British to turn over prisoners to Afghans

Washington Post
April 30, 2002
By Bradley Graham

Britain has decided to treat al Qaeda and Taliban fighters captured by its forces in Afghanistan as prisoners of war and turn them over to the interim Afghan government, underscoring differences between Britain and the United States over how to deal with the captives under international law.

Briefing reporters on the decision yesterday, British representatives said it was driven largely by practical considerations, notably the lack of sufficient ground forces in Afghanistan to conduct legal hearings for case-by-case judgments about the appropriate status of individual prisoners.

But by planning to surrender captives to Afghan instead of to U.S. authorities, the British government signaled lingering reservations about the Bush administration's approach. It put the United States at odds with its closest ally in the war on terrorism and could complicate efforts by U.S. authorities to interrogate and prosecute al Qaeda or Taliban fighters captured by the British.

The administration also was further isolated in its policy to classify the detainees as "unlawful combatants" rather than as prisoners of war under the Geneva Conventions. Under the policy, the administration has placed hundreds of prisoners in indefinite detention without charge and is preparing to prosecute some before military tribunals.

The policy has drawn sharp objections from human rights groups and some foreign governments for flouting international law.

"The British make the point that they'll be holding their prisoners only temporarily," said Michael Noone, a professor of international law at Catholic University. "That makes a lot of sense and will create a problem for the United States in justifying its interpretation of the Geneva Convention."

Britain's plan to turn over prisoners to Afghan authorities contrasts with the policy of another major U.S. ally, Canada, whose troops in January transferred three detainees to U.S. custody.

The British decision was prompted by the arrival in Afghanistan this month of 1,700 British troops to assist U.S. forces in the hunt for Taliban and al Qaeda fighters. Although the British have yet to capture any enemy fighters, the likelihood of doing so is increasing as they join U.S. troops in a new sweep through rugged terrain in eastern Afghanistan bordering on Pakistan.

"As a matter of policy it's been decided that every detainee we take will be treated as a prisoner of war under the Geneva Convention," an unidentified British official told reporters yesterday at Bagram air base north of Kabul, the Afghan capital. "We believe our interpretation is correct, and I'm sure the Americans believe theirs is correct."

The British position does include some leeway for exceptions, particularly if al Qaeda leader Osama bin Laden or one of his top lieutenants is captured, British officials said, although just what would happen in such cases was unclear.

Some officials noted that in all likelihood, the capture of bin Laden or other senior al Qaeda figures would be accomplished with at least some U.S. military involvement. The fate of enemy fighters captured during joint U.S.-British operations would be left up to the highest person on the chain of command, presumably an American, the officials said.

Official U.S. reaction to the British decision was reserved. Military and administration spokesmen sought to place it in the best possible light and portrayed it as Britain's alone to make.

"The Brits did talk to us before they announced their approach," a senior administration official said. "And we have no problem with it. We all have the same goal, which is to bring terrorists to justice, although the approaches may differ."

The administration's own efforts to craft a prisoner policy have been troubled from the start. Originally, President Bush decided in mid-January to deny the captives coverage under international conventions and not declare them prisoners of war.

A month later, he reversed himself -- at least in principle -- declaring that the Geneva Conventions did apply to members of Afghanistan's vanquished Taliban militia. But in practice, administration officials said, all Taliban as well as al Qaeda captives would be considered "unlawful combatants" not entitled to formal POW status and prisoner rights under the conventions.

While the conventions call for legal hearings for captured combatants whose legal status is ambiguous, administration officials made clear they considered such hearings unnecessary.

U.S. authorities maintain that captives in American custody are being treated humanely and are receiving most of what would they would be eligible for as formal prisoners of war. The United States is holding about 300 terrorist suspects, all flown in from Afghanistan, at its Navy base at Guantanamo Bay, Cuba, and 255 in Afghanistan, most of them in the southern city of Kandahar. A smaller number are being held at Bagram.

The question of turning prisoners over to the United States has sparked controversy in Britain, primarily because of British opposition to the death penalty. Some British lawyers argue that, under the European Convention on Human Rights, which Britain has signed, it would be illegal for British soldiers to transfer captives to the United States without a U.S. pledge not to execute them.

Several British officials yesterday sought to play down U.S.-British differences, noting that like the United States, Britain had decided not to accord captives POW status but only treat them as POWs. But the anonymous British official who spoke to reporters in Bagram made clear that a fundamental difference exists in legal regard for the captives.

"We believe it is not clear whether they are legal or illegal combatants, whereas the U.S. has taken the view that they are illegal combatants," the official said.

Under the Geneva Conventions, a country that transfers a war prisoner still has responsibility for ensuring proper treatment of the prisoner. British officials said they had received assurances from the Afghan interim administration that prisoners would be properly treated.

Correspondent T.R. Reid in London contributed to this report.

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