In the recent war in Afghanistan – clearly an international armed conflict to which GC III Relative to the Treatment of Prisoners of War applies – the United States took the position that no detainees are entitled to prisoner of war (POW) status.5 This is despite the plain language of GC III, Article 4.1, which states that POWs are members of the armed forces of a party to the conflict who have fallen into the power of the enemy. The United States has asserted that even the Taliban are not entitled to POW status since they failed to have a fixed, distinctive sign (uniforms) and did not conduct their operations in accordance with the laws and customs of war. These disqualifying factors are part of GC III, Article 4.2, which applies to militias and volunteer corps and not to regular members of the armed forces, who are covered by Article 4.1.
Even if these disqualifying criteria are relevant to regular members of armed forces, as some analysts suggest, their application is subject to two more provisions: GC III, Article 5, which calls for the convening of a “competent tribunal” to determine POW status in case of doubt, and the even more specific language of U.S. Army regulations calling for “competent tribunal” determinations upon request of the detainee.1 Both of these authorities can only be construed to require individualized determinations. (Several writers have accused the ICRC of claiming that all detainees are entitled to POW status;2 actually, all the ICRC has ever claimed is that detainees are entitled by the Conventions to an individualized determination of status in the event of doubt.3) Because the U.S. administration has chosen not to make public any specific allegations, I do not pretend to know what it knows about the Taliban's alleged failure to conduct their operations in accordance with the laws and customs of war. It is obvious, however, that if the mere commission of war crimes by one or more members of armed forces can disqualify them all from entitlement to POW status, then there would never be a POW. Such an interpretation cannot stand, since it would defeat the very purposes for which the status of POW exists in IHL.
Having denied its Guantánamo detainees POW status under GC III, the United States also rejects application of GC IV for the protection of civilians, thus leaving them in a legal vacuum. This issue is clouded in emotional rhetoric that has far overshadowed the facts. The right of all persons to recognition before the law is a fundamental, non-derogable human right.4 Consistent with that right, the ICRC Commentary takes the position that all armed conflict detainees are “protected persons” either under GC III or GC IV.5
The idea of granting “protected person” status to “terrorists” is apparently unacceptable to the U.S. administration. But first, not all detainees are terrorists. Those who are mere members of the enemy armed forces - the Taliban – are presumptively entitled to POW treatment “until such time as their status has been determined by a competent tribunal.”1 Second, others are civilians who may or may not have committed criminal (e.g., terrorist) acts. To recognize their entitlement to “protected person” status under GC IV in no way prohibits their interrogation and detention for the duration of the conflict, so long as they remain a security risk.2 Nor does it prohibit their prosecution and imprisonment beyond the temporal bounds of the conflict, if convicted of a crime.3 They may even be subject to execu-tion.4 However, while they may be killed in battle, detained without trial for the duration of the armed conflict, or tried and sentenced for any “terrorist” acts, they may not be held outside of any legal framework.
On the other hand, the U.S. avails itself of the right in armed conflict to detain individuals without recourse to lawyers in ways that constitute a fundamental misapplication of that right. For example, there are two categories of detainees in Guantánamo for whom long-term detention without any judicial or administrative review is not permitted by international law. First are those lawfully captured in the post-September 11 international armed conflict in Afghanistan, which ended with the installation of the Karzai government in June 2002. To the extent that hostilities continue, they amount either to an internal armed conflict or to something less than armed conflict altogether. Either way, these detainees are entitled to an individualized procedure to challenge the basis of their detention. It is ironic that the U.S. correctly claims a right under the laws of war to detain certain people for the duration of an armed conflict, but then shirks its obligation under the very same laws to provide them with a hearing.
Second are those, taken prisoner in far-flung places such as Zambia, who are suspected of terrorist criminal activity beyond any connection with armed conflict, and are “rendered” into U.S. custody without legal process. To subject them to the rules of detention in war contradicts both the letter and spirit of international law. People who commit hostile acts against U.S. interests may be criminals, but are not necessarily enemy combatants. Those who commit hostile acts in the context of armed conflict may be enemy combatants, but are not necessarily criminals. Only those who commit hostile acts in the context of armed conflict but are not regular soldiers, or “privileged” combatants, can properly be considered “unlawful” or “unprivileged” combatants. While they may be prosecuted for unlawful acts of belligerence, such people, despite U.S. assertions to the contrary, may not be denied protections of the law of armed conflict and other applicable laws.
The U.S. is, furthermore, proceeding with plans to subject prisoners to military commission trials, citing the GC provision that prisoners of war be tried by military courts. How can it do so while maintaining that no detainees are entitled to POW status? That aside, the U.S. risks throwing into the military-trial pot people whose alleged crimes have no connection with armed conflict, as understood in IHL. Such people can and should face trial, but not by military courts.
Interrogation
It has been argued that granting POW status would impede effective interrogation because POWs are not obliged to provide more than the most basic identifying information.
This position is incorrect for two reasons. First, it misconstrues the distinction between POWs and civilian internees, implying that the essential point is the varying kinds of techniques that may be employed in interrogation. On the contrary, the essential difference between the two is that, since the law of armed conflict allows the taking of life, regular soldiers and assimilated militia are exempt in wartime from the operation of otherwise applicable criminal laws that prohibit and punish killings, so long as the victim is a legitimate military objective. Civilians, on the other hand, possess no such right and continue to be subject to criminal laws for their hostile acts in wartime, as in peacetime. This is an essential complement to the most fundamental principle of the law of armed conflict, the principle of distinction, which provides that only military objectives may be targeted and that the civilian population may not be targeted.1 To protect civilians who take no part in hostilities from becoming targets, it is essential that civilians who do unlawfully take part thus lose their immunity from targeting and are liable to criminal punishment. While both soldiers and civilians may be tried and punished for war crimes, soldiers entitled to POW status are otherwise deprived of their liberty not for reasons of culpability, but merely to prevent their return to battle.1 Both, however, are equally protected from torture and cruel, inhuman, and degrading treatment by the GCs;2 by the customary laws of war applicable to both international and internal armed conflict;3 and by international human rights law.4
There is a second reason why it is, in my view, incorrect to suggest that the GCs need to be reworked or ignored on the ground that they prohibit “serious” interrogation. This argument confuses what interrogators are allowed to ask, and how they are allowed to ask it, with what detainees are required to provide. In fact, there are no limits to what an interrogator may ask or what a detainee may volunteer, whether he or she is a POW or civilian. There are, however, limits on how information may be obtained.5The assertion that granting POW status would tie the hands of the investigator is merely a discreet way of suggesting that civilians may lawfully be subjected to interrogation techniques not
available against POWs. This is false; non-POWs may not lawfully be subjected to interrogation techniques that may not be used against POWs.6 To assert the contrary is to embark down a slippery slope that could lead to abuses.
Further considerations
Some have asserted that al-Qaeda and Taliban fighters are ineligible for the protections of the GCs because they do not, themselves, obey the rules.7 Leaving aside the question of whether they do or don't, although it is absolutely clear that targeting civilians who take no part in hostilities is a war crime, it is well settled that the obligations imposed by the GCs are not subject to reciprocity, so long as both parties to the conflict are also parties to the Conventions.1 It is true that expectations of reciprocal treatment for my soldiers detained by my enemy create a strong incentive for me to obey the rules. But the purposes of International Humanitarian Law are just that, humanitarian. In contract law, if I fail to deliver the widgets, you are excused from paying for them. But in war, my failure to obey the law does not, and cannot, provide you with license to do likewise. Were it otherwise, the rules would likely never be obeyed. Besides, the argument that adherence to rules that terrorists ignore somehow puts them at an unfair advantage is questionable. We have graphically seen what little is gained and how much is lost by sidestepping legal constraints.
Furthermore, the idea that a “just war” confers upon its prosecutors more rights than a “war of aggression” is untenable for the very simple reason that wars generally do not feature self-confessed aggressors. Even if the “good” and “evil” are easily distinguishable, there is no justification for application of a lesser standard of protection to members of the “evil” group, who are not, or are no longer, taking part in hostilities. The absurdity of the proposition that the army, citizens, and members of the aggressor group – or the group that is said by its enemy to be “clearly” in the wrong in the case of armed conflict – should rightfully be subject to cruelties that it may not impose upon its enemy underscores why the jus ad bellum is distinct from, rather than consanguineous to, the jus in bello. The very essence of jus ad bellum is the distinction between just and unjust cause – between entitlement and prohibition to wage war. Jus in bello, on the other hand, rightfully recognizes no such distinction. While one party may be a sinner and the other a saint under jus ad bellum, the jus in bello must and does bind the aggressor and the aggressed equally.2
VII. Conclusion
Critics of IHL and of humanitarian organizations like the ICRC have perhaps succeeded in one respect by sowing seeds of doubts about the continued relevance of the Geneva Conventions. But it now seems that because the Conventions are all too relevant, because, for example, their application triggers criminal responsibility for grave breaches, i.e., war crimes, their application is being denied.1 It is on this level that the debate must be joined.
At stake are not merely the rights of persons in any single nation's custody and that nation's reputation for fair dealing. What of the ability and credibility of great powers to exert moral authority on others? What of the practices, and excuses put forth by, violators of the law around the globe? Why shouldn't any accused before the Yugoslavia or other tribunals now claim exemption from the limits imposed by international law, including the GCs? How does one now respond to the accusation that a double standard is no standard at all?
These are the questions that must be addressed before we rush to the conclusion that there is a need to develop a new legal framework to combat terrorism, or that the present framework is inadequate and so may be ignored. The proper frameworks already exist. One of them is the law of armed conflict, or IHL, and it will do the job it was designed to do, namely to strike a proper balance between the interests of state security and individual liberty, but only if we resist applying it where it does not belong and properly apply it where it does belong.
Where terrorism and the battle against it amount to armed conflict, the law of armed conflict must be applied. But when aspects of the “war on terror” do not fit within the definition of armed conflict, it is in everyone's interest that domestic and international law is respected. Furthermore, the inapplicability of humanitarian law to those aspects of the so-called GWOT that do not meet criteria for classification as armed conflict should be viewed as a benefit rather than an obstacle or as a collision between conflicting legal regimes. Ultimately, it would weaken both liberty and security to expand the right to kill people and detain them without trial to situations beyond those envisaged by the law of armed conflict. These distinctions are not mere legal nuances. People's lives and the integrity of the rule of law hang in the balance.
1. International Committee of the Red Cross, “International Humanitarian Law” (http://www.icrc.org/Web/Eng/siteeng0.nsf/htmlall/section_ihl_in_brief), defining “international humanitarian law” as “a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.” Its central purpose is to limit and prevent human suffering in times of armed conflict. The rules are to be observed not only by governments and their armed forces, but also by armed opposition groups and any other parties to a conflict. The four Geneva Conventions of 1949 and their two Additional Protocols of 1977 are the principal instruments of IHL.
1. See, for example, United States War Crimes Act of 1996, 18 U.S.C §2441 (2000).
2. Jack L. Goldsmith and Eric A. Posner, “A Theory of Customary International Law,” University of Chicago Law Review, Vol. 66, 1999, pp. 1113, 1116–17.
1. Common Art. (CA) 2 of Geneva Convention (GC) I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), 6 U.S.T. §3114 (1956); GC II for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces at Sea (1949), 6 U.S.T. §3217 (1956); GC III relative to the Treatment of Prisoners of War (1949), 6 U.S.T. §3316 (1956); and GC IV relative to the Protection of Civilian Persons in Time of War (1949), 6 U.S.T. §3516 (1956). See also Protocol Additional (AP) I to the GCs of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 16 I.L.M. §1391 (1977).
2. Lindsay Moir, The Law of Internal Armed Conflict (Cambridge: Cambridge University Press, 2002), pp. 33–34. See also CA 3 of GC I; GC II; GC III; GC IV; and AP II, relating to the Protection of Victims of Non-International Armed Conflicts, Art. 1, 16 I.L.M. §1442 (1977).
3. Moir, op. cit., pp. 34–42.
4. AP II, Art. 1.
5. Moir, op. cit., pp. 36–38.
1. GC IV, Arts. 42, 43.
2. See, for example, Universal Declaration of Human Rights (UDHR), Arts, 3, 9—11; General Assembly Resolution No. 217A (III), UN Doc A/810, pp. 136—37 (1948); International Covenant on Civil and Political Rights (ICCPR) (1966), Arts. 6, 9, 14, 6 I.L.M. §§368, 370—73 (1967); American Convention on Human Rights (ACHR) (1969), Arts. 4, 7, 8; 1144 UN Treaty Ser. 123, 145—46, 147—48 (1979).
3. Carsten Stahn, “International Law at a Crossroads? The Impact of September 11,” Heidelberg Journal of International Law, Vol. 62, 2002, p. 195, citing W. J. Fenrick, “Should the Laws of War Apply to Terrorists?” American Society of International Law Proceedings, Vol. 79, 1985, p. 112: “[T]here are times and places when it is appropriate to apply other regimes such as the criminal law of a State at peace …. Premature application of the laws of war may result in a net increase in human suffering, because the laws of war permit violence prohibited by domestic criminal law.”
1. See, for example, James R. Schlesinger et al., Final Report of the Independent Panel to Review DoD Detention Operations, pp. 86–87, 92 (2004).
2. Ibid., pp. 27–31.
3. On the other hand, President Bush and others speaking on behalf of the U.S. administration have clearly suggested that some aspects of the “war on terror” will not involve armed conflict, permitting us to conclude that in their view those aspects, at least, will not
be covered by IHL. On September 20, 2001, President Bush said in an Address to a Joint Session of Congress and the American People, “The war will be fought not just by soldiers, but by police and intelligence forces, as well as in financial institutions” (http://www.whitehouse.gov/news/releases/2001/09/20010920–8.html). National Security Advisor Condoleezza Rice stated on a FOX News broadcast on November 10, 2002: “We're in a new kind of war, and we've made it very clear that this new kind of war will be fought on different battlefields” (http://www.foxnews.com/story/0,2933,69783,00.html).
1. See Gabor Rona, “Interesting Times for International Humanitarian Law: Challenges from the 'War on Terror,'” Fletcher Forum of World Affairs, Summer/Fall, 2003, pp. 55–74.
1. Gerald I. A. D. Draper, “The Geneva Conventions of 1949,” Rec de Cours, Vol. 114, 1965, p. 90.
2. I acknowledge, but exclude as unhelpful, the definition of terrorism found in the 1937 Convention for the Prevention and Punishment of Terrorism: “… criminal acts directed against a State or intended to create a state of terror in the minds of particular persons, or a group of persons or the general public.” A comprehensive list of treaties on terrorism can be found at http://untreaty.un.org/English/Terrorism.asp).
1. UNGA Res. 51/210, 17 December 1996. See Measures to Eliminate International Terrorism, Report of the Working Group, A/C.6/56/L.9, October 29, 2001.
2. Hans-Peter Gasser, “Acts of Terror, 'Terrorism,' and International Humanitarian Law,” International Review of the Red Cross, Vol. 84, September, 2002, pp. 553–554: “It is much more a combination of policy goals, propaganda, and violent acts – an amalgam of measures to achieve an objective.”
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