 1997 empower a military tribunal to determine whether they are PoWs or otherwise. It should, therefore, be easy to certify them as unlawful combatants. Yet, the Pentagon seems reluctant to follow the US or the international law.

The catch, says Professor Schabas, is that if the captives are declared PoWs they will have to be released as soon as the hostilities end. This, naturally, wouldn't do for the US. But its "problem" does not end here. If the captives, all or some, are declared not to be PoWs, they will, then, have to be charged individually or collectively with a crime. But other than the broadsides against the mythical Al-Qaeda, the US has not shown any evidence against its captured foot-soldiers. Only the no-publicity, no-lawyer, tailormade-procedure, no-appeal military courts sanctioned by President Bush can give them life-terms or even death.

There are even more legal wrangles. If the captives have committed any crimes, these were in Afghanistan where the US courts have no jurisdiction. They ought, therefore, to be returned to Afghanistan for trial. This, obviously, cannot happen. The alternative is to prove that they have committed crimes against the US. This too would require their appearance in a court and specific charges and evidence against each individual. So much hassle, when caging them in Cuba and throwing the keys into the Guantanamo Bay is so much simpler!

Sadly, American problems do not end even here. To be unlawful combatants, the Geneva Convention requires the captives not to be members of any recognisable army, or militia, having a uniform, insignia etc. The Taliban fighters, whose commander Mullah Fazel Muzloom is among the captives, formed a regular army of a regime recognised by three countries. They even had a uniform of sorts, including the telltale black turban.

And they fought, as best as they could, a regular war against the Northern Alliance and the US without being accused of any crimes or terrorism. They cannot, thus, be lumped together with the Al-Qaeda fighters and declared unlawful combatants. The Taliban are PoWs, liable to be released when the Afghan "war" is over, or charged with war crimes or terrorism. As for the Al-Qaeda fighters, by the US' own description, they are members of a fearsome international army with which it is at war. That aside, they too will have to go before a court to, first, be certified as unlawful combatants or PoWs and, then, charged and tried. If acquitted, they must also be released. This is the law. But then there is the jungle in which the US is king.

There are few buyers for the view that, by humiliating and mistreating the captives, the US is degrading its own avowed values and losing, whatever be their worth, the hearts and minds of the Muslims. The crusaders' zeal has no stomach for this mush. The realisation may strike if, some years hence, their ruthlessness yields another unintended consequence of the 9/11 kind.

What, however, is being emphasised is that the American precedents would be followed by others, and may even come back to haunt the US and its allies. Please recall the outrage when the bruised faces of captured American pilots appeared on Iraqi TV. There is, of course, no immediate probability of an American prisoner being taken by anyone. But precedents are forever. The US ought, therefore, to do unto others only as it would have done unto itself.

The writer is a freelance columnist

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