Treatment of War Prisoners: When Does Law Apply?
STEVE INSKEEP, host:
The allegations about secret prisons and the abduction of suspects raise a number of legal questions which we're going to pursue with Hurst Hannum. He's a professor of international law at the Fletcher School at Tufts University of Massachusetts.
Welcome to the program.
Professor HURST HANNUM (Fletcher School of Law and Diplomacy, Tufts University): Thank you for having me.
INSKEEP: Let me start with secret prisons. Is there a way that it could be perfectly legal for the United States to take people and hold them somewhere in Eastern Europe?
Prof. HANNUM: Unfortunately, there's not an easy answer. Certainly the European countries in which they're being held are under legal obligations not to allow secret prisons and incommunicado detention. The question is what authority the US is exercising over there and whether the various international law norms that bind the US operate outside the United States territory as well as inside the US territory.
INSKEEP: Well, what laws govern this?
Prof. HANNUM: Again, I would it were--there were an easy answer. There are two possible sets of laws. One is human rights law; the other is the laws of war--humanitarian law, the Geneva Conventions. The Geneva Conventions only kick in if there is an armed conflict of some sort. Human rights law applies in all other cases. Under neither body of law is it permissible simply to kidnap someone and keep them in secret indefinitely.
The US position, as best as I can understand it, is, in effect, that no law applies because this is a different kind of war not covered by the Geneva Conventions and because it takes place outside US territory.
INSKEEP: What are the basic things that you have to do in order to legally hold a suspect if you assume that international law applies?
Prof. HANNUM: Well, if the international law of human rights applies, for instance, which would apply to Romania or to Poland, two of the countries that are accused of allowing these secret prisons to take place, the normal criminal law of rules would apply. You arrest someone, you charge them, you try them under a fair procedure. Now under human rights law, there's a recognition that emergencies happen, wars happen. And therefore you can suspend certain rights the way the British did in Northern Ireland for many years in order to combat the IRA for instance. And under these circumstances, it might be permissible to detain someone without a trial for a longer period of time. But even then, the key is that somebody has to know these people are there and there has to be some sort of oversight. Under international human rights law, it's simply not permissible for a government, any government, to pick someone up and keep them incommunicado forever, even under emergency or extraordinary circumstances.
INSKEEP: Are you saying that by definition, you can't hold people in secrecy?
Prof. HANNUM: You can't hold people in secrecy forever. The notion that you can keep people for months or in the US case even years without any indication of when or under what circumstances they will be released I think is untenable under either the various treaties to which we're a party or under what's called customer international law, which is law that binds every state no matter where it's acting.
INSKEEP: Let's move on to the question of rendition, grabbing suspects and moving them to various places. It's now being argued that some German officials knew that the United States grabbed a German citizen and whisked him away to Afghanistan in a case that's gotten much attention in recent days. Does that get the United States off the hook legally if the host country agrees to let that happen?
Prof. HANNUM: Well, the host country can't agree, for instance, to genocide or slavery or torture. The host country can't waive all of the rights of its citizens just because it finds that it's convenient. What's probably more significant here is the political reaction within countries like Germany or Poland, if their citizens know that this sort of cooperation is going on. It may be that they think anything is permissible in the war on terror. I hope that's not the case and it's certainly not the way in which human rights standards were developed, which were developed not just to operate in peacetime but to operate even under extraordinary circumstances.
INSKEEP: Hurst Hannum is at the Fletcher School of Law and Diplomacy at Tufts University.
Thanks very much.
Prof. HANNUM: You're welcome.
RENEE MONTAGNE (Host): You can read about how the laws governing war and torture have evolved at our Web site, npr.org.
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