Was it a war crime? The Canadian Broadcasting Corp.
The National 01/11/28

Host:PETER MANSBRIDGE: There is no doubt that what happened in Mazar-e-Sharif was a blood bath. Hundreds died, most of them foreign Taliban fighters. And now the questions have started. Was it a war crime or simply a gruesome battle? Is the United States doing enough to control the Northern Alliance? And even more important, if the rules of war are flouted in Afghanistan, what will be the consequences? Here's the CBC's senior correspondent Brian Stewart with a feature report.

BRIAN STEWART: From the start of their offensive, Northern Alliance fighters have openly boasted they'll kill foreign Taliban prisoners. It's war without quarters. Many hard core Taliban choose suicidal resistance. However, it's thought hundreds have simply been executed on the spot. But in a ruthless war against terrorism, do normal rules of conflict really apply?

LESLIE GREEN (International Law Expert): Oh yes. Oh yes. Oh yes. I mean, we're getting very close to the charges that the Hague court is bringing against Milosevic.

STEWART: Absolutely. According to Dr. Leslie Green of Edmonton, one of the world's pre-eminent authorities on war crimes. Green fought in an equally savage war against the Japanese in Burma. Later helped run war crimes trials. He says current international courts, like the Hague have made crimes against humanity and armed conflicts crystal clear.

GREEN: There's no ifs or but. Prisoners are prisoners. You do not decide whether he's legitimate or not. That is a political decision or a decision by your senior commanders. If a man is wounded, you will not harm him any further. If he has surrendered, you will not harm him. You certainly will not kill him.

STEWART: But this does appear to concern U.S. officials like Defence Secretary Donald Rumsfeld.

DONALD RUMSFELD (Defence Secretary) (November 19): We're not in a position to have people surrender to us. If people try to, we are declining. That is not what we're there to do is to begin accepting prisoners and impounding them in some way or making judgments. That's for the Northern Alliance and that's for their tribes in the south to make their own judgments on that.

GEORGE W. BUSH (President of the United States): We're operating on heightened security alert.

STEWART: The Bush administration has done little to strain the Northern Alliance. It openly speculates about preferring foreign Taliban, especially the leaders dead.

ROY GUTMAN (Editor, "Crimes of War"): I think Donald Rumsfeld somewhat overstepped the bounds of the rules as he should very well know them.

STEWART: Roy Gutman in Washington is a Pulitzer prize winning writer and co-editor of "Crimes of War", a guide to the exact legalities in conflict, including treatment of prisoners.

GUTMAN: The fact is if they are combatants, you know, and there is a definition of combatants under the law which Donald Rumsfeld should know, then they have to be treated like combatants, which means they have to be treated like surrender combats which is to say as a prisoner of war.

STEWART: There are long established rules for treating prisoners. Since the 19th century, reformers have been trying to limit the casual slaughter of earlier wars. The most profound reform came during the American Civil War when President Abraham Lincoln introduced a strict code for the treatment of civilians and prisoners. This largely influenced the first Geneva convention of 1864, the corner stone of all subsequent laws.

GUTMAN: It is what separates, if you want, civilized people from barbarians. It is to treat a prisoner as a person who's protected, who's no longer in combat against you, to give him an honour and dignity and protection and safety so that he can survive the conflict and then go back to his home side, or his home country is in fact one of the reasons that a war actually, when it ends can end with a peace agreement. If however, you massacre your prisoners, or mutilate them or mistreat them in a terrible way, then the bitterness is going to be there for all time to come and there's probably likely to be a rematch.

STEWART: Under international law, Taliban members may one day be tried for past acts, but should not be summarily dealt with. The Nuremberg war crimes trials of 1946 and additions to the Geneva convention have ruled out any justification for the killing and mistreatment of prisoners. Indeed armies are now fully responsible for the care, feeling and protection of their prisoners. But what about fear of Taliban who may try as some have to kill their captors as they commit suicide, a problem Leslie Green faced when fighting the Japanese.

GREEN: That's why you try and make sure that he's got his arms well and truly above his head and his hands are empty. There's always the danger, even with wounded personnel that they have a booby trap strapped to their body. That's one of the risks that, yes, you are faced with. And the only answer is that if you have shocked somebody how has surrendered or is wounded because you were feared, that may be one of the reasons that you put forward in your defence at your own court martial.

STEWART: Passion to avenge September the 11th runs high among U.S. troops heading into Afghanistan. But ignorance of the law will not be an excuse.

GUTMAN: Well, every U.S. officer knows the rules right up to the top, from the bottom to the top. If they don't, then that's a breach of the rules and they have an obligation to uphold the rules.

STEWART: A generation ago, scandals over war crimes in Vietnam led the U.S. to adopt some of the strictest combat rules of any army.

GUTMAN: I think trained officers who have gone through, you know, schooling and who know, who are reminded of the rules often are very aware that there's always an aftermath. And the moment you forget, you let your passions take control is the moment that you are creating real problems down the road for you and almost like, I won't say a scandal, but definitely a debate that you don't want to be part of. So it's always better for an officer to follow the rules and they know that.

STEWART: But others worry vengeance hungry troops may listen to the sinister hints of political leaders rather than to officers.

GREEN: To tell your troops, we're not happy about taking prisoners, we don't want well, we're not going to give them a safe conduct if they surrender. We're getting very close to kill everybody. So what does the ordinary man in the field know? How does he react to that sort of thing?

STEWART: The fate of foreign Taliban now held by the Alliance is something the international Red Cross is urgently trying to establish. Red Cross official Natalie De Watteville.

NATALIE DE WATTEVILLE (Int'l Committee of the Red Cross): We have been visiting prisoners in the, over the recent days in Kabul and Mazar-e-Sharif. We have been registering 350 of them in both cities. And we're going to try to get access to as many prisoners as we can.

STEWART: For the most part, all the Red Cross can do is ask, investigate and plead.

DE WATTEVILLE: Do they have access to food? Do they have access to water? To medical care? Are they being in treatment? What about during questioning, etcetera? And you make suggestions. You make pressure on the authorities.

STEWART: U.S. leaders have said they prefer bin Laden dead, but countries cannot pick or choose on surrenders. The rules of conflict would also cover him.

GUTMAN: I think it's much more likely that he's, he won't allow himself to be taken captive. In any case, if he is captured and he doesn't have weapons and he does surrender, I think he has to be treated, he can't be similarly executed without any due process of law. It's just not, it's just not possible. Once you let that happen, you basically have the law of the jungle.

STEWART: Rules of war and conflict are often ignored but they are clear. They're meant to cover enemies however loathed and all battle grounds, however brutal and remote. For The National, I'm Brian Stewart.