Mr. Hasenfus and the law

VARIOUS human rights groups and the government of the United States have begun to question the procedures by which Eugene Hasenfus, an American caught delivering military supplies to contra rebels against the recognized Nicaraguan government, is being ``tried'' in Nicaragua. The Sandinistas have placed Mr. Hasenfus before a ``People's Anti-Somocista Tribunal'' whose function and procedure are clearly more in the realm of political action than our conception of the criminal law. The complaints seem to misconceive the situation.

The US has publicly disowned any responsibility for Hasenfus's actions. But his actions were wholly in support of the contras, a political movement militarily organized.

The situation seems closely analogous to that of an Irishman unauthorized by the government in Eire who is delivering arms to the IRA in Northern Ireland and captured in the act by the British. Such a person would be placed before a jury-less ``Diplock'' tribunal and quickly convicted of a ``criminal'' offense and sentenced to a long term in the Maze.

Similarly, a Palestinian, with or without any non-Israeli passport, who is caught running arms to any unauthorized persons in Israel would be placed before a tribunal and convicted of a ``criminal'' offense. Then he would probably be exchanged for Israeli soldiers at the cessation of the next round of active hostilities in the Middle East. United States courts-martial and military commissions are also tribunals which do not observe the ``due process'' safeguards which our Constitution guarantees to all people tried by courts established under the judicial system of the US. They are administrative tribunals, which have the authority also to send some people to jail for long periods.

There thus seems to be a confusion in many minds between the ideal course of justice, which is the subject of most human rights conventions, and the administrative procedures applied in civil emergencies, as if part of the normal course of justice, because the defending government believes it is to its political advantage not to dignify its enemies by calling them ``belligerents'' in an ``armed conflict.''

Those administrative procedures are in fact very similar to the procedures permitted by the laws of war in those ``armed conflicts.'' They are the subject of Article 5 of the 1949 Geneva Convention Relative to the Treatment of Prisoners of War, which provides: ``Should any doubt arise as to whether persons having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories [entitling them to treatment as prisoners of war], such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.'' That ``competent tribunal'' can be, and almost always is, an administrative hearing, not a ``judicial'' court.

To fall within this regime, it is not legally necessary that the contras be ``recognized'' as anything by anybody. ``Belligerent'' does not mean that the rebels have won the war and become a government.

Indeed, the modern origin of all these rules was the American Civil War of 1861-65, when the Union government refused to acknowledge any legitimacy in the Confederacy, but out of ``grace'' to avoid the excuse for reprisals, to maintain a sense of moral superiority in their own forces, and to ease the eventual return to peace, the Union applied the laws of war to the unrecognized rebels and insisted that they do the same. In 1865 a Union military commission hanged for ``war crimes'' the Confederate commandant of Andersonville, a Swiss-born Louisiana citizen named Henry Wirz.

In sum, Nicaragua's handling of Hasenfus, while unpleasant, is quite closely analogous to the equivalent actions of the British and Israelis, and even of the US in similar circumstances. Even the Nicaraguan insistence that Hasenfus be considered a ``criminal'' rather than a captured soldier is the same.

I suspect that after the usual propaganda advantage is reaped by the Sandinistas for internal consumption, and the fuss has died down somewhat, he will be released on parole; no further Nicaraguan purpose would be served by his continued imprisonment there.

By our acceptance of Nicaraguan rhetoric in disregard of the realities and context that should determine the meaning of the legal words -- and by arguing labels instead of true legal relationships growing out of the facts and the practices accepted as law by our best friends and closest allies -- we are probably delaying Mr. Hasenfus eventual repatriation.

Alfred P. Rubin is professor of international law at the Fletcher School of Law and Diplomacy at Tufts University.