February 8, 2002

Not all Taliban soldiers POWs

President Bush has decided that Taliban prisoners are to be accorded protection under the Geneva Convention, but captured Al Qaeda fighters are not. This decision does not mean, however, that Taliban fighters will be accorded POW status, just that they will be treated in the manner specified by the Geneva Convention. On the whole, I think that this is a questionable decision by Bush that is likely to have no practical effect and leave muddled the exact legal status of the Taliban regime.

Administration officials admit that this decision will have few immediate effects on the detainees, and Ari Fleischer is quoted in The Washington Post as saying it "will not change their material life on a day-to-day basis." The Post article (available on the Internet at www.washingtonpost.com/wpdyn/articles/ A39590-2002Feb7.html), however, does suggest that this means individual Taliban will be more likely to receive POW status later on. I am not sure if that is a wise decision. The United States did not recognize the Taliban as a legitimate government, and so according its fighters protection under the Geneva Convention simply because a previous Afghan government had signed the convention seems to be giving it an undue legitimacy. It is known that Osama bin Laden recruited from the same sources for both the Taliban (e.g., John Walker Lindh) and his own Al Qaeda organization. Some members of the Taliban and Al Qaeda are tied so closely together that it seems to me silly to draw a distinction.

The above point must be qualified with one caveat, however. That is that not all the people that fought for the Taliban were recruited through Osama bin Laden. There were many native Afghans that fought for the Taliban by their own volition or because they served a local warlord who supported the Taliban. Judging from news reports, however, it seems to me that many of the local Afghan Taliban defected as the movement was collapsing last November and December. I would suspect that most of the Taliban taken into custody are indeed foreigners who immigrated to fight for the Taliban, and therefore fit better the definition of illegal combatants. I don't know this, for as far as I know the government has released no statistics on the backgrounds of Taliban prisoners being held in Afghanistan and Cuba. But certainly any native Afghan Taliban who are being held deserve a different consideration. In fact, provided that they are not suspected of any other crimes, I think those fighters should be released, as holding them really serves no purpose.

Getting back to the main point, however, Taliban fighters should not necessarily have a better chance of POW status than their Al Qaeda counterparts because the Taliban, while it did not commit crimes abroad in the way that Al Qaeda did, could definitely be said to have supported those crimes, and the Taliban also committed criminal activity (e.g. torture of dissidents) within Afghanistan. The Fourth Geneva Convention, governing the rules of war and occupation, states that "Protected persons shall not be arrested, prosecuted or convicted by the Occupying Power for acts committed or for opinions expressed before the occupation, or during a temporary interruption thereof, with the exception of breaches of the laws and customs of war" (Article 70). From the perspective of the Taliban, I think it is fair to consider Afghanistan an occupied nation (in this case we can consider the United States, the United Kingdom, and the United Nations as working together with the new Afghan government to transition Afghanistan from occupation to liberation). This rather vague provision, however, makes it unclear as to whether Taliban who repressed political dissent or physically abused members of the populace could be tried by the United States or the new Afghan government for those crimes. In short, granting Geneva Convention protection to Taliban fighters will make it harder to investigate their conduct during the war in Afghanistan (as the Geneva Convention also provides protection against interrogation) as well as criminal activities that took place in Afghanistan before the overthrow of the Taliban. Now, the new Afghan government can certainly legislate away some of these difficulties, but it is still being organized and has a lot of other things to worry about. Ultimately, the international community must provide assistance to it in dealing with former Taliban, particularly those who came from abroad to fight. A blanket grant of Geneva Convention protection makes this much harder to do.

This is not to say that I think that all Taliban are unworthy of POW status. In fact, most, even the foreign fighters, probably are. Nonetheless, some have participated in atrocities against Afghans, and the Taliban in general, as I mentioned, has supported terrorist activities not just in the United States, but all over the world. It is unfair, from my point of view, for the United States to have the last say on Taliban and Al Qaeda detainees. After World War II, the allies set up an international system for dealing with Nazis that committed both crimes against humanity and war crimes. There is no reason to think that a similar system could not work for top Taliban and Al Qaeda. The Taliban and Al Qaeda have committed crimes against civilized society in general. The United States has so far lived up to its responsibility to use its military power to stop these criminal activities. Now we must allow victimized countries, including Afghanistan itself, to have a say in the perpatrators' final punishment.

Tim Miller, the Viewpoints editor, is a third-year in the College concentrating in economics. He can be reached at btmiller@midway.uchicago.edu.