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Wednesday, 27 February, 2002, 17:37 GMT
Camp X-ray: The legal options
Nuremberg trials of Nazi war criminals, 1946
Opponents of secrecy cite the Nuremberg trials
BBC News Online considers what will happen to the Taleban and al-Qaeda fighters who have been imprisoned by the US.

US Defence Secretary Donald Rumsfeld has said six options are being considered. Click on the links below to read more.

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The Pentagon is drawing up guidelines for military tribunals under presidential decree.

The idea of the tribunals was to put the suspects on trial faster and in greater secrecy than an ordinary criminal court.

But they have been widely criticised by human groups and some of Washington's close allies, who fear that suspects would lack the legal protections offered in criminal courts and that trials might be conducted in secret without outside scrutiny.

Details of how the tribunals would function have not been released, but their legality is anyway debateable.

One of the Geneva Conventions states that "The Occupying Power (and the US could claim that status in relation to Afghanistan) may try accused persons before its own tribunals but no sentence may be passed without regular trials".

Some of the features of a "regular trial" - such as the right of a defendant to appoint his own lawyer and for proceedings to be held mainly in public - may possibly be met.

But whether a military commission set up by executive order can possibly guarantee the independence and impartiality of a regular trial is another matter.

International lawyer Karim Khan told BBC News Online that the proposed tribunals fly in the face of international law and the Geneva protocols.

"The rule book has been thrown out of the window to a large extent," said Mr Khan, who is a former prosecutor at the Hague and is currently defending alleged war criminals in East Timor.

He also criticised the US's refusal to grant the detainees prisoner of war status, saying under the Geneva Convention even unlawful combatants must be given fundamental rights.

"It is a nonsense to say that as 'unlawful combatants' the [detainees] have no rights," he said.

The US has said the Geneva Convention applies to Taleban soldiers, but not al-Qaeda fighters.


So far only one of the detainees from the Afghan war - the US suspect John Walker Lindh - has been granted a civilian trial.

This gives the defendant the right to be told of the prosecution's charges and evidence, the defence of his choice, and protection against self-incrimination.

Civilian trials must also be open to the public and defendants have the right to appeal.

If convicted as indicted, Mr Walker could be jailed for life. And US officials have not ruled out further charges, including treason which carries the death penalty.

Mr Walker has been granted a civilian trial because of his US citizenship.

If other defendants were tried in an open court, US officials fear that pictures or information from the proceedings would be twisted by supporters or sympathisers of the Taleban, and used as propaganda against the US.

However, international barrister Karim Khan argues that it is in fact in the US interests to try all prisoners in open session.

"Closed sessions risk making martyrs over individuals, endangering the US's own soldiers in retaliatory trials, and most of all give huge scope to revisionists," he said.

He cited the example of the Nuremberg trials, which help prevent revisionists from denying the Holocaust took place.


Suspects could be brought before regular military tribunals, usually reserved for courts martial.

These are less controversial than the military tribunals being proposed under presidential decree, as they are governed by well-established procedures.

Such defendants also have the right to legal representation, and the burden of proof is beyond reasonable doubt.

However, military tribunals generally apply only to US soldiers, and if the suspects are charged with a serious offence - such as rape or murder - then they should be tried in a criminal court.

Most countries would try war crimes suspects at an international court or international war crimes tribunal - but the US is one of the few countries which has not agreed to an international court.


The Pentagon has said that in most cases it would like to send suspects back to their own countries, if prosecution can be guaranteed.

However, legally the US cannot stipulate how other countries should conduct their trials.

The UK, for example, has an independent prosecution service, and cannot say whether suspects will be prosecuted before its courts have seen the evidence and made charges.

The European Convention on Human Rights stipulates that suspects should have access to an "independent and impartial tribunal".

Human right groups are also concerned that trials are fair in countries such as Saudi Arabia and Pakistan, and are not used as political showcases.


The US has said it is also considering detaining the prisoners indefinitely.

This would be against international law, according to barrister Karim Khan.

Prisoners of war are only allowed to be detained until the end of a conflict, at which point they must be either charged or released.

However, the US has made it clear that its so-called war against terror is ongoing, and may never end.

US Defence Secretary Donald Rumsfeld has said he does not want the detainees to be able to "get in more airplanes and have them fly into the World Trade Center again".

The US in any case does not recognise the suspects as prisoners-of-war - because, it says, they had not carried arms openly or been part of a recognisable military hierarchy.


If the US fails to find any evidence of war crimes, the prisoners should be released according to international law.

If their home countries wanted to prosecute them for other charges, the US would consider handing over the suspects - but it would depend on its extradition treaty with the country involved.

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US Attorney General John Ashcroft
"The regulations establishing them are not yet formulated"

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See also:

14 Nov 01 | Americas
26 Oct 01 | Americas
28 Jan 02 | Americas
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