Militiamen may be imprisoned at Guantanamo Bay

Captured Iraqi paramilitaries will be segregated from regular prisoners of war and could be sent to Guantanamo Bay for questioning, British Government sources confirmed yesterday. Geoff Hoon, the Defence Secretary, told the Commons that 8,000 Iraqi PoWs were being held.

But the prospect of so-called "irregulars" being sent to Camp X-Ray at the American naval base in Cuba could trigger a row between London and Washington. Senior British officers have made clear they would prefer plain-clothes fighters, paramilitaries and Fedayeen to be subjected to due judicial process for war crimes, possibly through the new International Criminal Court (ICC).

Downing Street said last night that any PoWs captured by British troops "will be treated under the Geneva convention". A spokeswoman for the Ministry of Defence said there would be "different handling arrangements" for captured or surrendered regular Iraqi troops and irregular militia. British and US officers say Iraqi irregulars have been disguising themselves as non-combatant civilians, some using cars and commercial vehicles, opening fire after staging fake surrenders and intimidating others into fighting for them.

The militias include the Fedayeen Sadaam – literally self-sacrificers for President Saddam Hussein – the Secret Security Organisation, and plainclothes combatants from the Baath party. Some U.S. forces said they saw militias using combatants as human shields, pushing women and children into the line of fire.

The Washington Post reported yesterday that some Iraqi "irregulars", will be sent to Guantanamo Bay, where 660 Islamic militants and others captured in Pakistan and Afghanistan are held without trial. Military sources told the newspaper 300 suspected paramilitaries captured in areas of fierce fighting near Nassiriyah may be sent there.

The detainees will be treated like PoWs, but without official status, until a hearing is held under Article 5 of the Geneva Conventions, officers told the Post. At least some suspects are reportedly being segregated from prisoners of war, in part because they may have been intimidating regular army soldiers now being held.

Asked to confirm plans to send paramilitary detainees to Guantanomo at yesterday's daily news conference here Brigadier-General Vince Brooks said all enemy prisoners would in initially be treated as enemy PoWs. He added: "Any additional decisions will be policy decisions, not made by this command.".

Senior military spokesmen for the US have noticeably hardened their language to describe the militias during the week. General Brooks has several times has called them "terror squads", "terror cells" and members of "terroristic behaving organisations".

The fate of the irregular captives could provoke fresh tensions over the ICC. The UK has unconditionally ratified it, but the US, China and Russia have not. One British source in Qatar suggested that "may be the nub of the difficulty". Air Marshal Brian Burridge, commander of the British forces, said in a weekend interview: "I do have a passionate personal belief that the only way to deal with asymmetric warfare and this sort of irregular behaviour is to use the war-crimes process. And the way we created the notion of equity after Bosnia, I think that is an important and powerful way of dealing with it. That is my personal view but it is not me who makes the decisions; it is for ministers, politicians and wiser people than I."

Referring to "irregulars", Air Marshal Burridge said: "You detain them. The notion of the Geneva convention is that prisoners of war are repatriated. Those who might have committed other sorts of crimes will undoubtedly have to answer for those crimes."

LAWS OF WAR

By Robert Verkaik

Surrender and treachery

Under the Geneva Convention soldiers are forbidden from misusing flags of truce, feigning war wounds or disguising themselves as civilians. The Convention describes all three actions as "perfidy" in article 37. But there is no ban on "ruses of war" – the spread of misinformation and use of decoys and camouflage are all legal.

Civilian casualties

British military lawyers have been attached to Air Force and Army headquarters and to units on the ground to help assess Iraqi targets. "The expected harm" to civilians "must not be excessive when set against the direct ... military advantage anticipated". An attack would be a war crime if it were "clearly excessive". Byplacing of military equipment in civilian locations the Iraqis are laying Britain and America open to charges of war crimes.

Pilots

Pilots of helicopters and warplanes shot down by Iraqi ground fire must not be "attacked" if they are forced to eject or parachute –they must be given an opportunity to surrender. These rules do not apply to troops parachuting from aircraft.

Spies

Anyone who is engaged in espionage does not have the protection afforded to prisoners of war. There are hundreds of Iraqi citizens helping the Allies identify targets in Baghdad and other cities.

Conscientious objectors

Three British soldiers have been sent home for objecting to the conduct of the war and could now face a possible courts martial. The right to refuse on the grounds of conscience to participate as a combatant was included in the Military Service (No.2) Act 1916, which introduced conscription for the First World War. This right is not available to members of the armed forces.