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Geneva and Guantanamo:
The Laws of War and the handling of Prisoners
This report discusses the application of the Geneva Conventions to various levels of conflict, their provisions regarding the status and handling of prisoners, and the controversy over American treatment of combatants in Afghanistan.
Which Conventions apply?
The relevant instruments are:
Geneva 1949 consists of four conventions dealing with ‘Wounded and sick’, Maritime’, ‘Prisoners of war’ and ‘Civilians’ respectively. The Convention dealing with Prisoners of War (POW) is referred to as ‘Convention 3’. The first three articles in each convention are identical and are referred to as ‘Common Article 1, 2 or 3’ as the case may be. There are 189 states party to Geneva 1949, including the USA and Afghanistan. These conventions are regarded as unquestionably part of International Customary Law and are therefore binding on all states.
Protocol I of Geneva 1977 amplifies Geneva 1949 in a number of ways. Protocol II develops and supplements Common Article 3 of Geneva 1949 dealing with armed conflict not of an international nature (e.g. civil wars). More than 150 states are parties to these protocols (including the United Kingdom since 1999). The United States and Afghanistan have signed these protocols but not ratified them. Therefore they are not parties to these instruments, and the provisions do not apply to them de jure. However by its signature a state indicates its intention to be bound by a treaty, and under the 1969 Vienna Convention on the Law of Treaties (Article 16) it is obliged to refrain from acts that would defeat the object and purpose of the treaty –a much lesser commitment.
What types of conflict are covered?
Geneva 1949 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 recognised by one of them’. (Common Article 2). (my underlining)
Common Article 3 of Geneva 1949 lays out certain safeguards applicable to ‘armed conflict not of an international character’. For example members of armed forces who have laid down their arms are to be treated humanely, without regard to their race, religion, sex etc. Prohibited acts include violence, cruelty, torture, or humiliating and degrading treatment. The passing of sentences and carrying out of executions can only be done after previous judgement pronounced by a regularly constituted court affording ‘all the judicial guarantees which are recognised as indispensable by civilised peoples’.
Protocol II of Geneva 1977 defines more closely the application of the Conventions to situations other than international conflicts. Specifically it relates to conflicts which take place in the territory of a party between its armed forces and ‘dissident armed forces or other organised armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations’. (Article 1(1)). It specifically excludes situations of internal disturbance and tension such as ‘riots, isolated and sporadic acts of violence and other acts of a similar nature’. These do not fall under the definition of ‘armed conflict’. (Article 1(2)). The intention is quite clearly to bring civil wars within the ambit of the Conventions while excluding terrorism. All are agreed that the negative definition in Article 1(2) is a valid definition of what falls below the threshold of armed conflict. For example it is on this basis that the UK has consistently argued that the Geneva Conventions do not apply to the situation in Northern Ireland. Even in the days of the ‘no go’ areas it is hard to see that the Article 1(2) threshold could ever have been crossed.
The exact status of the events of 11th September 2001 is debatable. Clearly an ‘armed attack’ took place on the United States, but this did not amount to an armed conflict because there was no response. It is fairly generally agreed that members of al-Qaeda were the perpetrators. If this organisation were regarded as non-state entity, i.e. an international terrorist conspiracy whose scope falls well below the threshold of Geneva 1977, Protocol II Article 1(2), then on this basis the United States could have argued that the Geneva Conventions did not apply to al-Qaeda operatives, as opposed to Taleban soldiers. However the counter actions by the Unites States since mid-October clearly brought into existence a state of armed conflict with the state of Afghanistan. This could hardly have been undertaken simply on the basis that Afghanistan was ‘harbouring terrorists’. In fact the links between the Taleban government and al-Qaeda had become so close that Afghanistan was by then a terrorist sponsored state. There is evidence that al Qaeda were supplying more than 60% of the Taleban’s finance and most of its best fighters. In exchange al-Qaeda got a secure base from which to carry out its war with the West. As long as Afghanistan was at their disposal, the group controlled territory, had enforceable rules, maintained armed forces, had a treasury and internal security organisation, and maintained diplomatic relations with some states while declaring war on others. It could reasonably be argued that al-Qaeda was so intertwined with the Taleban, the de facto government of Afghanistan, that the acts of one could be ascribed to both. This provides a much less controversial rationale for intervention, the right of self-defence. It is enshrined in Article 51 of the UN Charter which sets out the inherent right of individual or collective self-defence if an armed attack occurs against a member, although only as an interim measure ‘until the Security Council has taken measures necessary to maintain international peace and security’. The Security Council (by resolutions 1368 and 1373) expressed its readiness to authorise military force in response to the attacks of 11th September, thus meeting the latter point. There is, however, an interesting question whether Article 51 is limited to inter-state relations. If, as mooted above, these attacks were carried out by Afghanistan as a terrorist-sponsored state then Article 51 applies without question. If they were carried out by al-Qaeda, regarded as a non-state actor, then it might be necessary to rely on the inherent right to self-defence under customary law. Having no connection with the UN this would be less satisfactory, nor in this case does it seem to be required.
A reasonable interpretation of the situation is therefore as follows. A state of armed conflict exists (so long as hostilities continue) between the US and the de facto government of Afghanistan. As explained above it makes no difference that war has not been declared, nor that a ‘state of war’ is not recognised by one or other of them. Since it is an armed conflict between states party Geneva 1949 unquestionably applies. And having signed Geneva 1977 the US should not act in any way that would defeat its objects. Al-Qaeda, on the other hand, though it had hi-jacked the state of Afghanistan, is not co-extensive with and could not be wholly identified with that state since its ambit is much wider. Hence individual al-Qaeda operatives, operating outside Afghanistan and not directly associated with the Taleban could hardly enjoy combatant status nor the specific protection of the Geneva Conventions.
Who do the Conventions cover?
According to Geneva 1949, Convention 3, Article 4, persons in the following categories, among others, are to be treated as POW:
- members of regular armed forces who profess allegiance to a government or an
authority not recognised by the detaining power,
Geneva 1977 Protocol I adds some important provisos:
It is therefore surprising that the US has said that it regards the Taleban military prisoners as not enjoying POW status under the Conventions. So far as is known the Taleban forces are responsibly commanded. They certainly carry arms openly. The carrying of a ‘fixed distinctive sign’ needs some interpretation in the case of tribal warriors. In practice its absence seems not to cause great difficulty. Presumably, then, the Taleban are disqualified for not respecting the laws and customs of war. While this clearly applies to al-Qaeda, it seems of dubious application to the Taleban. This makes it the more surprising that the US government apparently has no intention of submitting the issue to a ‘competent tribunal’. The fiat of the Pentagon is to suffice.
What protections do the Conventions provide?
Those accorded the status of POW must be humanely treated. Any act or omission endangering their health is regarded as a serious breach. They may not be subjected to physical mutilation or medical or scientific experiments other than in their own interest. They must be protected against acts of violence, intimidation, insults or public curiosity. Reprisals against them are forbidden. (Geneva 1949, Convention 3, Article 13). They are entitled to respect for their persons and their honour. Women are to be treated with all the regard due to their sex (and no worse than men). (Article 14). Maintenance and medical attention are to be provided free of charge. (Article 15). On interrogation POW are required to furnish only their names, date of birth, rank and personal number. They may, of course, be questioned further, but only in a language they understand. No physical or mental torture, nor any other form of coercion may be inflicted in order to secure information of any kind. Those who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind. (Article 17). A raft of further provisions for their humane custody follow from the above. They cover such matters as quarters, food and clothing, hygiene and medical inspections, religious, intellectual and physical activities, work and wages, correspondence, food parcels, complaints procedures and the role of the Red Cross. (Articles 18-81). A whole chapter is devoted to disciplinary and penal proceedings. A POW is normally entitled to be tried by a military court and in any case by a court affording the essential guarantees of independence and impartiality as generally recognised. There are special provisions concerning conduct of the defence, sentencing, appeals and the death sentence. (Articles 82-108). POW are to be released and repatriated without delay on the cessation of active hostilities. (Article 118).
Any person who has taken part in hostilities and is not entitled to POW status, is given certain protections under Geneva 1977 Protocol I Article 75. Under the rubric of ‘Fundamental guarantees’ this article says that such a person is to be treated humanely in all circumstances and shall suffer no adverse distinction based upon race, colour, sex, language, religion or belief, political or other opinion, national or social origin, wealth, birth or other status, or any other similar criteria. Parties are to respect the person, honour, convictions and religious practices of all such persons. The Article specifically forbids violence to the life, health, or physical or mental well-being of persons, (in particular murder, torture - physical or mental - corporal punishment or mutilation), humiliating and degrading treatment, enforced prostitution or any form of indecent assault, the taking of hostages, collective punishments and threats to commit any of the foregoing. The article provides that persons are to be informed promptly, in a language they understand, why they are being detained. Except in the case of penal offences they are to be released with the minimum delay possible. Any penal offence must be tried in an impartial and regularly constituted court respecting the generally recognised principles of regular judicial procedure. A number of these principles are spelled out and include such safeguards as the presumption of innocence, the right to examine hostile witnesses and to obtain the attendance of witnesses on behalf of the accused, and the right to be advised of remedies against conviction. Trial shall be only on the basis of individual penal responsibility. If the trial concerns a criminal offence this must have constituted a criminal offence under the national or international law to which the person was subject at the time. In the case of war crimes or crimes against humanity the provisions of this article apply whether or not the alleged crimes constitute grave breaches of the Convention. This article is based on similar principles to Geneva 1949, Convention 3 and even the US agrees that it is reflective of customary international law and thus binding on all states. However it says nothing about such important matters as the rules of interrogation, the constitution of a court, entitlement to legal assistance and in the case of a death sentence a six-month stay of execution. Hence in assigning the Taleban prisoners to this category the US Government is relieving itself of certain important obligations but by no means obtaining a free hand to infringe the basic human rights of persons detained.
What the American Government has done.
In the first few months after 11th September the Americans made almost every mistake possible. To begin with they christened the bombing campaign against Afghanistan ‘Operation Infinite Justice’. As Geoffrey Robertson has pointed out (See Sources, below) this made no sense because human justice is both finite and fallible. More importantly it begged the question of exactly what forensic procedure they intended to adopt to persuade the rest of the world that their cause was right. Putting Milosevic on trial in The Hague was an early aim of NATO in the bombing of Kosovo and had come to pass eighteen months later. The Lockerbie tribunal had resulted from a long economic war against Libya and a life sentence had been passed on one of the accused (now under appeal). What court, if any, awaited bin Laden and his associates? (Bin Laden was already under indictment in New York for the killing of 224 people in the East Africa embassy bombings. He had been charged with conspiracy to murder, bomb and maim and to kill US nationals, and four co-defendants had been convicted in May 2001).
Next the US administration announced that the Geneva Conventions did not apply to the conflict in Afghanistan. No reputable military lawyer could have taken this position. There is, however, a legitimate question about the nature of the conflict. The Northern Alliance had been fighting a civil war for years and was the officially recognised government. If the US and the UK really came in to help them in their civil war then it is at least arguable that this was an ‘internationalised’ civil war and not an international conflict. Hence prisoners would not enjoy full prisoner of war status. However the provisions of Geneva 1949 Common Article 3, would apply, requiring humane treatment for all combatants who surrendered and no punishment without some form of fair process. This much was accepted in principle, if not necessarily in practice, even by the Northern Alliance.
Thirdly the Pentagon saw fit to call their prisoners ‘unlawful combatants’, a term current in US military manuals although there is no such category in international law. Those who are captured as part of an internal armed conflict are ‘criminals’ in the eyes of domestic law but are still entitled to fundamental guarantees. These elementary blunders were compounded by deplorable public relations. Thus Donald Rumsfeld, Secretary for Defence, remarked that he ‘did not feel the slightest concern’ about the prisoners, comparing their lot favourably with the treatment accorded by al-Qaeda to its victims. This was completely to miss the point that the war against terrorism is precisely to sustain the rule of law against those who profess to scorn it. A photograph was then released showing a number of detainees on arrival at ‘Camp X-ray’ in Guantanamo, South Cuba. They appeared to be chained, with beards shaved, wearing gloves, goggles, ear defenders and caps and kneeling in abject humiliation, thus bearing out the rhetoric of dehumanisation.
Fortunately, in recent weeks much has been done to correct these false steps. The military operation has been re-named ‘Enduring Freedom’. The US administration has announced that it would grant the protection of the Geneva Conventions to detainees who had fought for the Taleban although not to members of al-Qaeda. The Taleban fighters would not, however be accorded the status of POWs. (International Herald Tribune, 8th February 2002.) The International Committee of the Red Cross has been allowed a permanent presence in camp X-ray. Three British prisoners have been seen by British officials and have made no complaints about their conditions and treatment. (House of Commons, 11th February 2002: Column 8W, Written Answer.) It seems therefore that there is nothing much wrong with the way the detainees (186 of them as at 8th February 2002) have actually been handled. The Pentagon is reported to have announced that most of the prisoners will be repatriated to their countries of origin for judicial proceedings. This is plainly to be welcomed.
It remains an open question why the US government has determined that the Taleban fighters in detention, while being given the protection of the Geneva Conventions, are not to enjoy POW status or, if the matter is in doubt, why it should not be submitted to the judgement of a ‘competent tribunal’ as Geneva 1949 Convention 3 Article 5 clearly requires, and as US official manuals clearly accept. Two reasons have been suggested. The first concerns methods of interrogation. This appears to be based on a misunderstanding. A POW is required to give only on his names and rank, date of birth and personal number (or the equivalent). But there is nothing in the Convention to stop him being interrogated on any other subject and nothing to stop him giving any reply he wishes. Indeed Geneva 1949, Convention 3, Article 17 makes it clear that such questioning is to be expected (since it limits the means that may be employed - see above) and as a matter of fact all armies interrogate captives as a matter of routine. As for non-POWs, Geneva 1977, Protocol I, Article 75 does not contain the same explicit restrictions on methods of questioning. But it makes it clear that any means of interrogation involving violence to the life, health, or physical or mental well being of persons, torture, corporal punishment and humiliating or degrading treatment is forbidden. So it is not clear what extra freedom of choice in methods of questioning the US government seeks to gain by placing their captives in the non-POW category. Another suggestion is that the US might not want to release and repatriate its captives as soon as active hostilities cease, as is required by Geneva 1949, Convention 3, Article 118. While there might be sense in this so far as al-Qaeda captives are concerned it seems far-fetched in the case of Taleban soldiers. In any case Article 119 of that Convention provides that POWs against whom criminal proceedings for an indictable offence are impending may be detained until the end of such proceedings and, if necessary, the completion of punishment. It has also been suggested that the precise status of the captives might affect whether or not they receive individual hearings. The grounds for this are obscure since under Geneva 1977, Protocol I, Article 75 2(d) collective punishments are specifically forbidden. The suspicion remains that the ruling against POW status has been made for no better reason than that Donald Rumsfeld insisted on it from the outset and refused to back down.
A further question concerns the type of tribunal in which al-Qaeda suspects are to be tried. On 13th November 2001 the US President signed an executive order providing an alternative to a civil court serving with jury. Announcing this Vice President Cheney said that the conspirators of September 11th ‘don’t deserve the same guarantees and safeguards that would be used for an American citizen going through the normal judicial process’. Instead they deserved to be ‘executed in relatively rapid order’ like German saboteurs tried in secret in World war II by a special military commission. A ‘Special Military Commission’ is quite different from a Court martial. It consists of a group of officers ordered by the President, as Commander in Chief, to sit in judgement according to rules set out in the Presidential order. As Geoffrey Robertson has explained such a commission is not independent or impartial. The officers acting as judges are paid and promoted by the Pentagon, an arm of the government which has alleged their guilt and which acts as their detaining power. They are commissioned by the President who has determined in writing that the defendants should be prosecuted and who thus has a vested interest in their conviction. However the rules published by the Pentagon (IHT 23-24 March 2002) are less draconian than had been feared. Suspected terrorists are to be given the rights: (1) to presumption of innocence; (2) to choose counsel and see the prosecution’s evidence; (3) to trial in public, though classified information will be kept secret; (4) to remain silent with no adverse inference drawn. The prosecution will be required to prove guilt beyond a reasonable doubt. The military judges, who can normally convict on a two-thirds majority, must be unanimous on a death penalty, though they do not have to give a reasoned written judgement. An appeal procedure is provided, but only to a panel of judges appointed to or by the military. (Hence a non-citizen tried outside the USA would have no recourse to the US federal courts). A verdict of ‘not guilty’ shall not be changed on appeal. Regrettably nothing is said about the length of time a suspect can be held without trial. It is also notable that there has been no contribution by Congress in the making of what is undoubtedly law.
Such a Commission would not be a court in the ordinary sense at all, but an extension of the power of the President who, through the officers he appoints, would act as prosecutor, judge, jury and court of appeal. It would fail to conform to the fair trial guarantees in the Universal Declaration of Human Rights or any other human rights convention and would be in breach of the minimum due process safeguards of Geneva 1949. President Truman rejected such a model when it was proposed for Nuremberg. The US proposed such a court to Scottish Law Officers for Lockerbie but they rejected it because of its palpable unfairness. A Lockerbie model for al-Qaeda could take the form of three independent professional American Federal judges, sitting in a neutral location but applying the law of the state of New York, delivering a reasoned written decision in place of a jury verdict, with sentencing options excluding the death penalty. An alternative would be to ask the UN Security Council to establish an ad hoc tribunal as it has in the Hague for former Yugoslavia and for Rwanda. There would be no difficulty in finding a high-profile American prosecutor and judges from coalition countries could include Muslim jurists. The Hague Tribunal rules afford basic rights to defendants while admitting all relevant and reliable evidence. Protocols exist to evaluate the sort of hearsay evidence that may be necessary to prove terrorist conspiracies and protect from public disclosure the identity of informers or evidence from intercepts and other forms of secret intelligence gathering.
It is perhaps encouraging that Federal prosecutors recently decided not to use Special Military Commissions to try Zakarias Moussaoui, the French ‘20th hijacker’ or Richard Reid, the British ‘shoe bomber’. As William Safire has commented ‘Let’s hope that means last year’s notion of circumventing the civil courts, even as now refined, will quietly be shelved’. (IHT, 23-24 March 2002, page 4).
What is to be done?
This report has argued that the US authorities have made three enduring blunders
These arrangements fly in the face of natural justice and the provisions of internationally agreed instruments. They therefore serve to undermine the very rule of law that anti-terrorist operations are designed to protect. More immediately, if the work of the Special Military Commission is followed by executions ‘in relatively rapid order’ it risks provoking derision and anger throughout the world, much of it from US allies and supporters’. (Geoffrey Robertson). This would be a dismal outcome to the otherwise surprisingly successful first stages in the war against global terrorism. Though it is probably too late to reverse these errors no opportunity should be lost to urge the US Government to do so. The British government has experience over the past thirty years in dealing with its own home grown terrorist movement, including attacks on prominent buildings in the Capital city, an attempt to murder the cabinet and innumerable atrocities on innocent civilians. Its relatively benign practice over recent years in dealing with Republican and Loyalist prisoners, together with the goodwill built up by the British government in the immediate aftermath of 11th September, puts it in a stronger position than most to take a lead.
It is a serious weakness that the Geneva Conventions and Additional Protocols give no guidance on how to handle operations below the threshold for armed conflicts set out in Geneva 1977, Protocol II, Article 1(2): i.e. ‘internal disturbances and tensions, riots, isolated and sporadic acts of violence and other acts of a similar nature’. The difficulty is that further one goes away from inter-state conflict, the more one is stepping on the toes of State sovereignty. Probably the best that can be hoped for is a non-binding code of conduct. The International Institute of Humanitarian Law at San Remo is currently involved in drafting a Manual for non-international hostilities, trying to look at general principles that extend across the threshold boundary of internal disturbances as in Geneva 1949 Common Article 3 and Protocol II of Geneva 1977. Just such a code is being given a trial run in the military courses there and deserves every encouragement.
Finally the International Criminal Court is nearing take-off. On 22nd March 2002 the Rome Charter had achieved 56 ratifications (out of 139 signatories). It will come into existence 60 days after the 60th state party has ratified, presumably later in 2002. There is general agreement among jurists that this will provide a better milieu than any presently available for bringing such as al-Qaeda to justice. American opposition to this court is well rehearsed but it is not wholly rational and may not be so deeply entrenched as it now seems. Some in the US are keen to use current events to soften this opposition. Their efforts deserve every support the UK can provide. This subject, however, deserves a separate report.
Hugh Beach April 2002
Adam Roberts and Richard Guelff, Documents on the Laws of War, 3rd Edition, Oxford University Press, Oxford, 2000.
Geoffrey Robertson QC, Justice and Revenge: International Law after Tuesday 11th September 2001, Wyndham Place Charlemagne Trust, London 2002.
Adam Roberts, Counter-terrorism, Armed Forces and the Laws of War, ‘Survival’, Volume 44 Number 1, Spring 2002, International Institute of Strategic Studies, London, pages 7-27.
Colonel CHB Garraway, personal communication, 27th March 2002.