The release of US Army Sgt. Bowe Bergdahl is welcome news. Sgt. Bergdahl, who had been held captive by the Taliban for five years, was released as part of a prisoner exchange negotiated between the US government and the Taliban.
This morning over at the Lawfare blog John Bellinger – former US State Department legal ad visor – argued that, as a matter of international law, these detainees would probably have to be released by the end of the year anyway when US combat operations in Afghanistan come to a close. Article 118 of the Geneva Prisoner of War Convention states that, “Prisoners of war shall be released and repatriated without delay after the cessation of active hostilities.” According to Bellinger: “The Administration appears to have reached a defensible, hold-your-nose compromise by arranging, in exchange for the release of Sergeant Bergdahl, for the individuals to be held in Qatar for a year before they return to Afghanistan.”
But, are these detainees really POWs since they consciously reject the law of armed conflict? In such a case Article 118 would not apply. I don’t see how this matters in the case of an exchange, though, since the decision is ultimately a policy one and not about the legal status of the 5 Afghan detainees.
Many Republicans are also questioning the exchange claiming this sends a message to terrorist groups like the Taliban that the US will negotiate with them. But such exchanges have a long history in armed conflict. Even terrorist groups can have rational demands, though there is no need to give in to all of them.As Joshua Hurst tweeted this morning, “In the real world, there are just more distasteful people who nevertheless have to be dealt with.”
There is also the accusation that Sgt.Bergdahl is a deserter and therefore not entitled to have US troops risk their lives to rescue him. But that determination is for the US military to decide. And if it is found to be the case, an appropriate punishment can be meted out then by the proper authorities.
You never leave someone behind.