Memo, Powell: an argument for respecting the Geneva Conventions

In a memo to the White House, Secretary of State Colin L. Powell states the advantages of applying the Geneva Conventions far outweighs their rejection. He states that declaring the conventions inapplicable would "reverse over a century of U.S. policy and practice in supporting the Geneva Conventions and undermine the protections of the laws of war for our troops." He also states that it would "undermine public support among critical allies."

Memo, Gonzales: the quaint Geneva Conventions

Today, Attorney General to-be Alberto Gonzales writes a four page memo for President Bush. It is motivated by a recent request by the Secretary of State to revise policy, and apply GPW with with regards to Taliban and al Qaeda (Powell's opinion will be published in a memo dated tomorrow).

Gonzales' memo is aimed at convincing the President not to take the advice of his Secretary of State. He is urged not reverse his decision, and to continue to deny POW status to detainees.

In the memo, Gonzales explores some of the negative aspects of refusing to treat prisoners of war as Prisoners of War. He describes the legal basis of the decision

Indeed, as the statement quoted from the administration of President George Bush makes clear, the U.S. will apply the GPW "whenever the hostilities occur with regular foreign armed forces (his emphasis).

He acknowledges the effect that this determination will have upon military culture:

A determination that GPW does not apply to al Qaeda and the Taliban could undermine U.S. military culture which emphasizes maintaining the highest standards of conduct in combat, and could introduce an element of uncertainty in the status of adversaries.

However, he concludes that "our military remains bound to apply the principles of GPW [Geneva Conventions on Prisoners of War] because that is what you have directed them to do." Unfortunately, he does not address how this directive is to be interpreted in light of the directive from two paragraphs previous, in which the military are directed not to apply the principles of GPW.

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In the memo, Gonzales also explores the benefits of not observing the Geneva Convention on POWs. He states that disregarding the convention would "preserve flexibility", and that allowing some wriggle-room in the definition of war crimes could prevent war crimes:

... the war against terrorism is a new kind of war. ... The nature of the new war places a high premium on other factors, such as the ability to quickly obtain information from captured terrorists and their sponsors in order to avoid further atrocities against American civilians, and the need to try terrorists for war crimes such as wantonly killing civilians.

He goes on to describe certain provisions of the conventions as quaint

In my judgement, this new paradigm renders obsolete Geneva's strict limitations on questioning of enemy prisoners and renders quaint some of its provisions requiring that captured enemy be afforded such things as commissary privileges, scrip (i.e. advances of monthly pay), athletic uniforms, and scientific instruments.

He does not elaborate to say whether he also considers other provisions of GPW "quaint", such as access to water, access food that isn't rotting and spoilt, freedom from torture and sexual humiliation, the right not to be raped or sodomised against one's will with foreign objects, access to legal assistance, the right not to be forced into signing false confessions, etc. Perhaps this is some of the "uncertainty in the status of adversaries" he referred to previously.

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In refusing to observe the GPW, he notes that the natural law of reciprocity upon which it is based is undermined. If the U.S. does not obey international law, there is no reason for any other country to:

• The US could not invoke the GPW if enemy forces mistreat coalition forces;
• The War Crimes Act could not be used against the enemy; and
• Other countries may follow the US lead and also look for "loopholes" in the GPW that they may also exploit.

He also notes that some other countries will not come on board with the new paradigm (perhaps "old Europe"), and in fact will take exception to the U.S. stance. He states

our position would likely provoke widespread condemnation among our allies and in some domestic quarters.

His primary concern in this matter is that such countries "may be less inclined to turn over terrorists or provide legal assistance to us if we do not recognize a legal obligation to comply with the GPW". Nonetheless, he concludes

On the balance, I believe the arguments for reconsideration and reversal [of the decision not to observe GPW] are unpersuasive.

Rumsfeld: "unlawful combatants"

Today a new phrase will be invented: "unlawful combatants". This new phrase does not appear anywhere in the Geneva Conventions.

At a news briefing, Secretary of Defence Donald Rumsfeld declares that "as I understand it, technically unlawful combatants do not have any rights under the Geneva Convention."

In light of the memo created two days ago, one assumes that Rumsfeld's erroneous statement is his attempt to summarise the legal opinion given to him by Yoo-Delahunty. However, as hair-splitting is the flavour of the week, we will briefly explore whether or not unlawful combatants have any rights under the Geneva Conventions.

One may refer to Article 75 "Fundamental guarantees" of the 1977 Additional Protocol to the Geneva Conventions (I) (which applies to "all cases of declared war or of 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" -- see Article 2), to see where the Secretary of Defence is in error.

Article 75 states that "The following acts are and shall remain prohibited at any time and in any place whatsoever, whether committed by civilian or by military agents". They include

(a) violence to the life, health, or physical or mental well-being of persons, in particular:
(ii) torture of all kinds, whether physical or mental;
(iv) mutilation;

Other rights for people detained during conflict include:

• anyone charged with an offence is presumed innocent until proved guilty according to law
• anyone charged with an offence shall have the right to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him
• no one shall be compelled to testify against himself or to confess guilt
• a convicted person shall be advised on conviction of his judicial and other remedies and of the time-limits within which they may be exercised
• Women whose liberty has been restricted for reasons related to the armed conflict shall be held in quarters separated from men's quarters. They shall be under the immediate supervision of women.

Memo, Yoo: Application of Treaties and Laws to al Qaeda and Taliban Detainees

John Yoo, Deputy Assistant Attorney General, and Robert Delahunty, Special Counsel, prepare a memo for William Haynes, General Counsel, Department of Defence. In it, they conclude that members of al Qaeda and members of the Taliban are not entitled to protection under the Geneva Conventions.

Three reasons, examined in detail below, support this conclusion. First, al Qaeda's status as a non-State actor renders it ineligible to claim the protections of the Geneva Conventions. Second, the nature of the conflict precludes application of common Article 3 of the Geneva Conventions. Third, al Qaeda members fail to satisfy the eligibility requirements for treatment as POWs under Geneva Convention III.

Regarding the first reason, the memo states:

Common Article 2, which triggers the Geneva Convention provisions regulating detention conditions and procedures for trial of POWs, is limited only to cases of declared war or armed conflict "between two or more of the High Contracting Parties." Al Qaeda is not a High Contracting Party. As a result, the U.S. military's treatment of al Qaeda members is not governed by the bulk of the Geneva Conventions,

Here is the relevant excerpt from the conventions. The second and third paragraph of Common Article 2 ("Common" meaning all four conventions share it) states:

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

For those interested in the spirit of the law regarding the final paragraph, the First Report by the Special Committee of the joint Committee, to which reference has already been made, states: "according to the spirit of the four Conventions, the Contracting States shall apply them, in so far as possible, as being the codification of rules which are generally recognized".

The spirit and character of the Conventions lead perforce to the conclusion that the Contracting Power must at least apply their provisions from the moment hostilities break out until such time as the adverse Party has had the time and an opportunity to state his intentions. That may not be a strictly legal interpretation; it does not altogether follow from the text itself; but it is in our opinion the only reasonable solution. It follows from the spirit of the Conventions, and is in accordance with their character. It is also in accordance with the moral interest of the Contracting Power, inasmuch as it invites the latter to honour a signature given before the world.

Regarding the second reason, the memo states:

Al Qaeda is not covered by common Article 3, because the current conflict is not covered by the Geneva Conventions. As discussed in Part I, the text of Article 3, when read in harmony with Common Article 2, shows that the Geneva Conventions were intended to cover either: a) traditional wars between Nation States (Article 2), or non-international civil wars (Article 3). Our conflict with al Qaeda does not fit into either category.

The first paragraph of Common Article 2 states

In addition to the provisions which shall be implemented in peace time, the present Convention shall apply to all cases of declared war or of 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.

For those interested in the spirit of the law:

By its general character, this paragraph deprives belligerents, in advance, of the pretexts they might in theory put forward for evading their obligations. There is no need for a formal declaration of war, or for the recognition of the existence of a state of war, as preliminaries [p.23] to the application of the Convention. The occurrence of de facto hostilities is sufficient.

The third reason relies upon the first two reasons given in the memo being correct. The memo states:

Article 4(A)(2) of the Geneva Convention III defines prisoners of war as including not only captured members of the armed forces of a High Contracting Party, but also irregular forces such as "[m]embers of other militias and members of other volunteer corps, including those of organized resistance movements." Geneva Convention III, art. 4. Article 4(A)(3) also includes as POWs "[m]embers of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power." Id. art. 4(A)(3). It might be claimed that the broad terms of these provisions could be stretched to cover al Qaeda.

This view would be mistaken. Article 4 does not expand the application of the Convention beyond the circumstances expressly addressed in common Articles 2 and 3. Unless there is a conflict subject to Article 2 or 3 (the Convention's jurisdictional provisions), Article 4 simply does not apply.

Incident: Idir

This month, Mustafa Ait Idir will be detained at Guantanamo Bay. He is suspected of plotting attacks on the US and British embassy in Sarajevo. A suit filed in the US District Court against the Bush Administration will allege that, while detained, he was subjected to the following abuses:

• his hands were secured behind his back and guards picked him up and slammed his body and his head into the steel bunk in his cell
• he was beaten
• his face was stuffed in a toilet and the toilet repeatedly flushed to the point where he feared that he would drown
• a garden hose was stuffed into his mouth and the water turned on, causing him to choke and water issue forth from his mouth and nose
• his pants were forcibly removed from him (without which, according to his beliefs, he could not pray)
• his face was sprayed with a chemical irritant
• his testicles were squeezed to the point that he fell to the ground in a fetal position
• his fingers were bent until one broke
• he was repeatedly jumped upon whilst lying prone on a bed of crushed stones
• in the aforementioned incident, his head was jumped on repeatedly with full body weight, causing him to suffer a stroke, which has left half of his face paralysed.

His face remains scarred, however the paralysis has dissipated. A lawyer for him and other men involved in the suit state that a video may exist depicting his abuse.