VIOLATION!

[pastradamus]

The recent news has come about the question "relese the afghan prisoners fron Guantanamo bay". Now I dont want them to be released because they could kill innocent people again but the U.S govt are in VIOLATION of the geneva convention.tThe americans argue that they are not P.O.W's but they fucking are! The yanks are practically arguing against the very definition of the term "War".Bombs were dropped,mortars fired,green berets deployed so if thats not a war then im not Irish!

[reagan lives]

I'm going to explain this once.

The last Geneva convention that was ratified by the US laid out four qualifications for POW's. POW'S must:
1) Be members of a recognized national military (strike 1)
2) Wear uniforms of said military (strike 2)
3) Carry their weapons openly (let's give them that one)
4) Reciprocally observe the rules of war (strike 3)

So I don't see how one could make the argument that the Guantanamo prisoners are POW's, in light of this. Of course, I assume that you knew what you were talking about before you posted.

Incidentally, there has been another Geneva convention since this one, which made accomodations for guerrilla fighters. The United States did not ratify it. Neither did Afghanistan.

(Edited by reagan lives at 5:39 am on Jan. 31, 2002)

[peaccenicked]

The administration wants to evade all this Geneva Convention stuff and sell the notion that it's fine and dandy to treat the prisoners "in the spirit" of the convention. But the convention doesn't permit that. It doesn't require that its
provision apply only in state-vs.-state conflicts or formally declared wars; several types of conflicts are mentioned. And it very specifically says that if there's doubt about the status of somebody detained that person is to be offered all the protections of the convention until the status is determined by a formal and competent procedure.

Quite frankly, then, all this talk about whether the Geneva Convention applies to these particular prisoners is a bunch of evasive balderdash. There might be doubt about whether those in Guantanamo are part of a regular military force or a bunch or illegal irregulars. But they were taken by American regular military forces, and until their status is determined properly, the US is obligated to abide by the Geneva Protocols in its treatment of them.

They did ratify the old one.


(Edited by peaccenicked at 5:52 pm on Jan. 31, 2002)

[pastradamus]

You stupid capatilist,how they have pulled the wool over your eyes!
1)Geneva's non american members have claimed that they are pow's and that the conventions rules should be bended in order to accomidate this war
2)the US bullies other democratic states into it's beliefs,e.g the way they turned democratic countrys against Vietnam,Iraq,Libya ect.......
3)this point also relates to no 2),NOBODY is better at Propaganda then old uncle sam himself! and dont even get me started on the amount of that they distribute! e.g when clinton visited Vietnam recently a plane flew overhead distributing anti-communist flyers.

p.s Dont question my politics cuz I know what im talking about!

why dont you try www.raisethefist.com I think you will be shocked by the US govt's "honesty" in the way they eliminate their political opponents.

[reagan lives]

Did you read my post? I'll say it again:

THE GUANTANAMO PRISONERS ARE NOT POW'S ACCORDING TO THE GENEVA CONVENTION THAT THE UNITES STATES OF AMERICA RATIFIED.

Clear?

[Moskitto]

1) Be members of a recognized national military (strike 1) - Ah but in a country torn by civil war, who is the military? If it's the largest faction then, yeah the Taliban count.
2) Wear uniforms of said military (strike 2) - Does the Taliban have uniforms? And if they don't why does the convention descriminate against poor people?
3) Carry their weapons openly (let's give them that one)
4) Reciprocally observe the rules of war (strike 3) - Hmmm, I'd have to agree with you on this one. But then again it's not like any of the other factions really observe the rules of war either. And what about Nazi soldiers, although that was more of the SS and Gestapo who were doing most of the abuse.

And if they're not POWs then they must be ordinnary prisoners and there must be some regulations for those?

[pastradamus]

Yeah listen to moskito you capitalist prick!
Nice comeback comrad.

[peaccenicked]

Press Release

--------------------------------------------------------------------------------
16.01.02

STATEMENT OF HIGH COMMISSIONER FOR HUMAN RIGHTS ON DETENTION OF TALIBAN AND AL QAIDA PRISONERS AT US BASE IN GUANTANAMO BAY, CUBA
The following statement was issued today by United Nations High Commissioner for Human Rights Mary Robinson:

«According to recent reports, 30 Taliban and Al Qaida prisoners from Afghanistan arrived at the United States Naval Base in Guantanamo Bay, Cuba, on 14 January, 2002, to join a first group of 20 prisoners transferred from Afghanistan starting on 11 January. The reports include allegations about the manner in which the prisoners were transported and the conditions in which they are being detained.


Detailed information on these specific allegations is not yet available. I am aware that there are a number of legal issues and these are under active consideration by the US authorities. I am also aware that the International Committee of the Red Cross will have access to the prisoners and that there will be consular access.


It is appropriate to recall that there are international legal obligations that should be respected. In particular, I would like to recall that:


· All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.


· The legal status of the detainees, and their entitlement to prisoner-of-war (POW) status, if disputed, must be determined by a competent tribunal, in accordance with the provisions of Article 5 of the Third Geneva Convention.


· All detainees must at all times be treated humanely, consistent with the provisions of the ICCPR and the Third Geneva Convention.


· Any possible trials should be guided by the principles of fair trial, including the presumption of innocence, provided for in the ICCPR and the Third Geneva Convention.»

AND
U.N. group wants court to decide detainees’ status


By Jonathan Fowler
Associated Press

GENEVA — The United States should let a court decide whether captured Taliban and al-Qaida fighters are prisoners of war, the U.N. human rights specialist for Afghanistan said Wednesday.
“The Geneva Conventions provide an elaborate legal framework for dealing with prisoners taken in the course of combat,” Kamal Hossain said. “The conventions also deal with the question of any debate about the status of persons captured.”

The administration of U.S. President George W. Bush says the 158 people captured in Afghanistan and detained at Guantanamo Bay Naval Station, Cuba, are not prisoners of war by illegal combatants.

Human rights groups, some British legislators and European governments have been pushing Washington to designate the detainees as POWs.

POWs have certain rights under the Geneva Conventions on warfare. The United States maintains that it is providing humane treatment like that specified by the Geneva Conventions, but refuses to accord them the status of captured members of a national, uniformed military force.

Hossain noted that the third Geneva convention, which deals with prisoners of war, provides for “a competent tribunal” to determine the status of any captives whose status is in doubt. ''

The US has swept the 'competent tribunal' under the carpet. yet again showing its utter contempt for international law.
Reaganlivid is not telling us about this law.
draw your own conclusiions about his intergrity






(Edited by peaccenicked at 5:28 pm on Feb. 1, 2002)

[reagan lives]

Moskitto, I'm not saying that the stipulations of the Geneva Convention make sense. But irrespective of how much sense the treaty makes, you cannot demand that a nation accords the benefits therein to those who do not fit the guidelines. If you want to make the argument that the US *should* put the prisoners up at the Plaza because it'd be a nice thing to do, that's fine. But one thing that you CANNOT claim is that the prisoners have been mistreated according to the Geneva Convention.

As for peacenick, that was very informative, especially this part:
"Detailed information on these specific allegations is not yet available."

Therefore, this little statement is quite worthless, at least with respect to the actual treatment of the prisoners.

As for the second one, we have this:
"Hossain noted that the third Geneva convention, which deals with prisoners of war, provides for “a competent tribunal” to determine the status of any captives whose status is in doubt."

Listen to me carefully, this is the second time I've said this in this thread. THE UNITED STATES DID NOT RATIFY THE THIRD GENEVA CONVENTION. NEITHER DID AFGHANISTAN. Clear?

Draw your own "conclusiions" about my integrity.

[peaccenicked]

From the consevative national review (my italics)
No POWs
Unlawful combatants, American law, and the Geneva Convention.



By Ronald D. Rotunda, professor, University of Illinois College of Law
January 29, 2002 11:00 a.m.


The United States says that the prisoners held in Cuba are "unlawful combatants," not prisoners of war. Some critics treat this as all word play. There is a war, they became prisoners, and that makes them POWs, right? Wrong. Whatever one thinks of the way we treat detainees (the news has reported that some have no complaints while others repeatedly threaten to kill their guards), one cannot argue that they are POWs under international or American law.

First, let's turn to American constitutional law. In Ex Parte Quirin (1942), the Supreme Court upheld the jurisdiction of a military commission that convicted German saboteurs who landed in the United States to commit acts of war. The Germans trained them in the use of explosives and other sabotage techniques. They buried their German Marine Infantry uniforms immediately upon landing. The Supreme Court said that the soldiers thereby became "unlawful combatants . . . subject to trial and punishment by military commission for acts which render their belligerency unlawful."

Seven of the eight soldiers were born in Germany while one was a United States citizen. All eight, who had lived in the United States, returned to Germany between 1933 and 1941. The United States did not treat the saboteurs as POWs. Instead, it treated them as "unlawful combatants," tried them by military tribunal, and executed most of them.

The end of World War II saw more military tribunals. There was, of course, the multinational Nuremberg war-crimes tribunal, but there were many more national war-crimes tribunals. Nuremberg handled about 200 cases but the United States Army Judge Advocate prosecuted another 1,600 war-crimes defendants. French and British tribunals had their own military tribunals.

Now, let's turn to international law. Both Afghanistan and the United States ratified the third Geneva Convention of 1949, which sets out basic protections for POWs, but they must be "lawful combatants" for the treaty to apply.

The Geneva Convention sets out four key preconditions. First, the soldiers must be part of an organized command structure, so that leaders can be held responsible. Second, the soldiers must wear fixed distinctive emblems visible from afar — so that the other side can avoid killing civilians without fearing attack from disguised fighters. Third, the soldiers must carry arms openly. Fourth, the other side must respect for the laws of war, for example, by not taking hostages.

Al Qaeda repeatedly violated these preconditions before, after, and during the Sept. 11 attacks. The al Qaeda terrorists target civilians; they do not wear uniforms; they do not carry arms openly; they take hostages (such as the hostages they took when they hijacked the four airplanes on Sept. 11). The Taliban leadership harbored, aided, and abetted Osama bin Laden and al Qaeda in their violations of the laws of war, and al Qaeda, in return, financed the Taliban. The Taliban soldiers, or many of them, committed war crimes, such as hiding weapons in mosques, and using their own people as human shields.

The Geneva Protocol allows non-state belligerents to secure protected treatment under the protocol. They just have to file a declaration with the Swiss government accepting the obligations of the protocol. When al Qaeda does that, then it will receive the benefits of POW status.

Some people argue that we should treat war criminals as POWs so that terrorists will be nicer to our citizens. Or will al Qaeda see this as more weakness by a paper tiger? Does al Qaeda respect strength or weakness? However you answer these questions, realize that if we treat the Cuban prisoners as POWs we will be giving them something to which they are not entitled under international or American law.

Of course, whether or not we treat the detainees as POWs, they should have trials and these trials should be fair. If the government cannot prove that a defendant has violated the Geneva Convention or the laws of war, he should be set free. In deciding these issues, there are those who say that it is crucial that the United States has not "declared" war. Not so.

The Constitution gives to Congress the sole power to "declare" war. The Founders specifically rejected a proposal that only Congress could "make war." The last declared war that the U.S. fought was WWII. The Korean War, the Vietnam War, etc., were never declared. The Civil War, the bloodiest war in U.S. history, was never declared.

The framers — and international law at the time — understood that one does not need to "declare" war in order to fight in a war of self-defense. Only aggressive war need be declared, and the U.N. treaty outlaws that. Under the historical view of the war power, there was no need to declare WW II (although we did so). Nor was there any need to declare the Gulf War, because a state, like Kuwait, always has the right of self-defense, and it can ask other states for assistance. Under the U.N. Charter, we could assist Kuwait because we had no intention of waging an aggressive war. And under the U.N. Charter we also have the right to defend ourselves when subjected to acts of war, like the attacks of September 11th."

Either reagan lives is a liar or he is misinformed.
Article 5 has clearly been evaded by the administration.

There cleary is a dispute within the UN
GENEVA (Reuters) - U.N. human rights chief Mary Robinson said Wednesday the 50 Taliban and al Qaeda fighters being held at a U.S. Navy base in Cuba were prisoners of war and entitled to the protection of international law.

Robinson said most legal experts disagreed with Washington's view that the fighters were ``illegal combatants'' and therefore not protected by the Geneva Conventions on prisoners rights.

``The situation is complex (but) ... the overwhelming view of legal opinion is that they were combatants in an international armed conflict,'' the United Nations High Commissioner for Human Rights told reporters.

``Their status is defined and protected by the Geneva conventions of 1949 -- they are prisoners of war,'' she said.

Robinson added that if there was any doubt about their status, the Geneva protocols -- which the United States has signed -- called for the question to be decided by a tribunal.

Human rights groups have already expressed outrage at the fact that prisoners were shackled, handcuffed and blindfolded for the flight from Afghanistan to the camp at Cuba's Guantanamo Bay, where they are locked up in outdoor cages.

Robinson, a former President of Ireland, expressed concern about the conditions under which the detainees were being held.

``We are very concerned and are seeking to ascertain more information,'' Robinson said.

Although Washington says the prisoners -- the first of several hundred captives due to be flown out of Afghanistan -- are not entitled to the full protection of the Geneva protocols, it says that they are being treated humanely.

Robinson repeated that the September 11 attacks in the United States were a crime against humanity and that the perpetrators must be brought to justice, but said it was essential that existing international human rights norms and standards be respected.

The detainees were captured in a U.S.-led military campaign in Afghanistan that swept from power the hard-line Taliban rulers as punishment for harboring al Qaeda leader Osama bin Laden, accused by Washington of masterminding the September 11 attacks.

Article 5 is clear on what the Law is in the case of a dispute, a "competent tribunal ''
A pertinent article
http://www.counterpunch.org/blockprisoners.html


(Edited by peaccenicked at 6:56 pm on Feb. 1, 2002)

[Moskitto]

Well obviously they shouldn't be put in Plaza's.

*Remembers St Catharines Plaza, Sanai"

But then again they shouldn't be put into medieval style oublietes. There just needs to be the right balance, that's all.

[Supermodel]

WOW!!! Fascinating debate...peace you brought up to very differing points of view.

BTW, Che would have shot them all in the head by now. Just a thought.

[pastradamus]

This debate is class thanx comrads for your post's.

"So you can kiss my black assssss,the white house,it aint my house,so you can burn the muthafucker down for all I care,cuz these shirts and kahki's is all I wear"
-eric "eazy e" Ryder,"niggas my height dont fight"-

[peaccenicked]

NB Reaganlives checked the posts but did not dare comment. Ha ha

[reagan lives]

My silence was due to the fact that I made an error, for which I apologize. My error was that I operated on the presupposition that peacenick knew what he was talking about. I assumed that if he was using the Third Geneva Convention to support his argument, the Third Geneva Convention must have been the one that made the provisions for prisoners like those at Guantanamo. I was incorrect. The Third Geneva Convention, which was ratified in 1949, outlines the criteria that I described earlier. Needless to say, the prisoners at Guantanamo are not covered by this convention. Read it if you don't believe me. So we're all morons...your UN "High Commisioner" for not reading her own conventions, you for listening to her, and me for getting sloppy because I thought that you would be a little more careful. Mea culpa.

[peaccenicked]

The Third 1949 Geneva Convention
was ratified by both America and Afghanistan.
Where did Mary Robinson go wrong.
United States Refuses to Abide by Geneva Convention

On January 11, 2002, the United States announced that it was refusing to abide by the 1949 Geneva Convention on the treatment of prisoners of war in its treatment and internment of those taken prisoner in Afghanistan or Pakistan by the United States. The Third Geneva Convention, which provides specific guidelines for treatment of prisoner combatants, is a part of the "law of nations" and is a mainstay of international humanitarian law. The United States explained that the prisoners were not actually prisoners of war, but were in fact "unlawful combatants."

The first prisoners arrived in the U.S. base at Guantanamo Bay, Cuba on January 11, 2002. According to the Washington Post, prisoners were hooded and shackled during the 27 hour flight. The United States defended these practices as appropriate security measures. Media on site in Cuba reported that the prisoners were fitted with goggles that were blacked out, for "security reasons" necessary to prevent them from using their eyes. In a public letter to Donald Rumsfeld , Amnesty International expressed concern that the prisoners' conditions of transport violated international norms.

The prisoners are being housed in outdoor 6 foot by 8 foot open-air chain link cages, with concrete floors, wooden roofs and containing a mat and a plastic bucket.

The U.S. demanded that media not show photographs of the prisoners in these conditions, explaining that the photos would deprive the prisoners of their rights under the Geneva Convention. According to a Pentagon spokesperson, any photographs of the prisoners in the United States imposed conditions would be "humiliating" and "debasing." Several outlets have not complied with the Pentagon's demand.

The Bush Administration's refusal to abide by the world's humanitarian laws stands in stark contrast to the justifications advanced for U.S. military actions. On September 20, 2001, in a televised speech, George W. Bush justified the waging of war as necessary to defend the values of "civilization" against "evil": "This is not, however, just America's fight. And what is at stake is not just America's freedom. This is the world's fight. This is civilization's fight. " On November 8, 2001, in his prime time speech to the nation, President Bush declared the bombing of Afghanistan to be "a war to save civilization itself."

Article 4 of the convention defines the categories of persons who may be considered as "prisoners of war." According to Article 5 , "should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." No competent tribunal has adjudicated such matter.

Among the provisions of the Third Geneva Convention regarding humane treatment of prisoners of war, that the U.S. is refusing to apply, are:

Article 13:Humane treatment required; No reprisals allowed
Article 14: Respect for persons and honour; No gender discrimination
Article 16: No discrimination based on race, nationality, religious belief or political opinions Article 17: No physical or mental torture; No coercion to obtain information; Prisoners who decline to provide information may not be threatened, insulted or exposed to unpleasant or disadvantageous treatment
Article 18: Clothing, articles of personal use, to remain with prisoners
Article 20: Evacuation or transfer to be under same conditions as afforded Detaining Power
Article 21: Internment in camp allowed; Close confinement prohibited
Article 22: Internment in penitentiaries prohibited; Every guarantee of hygiene and healthfulness required
Article 25: Condition of quarters must be as favorable for POWs as for the forces of the Detaining Power; Accommodations for habits and customs of POWs required; Protection from dampness, adequate heat and lighting required
Article 26: Food must be in sufficient quantity, quality and variety to maintain good health and weight
Article 27: Adequate clothing, underwear and footwear required
Article 28: Canteens must be installed; Fairly priced food, soap, tobacco and ordinary items must be stocked
Articles 29 - 32: Proper hygiene and medical attention, including monthly health inspections, required
Articles 34 - 37: Prisoners must be afforded complete latitude in the exercise of religion, including attendance at services, on condition they comply with disciplinary routine
Article 38: Provisions for physical, intellectual and recreational activities
Article 70: Prisoners must be allowed to write to family, others

Issued by: The Emergency Campaign to Defend Dissent
and Advance Civil Rights, a project of the Partnership
for Civil Justice LDEF, http://www.Civil-Rights.net .

[Nateddi]

This should be in the current issues forum. (or are right-wingers not allowed there?)

[reagan lives]

Alright, smart guy. Tell me which one of the following criteria the prisoners fit:

"Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(B) that of having a fixed distinctive sign recognizable at a distance;
© that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war."

[Moskitto]

Are you talking about the Taliban as militias? If so, they fit C), A) and you could argue they fit B) and uncover double standards in relation to D).

A) Mullah Omar is the leader of the Taliban
B) You could say that the Afghans probably know what a Taliban looks like, otherwise you could just say "ignorance is bliss."
C) Yeah, I think it's pretty clear when someone's carrying a rifle and marching towards you.
D) Well you could get into a big arguement about other armies that have violated the rules of war, but I won't.

[peaccenicked]

"One problem is, when the Geneva Conventions were drafted there was an assumption you're either in the army or not," Hannum said. "I don't think when they were drafted they foresaw this never-never land of guerrillas and terrorists."
The section you quote is under medical provisions
for the sick and wounded
The point I have been trying to make all along
is that the US admin have avoided article 5
which is about disputed status of prisoners.

[reagan lives]

I agree that the Geneva Conventions don't account very well for guerrillas. Nobody disputes that. But you cannot say that the US is "in violation" of the Geneva Conventions based on what you think the Geneva Conventions *should* include. The section I quoted was from Article 4, which begins "Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy."

The crux of the argument is the selective reading of you and Mary Robinson. Article 5 says:
"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

You clearly read this as saying, "all people shall be treated as prisoners of war until a competent tribunal declares them otherwise." Can you see how biased that reading is? The clause starts with the phrase "should any doubt arise." No doubt has arisen. The Guantanamo prisoners don't even come close to fitting the criteria.

[peaccenicked]

Colin Powell then is obviously is just kind hearted
and doubts did not arise here

Court challenge to US detentions


The US denies it is violating human rights

The first legal challenge to the detention of America's captives from Afghanistan at a naval base in Guantanamo Bay is set to be heard in a Los Angeles court.


Someone should be asserting their rights under international law

Petitioner Erwin Chemerinsky

The challenge, which has been filed by a number of civil rights activists, demands that the US Government brings the suspects before a court and defines the charges against them.

Backed by a former attorney-general, it alleges that the prisoners are being held in violation both of the Geneva Convention and American law.

Stephen Yagman, the civil rights lawyer bringing the action, said the case would force the Bush administration to clarify the men's status.

Alarm

The legal action follows mounting international alarm at the detainees' treatment.

US District Court Judge Howard Matz had scheduled a hearing for 0800 (1600 GMT) on Tuesday on the activists' case.





Buckets for toilets
Thin foam mattresses
Beards shaved
Clickable guide: Inside Camp X-Ray



He will have to decide whether a US District Court has jurisdiction over prisoners in Cuban territory leased to the US Government, and whether a case brought by LA-based petitioners - a coalition of clergy, professors and civil rights lawyers which includes former US attorney general Ramsey Clark - is valid.

US Defence Secretary Donald Rumsfeld said on Tuesday that the US was treating the foreign prisoners "humanely", and in accordance with international conventions.

"No detainee has been harmed. No detainee has been mistreated in any way," he added.

The leader of the International Red Cross delegation which has been visiting the prisoners, has said he has had good access to them.

Urs Boegli said he had been able to shake their hands and offer them a biscuit and a cigarette.

Mr Boegli declined to comment on the prisoners' condition, but said a team would stay in place to continue monitoring their treatment.

American Taleb

The man people are calling The American Taleb, John Walker Lindh, is due to arrive in the US within the next day or two.

Mr Walker was being held on the US warship Bataan in the Indian Ocean, but he has now been moved to Kandahar in southern Afghanistan.

From there he will be flown to the US to face trial on charges of conspiring to kill US nationals and providing support to the al-Qaeda terrorist network.

EU pressure

America refuses to afford the detainees at Guantanamo Bay the status of prisoners of war, which would grant them rights under the Geneva Convention.

But the European Union has said the US Government must treat the suspected al-Qaeda and Taleban fighters held at its base in Cuba as PoWs.



A sign points the way to Mecca to help the prisoners pray


There was outrage in Europe after the prisoners were photographed wearing orange jump suits, shackled and kneeling, with goggles over their eyes and masks over their mouths and noses as they arrived at the base.

The International Committee of the Red Cross (ICRC) said on Monday that America might have violated the convention by distributing pictures of the prisoners, which were published by media outlets worldwide.

Correspondents say that what worries Washington the most is that if the detainees were classed as PoWs, the Geneva Convention would entitle them to refuse to give their interrogators any information other than their names, ranks and serial numbers.




(Edited by peaccenicked at 11:53 pm on Feb. 2, 2002)

[peaccenicked]

American judge proves Reaganlives wrong again
'PoWs or common criminals, they're entitled to protection'

Judge Richard Goldstone, international human rights expert, tells Clare Dyer why al-Qaida suspects must not be tried in secret

Wednesday January 30, 2002
The Guardian

Judge Richard Goldstone is a worried man. What's troubling him is America's response so far to the atrocities of September 11. The way the US deals with the captives of its war on terrorism, he believes, will be crucial to preserving the fragile coalition put together for a battle the superpower, for all its might, will not be able to fight alone. And behind his concerns is a fear that America's reaction to the loss of belief in its invulnerability could even damage the edifice of international humanitarian law built up in the aftermath of the second world war and the Holocaust.
For a start, he says, the US administration has no authority to declare by "fiat" that the detainees at Guantanamo Bay are not prisoners of war. And the "very surprising and very disappointing" proposal to try them by military commissions or tribunals would strip them of many of the safeguards of a fair trial. "All of the due process for which the Americans have always fought and criticised others for not adhering to are not included."

Goldstone is a voice who commands attention wherever issues of international human rights law and war crimes are debated. The first chief prosecutor at the war crimes tribunals for the former Yugoslavia and Rwanda, he now sits as a judge in South Africa's highest court, the constitutional court, and is tipped to be the first president of the international criminal court when it gets off the ground next year.

His latest role is as head of a task force on international terrorism which began its deliberations this month. Set up by the International Bar Association, representing lawyers in 182 countries, it will look at how to tackle the new scourge of global terrorism, ensuring national security and the safety of citizens without throwing civil liberties overboard. The Labour peer Helena Kennedy, one of seven experts from seven countries who sit on the task force - including a former ambassador from Argentina and a police chief from Sweden - says its proposals might be the first step towards a new international convention on terrorism.

At the moment, the US seems to be inventing the rules as it goes along. Understandably, the administration does not want to label the detainees as prisoners of war. Under the Geneva Conventions, this would protect them from interrogation by their captors, frustrating the main object of their detention. But Goldstone dismisses defence secretary Donald Rumsfeld's categorisation of the captives as "unlawful combatants".

"It's not a term recognised by international law. They get it from the US supreme court, in a case in 1942 which dealt with six German spies who were landed in civilian clothes by a submarine on Long Island. They were captured before they committed any criminal offences in the United States and Roosevelt didn't want to treat them as prisoners of war or as common criminals. The US supreme court invented this category of unlawful combatants and they were tried by a military commission and executed. But that case is really no precedent at all because the US was officially at war with Germany. The al-Qaida people don't come from a country with which the United States is at war."

He also points out that the US had no authority under international law to transfer the detainees from Afghanistan to Cuba. "I just don't understand the legitimacy of simply forcibly taking them out of Afghanistan without an extradition order and flying them off to a third country and interrogating them."

The Geneva Conventions say that those captured in war are presumed to be prisoners of war until an independent tribunal declares what their true status is. According to a leaked memo, secretary of state Colin Powell wanted each detainee to have his status declared by a military judge, but was overruled.

As it happens, Goldstone thinks it "unlikely" that the Guantanamo Bay detainees are prisoners of war. The convention allows irregular soldiers to be treated as POWs, but only if they fulfil certain criteria, including wearing an insignia and obeying the laws of war. But that, he says, is not for the US administration to decide. He believes - as does Kennedy - that the captives should be treated as ordinary criminal suspects.

"If they're not prisoners of war, they're simply common law criminals. In either case, they're entitled to some sort of due process. As prisoners of war, they're entitled to some protection, As ordinary common criminals, under the US constitution, they've got even better protection." As criminal suspects, they would have rights not to incriminate themselves, to be tried in open court by an independent tribunal under strict rules of evidence, with an appeal to a higher court. None of these safeguards would apply under the procedure outlined by President Bush, which amounts to "anything other than a fair trial", says Goldstone.

Under proposals unveiled by Bush in November, the military tribunals - which hark back to the much-criticised "victor's justice" imposed on the German and Japanese prisoners accused of war crimes after the second world war - would be made up of serving military officers. Suspects could be interrogated and their evidence used against them, and trials could be held in secret with evidence, such as hearsay, which would be inadmissible in a US criminal trial. Conviction would be by a two-thirds majority and the death penalty could be imposed by the same majority. There would be no right of appeal to any court.

Even Wes Pruden, editor-in-chief of the conservative Washington Times, declared that the plans "insult centuries of American law and justice, and the ancient canons of Anglo-Saxon common law from which American law and justice proceed."

The US government is expected to announce soon whether it has had second thoughts about any of these provisions. Goldstone sees hope in the way the Americans have moved in the past 10 days to be seen to provide humane treatment for the prisoners after an outcry in Europe over photographs of the bound, shackled and gagged captives taken shortly after arrival.

The administration, he notes, has also rowed back slightly on the rules for trial by military tribunal: it's now proposed that the death penalty will require an unanimous verdict, not a two-thirds majority. "I've little doubt that public opinion was the reason they backtracked."

The Geneva Conventions provide for prisoners of war to be tried by the same courts martial which try members of the captor country's forces. Goldstone says: "I've got no objection to a military court, but it must have fair process, and the ordinary American courts martial do. I think it's objectionable that sitting members of the army subject to army discipline would preside [in the military tribunals]. You can imagine the pressure on them to render decisions that will be popular with their commanders." Ordinary courts martial, he says, are not presided over by "people who are looking after their careers". Nobody could reasonably object, he says, if the US decided to try the detainees in its own domestic courts, but the administration seems to have ruled that out for security reasons.

His own preference would be for an ad hoc international tribunal, like those in the Hague and Rwanda. Suspects have been picked up in Britain, Spain, Australia and Germany and it would be "messy and inappropriate" to have trials in different countries, all arising out of the same events.

The international criminal court, had it been in existence, would have been an ideal forum, but its remit is not retrospective. The US has refused to sign up to it, apparently afraid that its own troops could be hauled up before it. But Goldstone is confident that the court will get the support of the 60 nations it needs this year. He thinks the experiences of September 11 have increased the chances that the US will eventually come on board.

'I gave a talk in November on the international criminal court at the National Defence University, the army's university in Washington, and it was surprisingly well received. Attitudes have changed. The Americans at least now see some reason for joining the world." He doesn't expect them to sign up to the ICC in the immediate future but thinks the chances are good in the long run. "I think it's going to depend on how the court performs, and I'm convinced it's going to perform in a professional, even-handed manner."

For the al-Qaida and Taliban detainees in Cuba, he argues, trial by an international tribunal "would be important to demonstrate their guilt credibly for the international community, particularly in the Islamic world. Clearly, secret trials held in Guantanamo Bay are hardly going to achieve that. It's difficult to put oneself in the position of victims, but I would imagine the victims of the World Trade Centre attack would also want guilt to be established in an appropriate fashion."

The US is "creating a very bad precedent" which could boomerang on it in the future, he maintains. "A result could be other countries in the future treating United States citizens in this way. Imagine how the United States would feel if their troops were picked up in Afghanistan and flown for trial to Iran before some secret commission, facing a death sentence."