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View Diary: The End of Outrage (210 comments)

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  •  BTW (none)
    the key to your argument is the definition of Party - and it is not Party to the Treaty BTW. Look it up.

    I'm thinkin', I'm thinkin'

    by Armando on Sat Dec 11, 2004 at 12:28:36 PM PST

    [ Parent ]

    •  Thanks for this opportunity... (none)
      to research this fundamental question.  I will do more, but following is the result of some cursory research.  

      Armando does a good job of pointing out one aspect of Codejammer's, eh..., tortured interpretation of our obligations under the laws of war.  But, as common sense would indicate, these hermeneutic disputes were settled some time ago.  The United States has well-defined responsibilities to all persons in the theater of a conflict, and we undertook these responsibilities by virture of our ratification of the Geneva Conventions, as well as by ratification/adoption of other treaties and by our explicit recognition of these responsibilities under international and military law.

      Following is a brief primer that is on point.  Note particularly with regard to the status of persons found in a theater of conflict that they are to be treated as combatants for the purposes of the 3d Convention until determined to be otherwise by a competent tribunal (said tribunal to be constituted as set forth in the Convention.)  Significantly for this analysis, no such tribunals have yet been assembled.  Ergo, the 3d Convention applies to everyone at Abu Ghraib.  (Interestingly, and in response to Armando's question above, it appears that our military would also like to use the Conventions and standards of the laws of war to prosecute Iraqis for war crimes.  Thus, the need to jettison with strained arguments such as that which Codejammer tried to make.)


      1. International Law and the Treatment of Prisoners in an Armed Conflict

      The treatment of detainees in an armed conflict is governed by international humanitarian law, also known as the laws of war. Most relevant are the four Geneva Conventions of 1949, to which most states, including the United States and Afghanistan, are party. (Two Additional Protocols to the Geneva Conventions, adopted in 1977, have not been ratified by the United States, but many of their provisions are considered to be indicative of customary international law.) The Geneva Conventions set out a comprehensive legal framework aimed at protecting captured combatants and civilians during armed conflict.

      The protection and treatment of captured combatants during an international armed conflict is detailed in the Third Geneva Convention relative to the Treatment of Prisoners of War, which defines prisoners of war (POWs) and enumerates the protections of POW status. Persons not entitled to POW status, including so-called "unlawful combatants," are entitled to the protections provided under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. All detainees fall somewhere within the protections of these two Conventions; according to the authoritative Commentary to the Geneva Conventions of the International Committee of the Red Cross (ICRC): "nobody in enemy hands can fall outside the law."

      There are other international legal instruments outside the Geneva Conventions that also affect the treatment of persons during armed conflict -- and after the conflict. While some human rights standards can be derogated or limited during times of war or national emergency, other human rights standards continue to apply in full force at all times. Instruments relevant to the treatment of persons deprived of their liberty detainees include Torture and other ill-treatment of detainees is prohibited as a matter of customary law and treaty. Article 7 of the International Covenant on Civil and Political Rights, and which the United States ratified in 1992, provides that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." Also in force at all times is the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishmentand the UN Standard Minimum Rules on the Treatment of Prisonersto which the United States became a party in 1994.

      2. Types of Prisoners under International Humanitarian Law

      Under international humanitarian law, combatants captured during an international armed conflict should be presumed to be POWs until determined otherwise. Specified categories of combatants who "have fallen into the power of the enemy" are entitled to POW status. These categories include members of the armed forces of a party to the conflict, members of militia forces forming part of those armed forces, and inhabitants of a non-occupied territory who take up arms openly to resist the invading forces. POW status also applies to captured members of irregular forces who are under responsible command; have a fixed distinctive sign (such as an insignia, uniform or other marking) recognizable at a distance; carry arms openly; and conduct their operations in accordance with the laws and customs of war.

      POWs receive the full protection of the Third Geneva Convention relative to the Treatment of Prisoners of War. POWs may not be tried for the mere act of being combatants, that is, for taking up arms against other combatants. However, they may be prosecuted for the same offenses for which the forces of the detaining power could be tried, including common crimes unrelated to the conflict, war crimes, and crimes against humanity.

      Captured combatants who are not entitled to POW status have been described as "unlawful combatants" or "non-privileged combatants, " although neither term is found in the Geneva Conventions. Such persons are still protected under the Geneva Conventions, but under the provisions of the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War. This Convention also applies to civilian non-combatants who are affected by the conflict and due special protections as "protected persons."

      3. Status Determination of Prisoners

      Article 5 of the Third Geneva Convention states: "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 for POWs, "such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

      No detainee can be without a legal status under the Conventions. According to the ICRC Commentary:

      Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law.1

      U.S. officials have endorsed the government's adherence to this principle.

      In 1987, then-Deputy Legal Advisor to the U.S. State Department, Michael Matheson, stated that:

      We [the United States] do support the principle that, should any doubt arise as to whether a person is entitled to combatant status, he be so treated until his status has been determined by a competent tribunal, as well as the principle that if a person who has fallen into the power of an adversary is not held as a prisoner of war and is to be tried for an offense arising out of the hostilities, he should have the right to assert his entitlement before a judicial tribunal and to have that question adjudicated.3

      According to the U.S. military Judge Advocate General Handbook, the U.S. armed forces used such tribunals in conflicts from Vietnam to the Gulf War:

      "When doubt exists as to whether captured enemy personnel warrant POW status, Art. 5 [Third Geneva] Tribunals must be convened. It is important that judge advocates be prepared for such tribunals. During the Vietnam conflict, a Directive established procedures for the conduct of Art. 5 Tribunal....[The accompanying footnote states:] No Article 5 Tribunals were conducted in Grenada or Panama, as all captured enemy personnel were repatriated as soon as possible. In the Gulf War, Operation Desert Storm netted a large number of persons thought to be [Enemy Prisoners of War], who were actually displaced civilians....Tribunals were conducted to verify the status of the detainees. Upon determination that they were civilians who had taken no part in hostilities, they were transferred to refugee camps. Whether the tribunals were necessary as a matter of law is open to debate - the civilians had not "committed a belligerent act," nor was their status "in doubt."4

      Regulations issued by the four branches of the U.S. military in 1997 set out detailed procedures for tribunals consisting of three commissioned officers to make determinations of status where doubts arise in accordance with the Third Geneva Convention. Under the 1997 U.S. military regulations, persons whose status is to be determined shall: be advised of their rights at the beginning of their hearings; be allowed to attend all open sessions and will be provided with an interpreter if necessary; be allowed to call witnesses if reasonably available, and to question those witnesses called by the tribunal; have a right to testify or otherwise address the Tribunal; and not be compelled to testify before the Tribunal. According to the regulations, following the hearing of testimony and the review of documents and other evidence, the Tribunal shall determine the status of the subject of the proceeding in closed session by majority vote. Preponderance of evidence shall be the standard used in reaching this determination, and a written report of the tribunal decision is to be completed in each case.


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