Some of the things that the United States has done with its Taliban and al-Qaida prisoners have been plain wrong - to shave off the Muslim prisoners' beards, for example, is a gratuitous indignity. Other aspects of the treatment also raise a variety of doubts and may do more than that if they are allowed to continue much longer. Evasiveness about the legal status of the prisoners is one such issue, as is any long-term use of small detention cages open to the elements in which to house the detainees at Guantanamo. But the main problem with the US strategy right now is largely political. It is sending a terrible message to the rest of the world. It creates a legitimate political grievance for America's critics to stoke. It weakens international respect for agreed conventions on humane treatment. It encourages tit-for-tat. It therefore puts US and other western military personnel, including British, at greater risk of having their own rights abused if they are themselves captured in this or some other future conflict.

America's central error is its failure to have been clear and principled right from the start about how it would treat prisoners. In past conflicts such as those in the Balkans or in earlier stages of the Afghan civil war, the US has firmly supported the principle that the Geneva convention was to be honoured and prisoners were to be treated as if they were prisoners of war, even if the conflict itself fell outside the normal definition of war. The US has repeatedly upheld this position in the United Nations security council, including as recently as 1999. It even issued its troops with orders to that effect shortly after September 11. Yet, as the Afghan war has gone on, the Bush administration has muddied the waters. While some officials have continued to say that the US would continue to apply the convention - a position consistently adopted by the British government and re-echoed by Tony Blair this week - the defence secretary Donald Rumsfeld has been provocatively casual. This week, Mr Rumsfeld said the US was "for the most part" treating its prisoners "in a manner that is reasonably consistent with the Geneva convention". He then added that the US did not need to do so, because it was dealing with "unlawful combatants" with no rights under the convention.

This is an untrue claim. All prisoners have the right to a proper determination of whether they are prisoners of war under article five of the 1949 convention. The Americans may be right that some of its prisoners, especially the al-Qaida ones, are not PoWs, but that fact has to be decided by an appropriate tribunal. So far that has not happened and, until it does, the US is bound to treat the prisoners as PoWs. On this issue, Washington is in dereliction of its obligations, and its allies such as Britain must not flinch from saying so, not least in order to protect our own armed forces.

Britain is also right to insist on visits to any UK prisoners. It should insist on being able to question them independently too. But it is far from clear that Britain and any other countries whose nationals are being airlifted to Cuba actually want the inconvenience of having their own nationals repatriated for domestic trials. And it is equally unclear what charges could be levelled against them if they were. This whole process illustrates just how misguided the US has been to shun the planned UN international criminal court. But the larger truth is that this US administration is more at home with an improvised process that sometimes skirts the frontiers of legality than with international agreements that impose firm reciprocal responsibilities.


The GuardianTramp

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