Eugene Hasenfus: POW or mercenary? Nicaragua, US, and Geneva Conventions are at odds over his status

Is Eugene Hasenfus, the captured American flier currently on trial here, a prisoner of war or a criminal mercenary? Mr. Hasenfus himself seems unsure. He says he felt he was fighting a war for the United States government. At the same time, he grudgingly accepts the ``mercenary'' label.

The question points out key ambiguities in the nature of the Nicaraguan conflict between the Nicaraguan government and the US-funded contra rebels.

The ruling Sandinistas describe the contras' activity as a ``war of aggression'' waged by the US; officials in Washington call it a civil war between ``freedom fighters'' and a repressive regime.

Nicaragua's decision to try Hasenfus for flying arms to the contras seems to indicate a conflict between the political message Managua wants to convey with the trial and its juridical obligations toward the prisoner, says a Managua-based expert in international humanitarian law. The message is that this is a war waged by the US and not an internal civil war.

``If Nicaragua considers that it is at war with the United States,'' according to the expert, ``customary law associated with the Geneva Convention says they [the Sandinistas] cannot try Hasenfus for carrying arms, because that is considered a legitimate act of war.''

Under the 1949 Geneva Conventions, the expert says, Hasenfus can be tried, convicted, and imprisoned only if he was acting as a private individual in an internal conflict.

If Hasenfus was indeed working for the US government - as the Sandinistas say he was - then he is a prisoner of war as defined by the Geneva Convention dealing with conflict between states, the international law expert argues.

But Sandinista officials deny this. They insist the convention does not apply to the Nicaraguan conflict.

Although Nicaraguan leaders have repeatedly said US aid for the contras constitutes a ``declaration of war,'' such statements ``were not official,'' argues Deputy Justice Minister Alba Luz Ramos.

``For Hasenfus to be a prisoner of war'' and enjoy protection under the convention, she says, there has to be a declaration of war. ``We call this a war of aggression, an illicit war'' waged by Washington, she adds.

That distinction does not, however, exist in the Geneva Conventions to which both Nicaragua and the US are party. The convention stresses that it is applicable in ``a declared war, or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.''

The Sandinistas' political point in the Hasenfus case is clear. ``By means of this accusation,'' said Justice Minister Rodigo Reyes Portocarrero as he presented the charges against Hasenfus, ``we will demonstrate that the imputed facts are indissolubly linked to the official policy of the government of the US toward the Republic of Nicaragua.''

It is precisely that link, however, which makes the war an international conflict that brings the Geneva Convention on prisoners of war into play, says the legal expert.

Nicaragua is reluctant formally to recognize the US as a belligerent party, says Dr. Ramos, ``because juridically that would imply other consequences.'' It would mean, for example, that ``any US adviser [to the contras] who came here would be a prisoner of war, not a mercenary.''

``Hasenfus is a mercenary, because his country is waging an illicit war,'' Dr. Ramos adds. ``His government is a criminal government, and people working for it are criminals.''

This view, she points out, is coherent with the recent World Court ruling that the US is violating international law by aiding the contras.

At the same time, Washington has no interest in declaring itself a belligerent party in the Nicaraguan fighting, despite its open support for the rebels. No US officials suggested that Hasenfus is a POW.

``The problem is that the conflict has not been fully defined,'' says the humanitarian law expert. ``Hasenfus could be a mercenary, he could be a prisoner of war, he could be a civilian accompanying belligerents.''