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Wednesday, 16 January, 2002, 13:06 GMT
Q&A: Al-Qaeda prisoners' rights

US officials insist the al-Qaeda detainees in Cuba are not prisoners-of-war under the Geneva convention. News Online looks at the prisoners' legal rights.

Why are the detainees being taken to Cuba?

The detainees - who are not all Afghans - are being taken to Cuba for interrogation in a secure environment. Afghanistan itself is deemed unsuitable because the American facilities there are inadequate.

The detainees are being taken to a place outside of United States territory to minimise the application of legal constraints that might otherwise apply.

What is their status under international law?

The US insists that the detainees do not qualify for prisoner-of-war treatment under the Geneva conventions, because they are not members of the regular Afghan armed force - nor do they meet the criteria for prisoner of war status for voluntary forces.

These criteria include wearing a uniform and carrying arms openly. Whether the US view on this issue is correct depends on the particular situation of each individual detainee.

What does this mean for the detainees?

If the detainees are not legally prisoners-of-war, then they are not entitled to various protections provided by the Geneva conventions. In particular, they are not entitled to visits by the International Committee of the Red Cross.

Also, certain restrictions on interrogation of prisoners-of-war, contained in the Geneva conventions, will not apply.

Do they have any other safeguards?

Yes. The detainees are protected by the general international law of human rights, which is binding on the US. This requires humane conditions of detention and fair trials in the event of prosecutions.

It is also possible that American courts will, in due course, provide some safeguards on the basis of American constitutional law.

What sort of trial do they face?

It is not clear yet whether trials of any kind are envisaged. It might be that the detainees will be held for interrogation only, or held on a preventive detention - or similar - basis.

Another possibility is trial by an American military commission constituted by the US. This would probably involve trial for violations of the laws of war, but it might encompass other charges as well.

There might also be ordinary criminal prosecutions of individuals allegedly involved in the 11 September attacks.

If found guilty, what happens?

Those found guilty will be sentenced by judges in the ordinary manner, according to the penalties set out in the laws that they were convicted of violating.

Depending on the particular charges, the death penalty may be available.

From convictions by both ordinary courts and military commissions, there will be possibilities of appeal.

Will the American Taleban member, John Walker Lindh, be tried by a military tribunal?

No, John Walker Lindh will be tried by a civilian criminal court in the United States - the District Court in Alexandria, Virginia, following President Bush's decision that only foreign nationals, not US citizens, will be sent to military tribunals.

He will be charged with conspiring to kill American citizens abroad and aiding Osama Bin Laden's al-Qaeda terror network.

If found guilty of the charges, he could face life imprisonment. A military trial could have ended with a death penalty.

A similar case has arisen with an Australian Taleban fighter who is being held in Cuba.

Australian Defence Minister Robert Hill has called for him to be tried in Australia under Australian law. So far, there has been no public response from Washington.

See also:

14 Jan 02 | Americas
New captives arrive on Cuba
14 Jan 02 | South Asia
Harsh detention for Afghan prisoners
15 Jan 02 | UK Politics
Straw's concerns for Cuba captives
28 Dec 01 | Americas
Destination Guantanamo Bay
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