Friday, September 01, 2006

The Guantanamo Bay Detainees Are Not Protected by the Geneva Conventions

I recently stumbled upon the blog Terrorism News, where I read this interesting post protesting the treatment of detainees at the Guantanamo Bay Naval Base in Cuba. Even though the detainees are being treated rather well, there are still wild-eyed rumors about torture and abuse.

But aside rumors, what struck me about the post was its appeal to the provisions of the Geneva Conventions. I left a comment informing the bloggers there that the Geneva Conventions are not relevant to these detainees, which touched off a long and lively debate in the comment thread.

Here is my basic argument:

First, the Geneva Conventions do not offer protection to non-signatory states, as stated in Convention 4, Article 4:

Nationals of a State which is not bound by the Convention are not protected by it.

Al Qaeda is not a signatory member of the Geneva Conventions, therefore they do not apply.

But wait -- Al Qaeda isn't even a state! Can a stateless organization still be protected by the Geneva Conventions? Yes, provided that it obeys certain rules of civilized warfare. These are outlined in Convention 1, Article 13:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:(a) that of being commanded by a person responsible for his subordinates;(b) that of having a fixed distinctive sign recognizable at a distance;(c) that of carrying arms openly;(d) that of conducting their operations in accordance with the laws and customs of war.
(3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.

These preconditions are restated in Convention 2, Article 4, sections 1-3. Al Qaeda does not have to be recognized as a legitimate 'authority' by the United States, nor exist as a regular army or militia, in order to be protected. As Convention 1, Article 3 states:

The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.

Al Qaeda can be classed simply as a 'resistance movement' and fulfill the obligations of section 2 quoted above and receive protections as prisoners of war. The legal status of Al Qaeda in the eyes of the United States is not relevant (see section 3 above). Al Qaeda can agree to the provisions of the Geneva Conventions as a resistance movement. Al Qaeda has not done so, and therefore is not protected by the Geneva Conventions.

Even though we are already in the midst of this war, Al Qaeda can still agree to abide by the Conventions and receive its protections, as stated in Convention 2, Article 2:

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.

This requirement is restated in Convention 4, Article 2.

To my arguments, Terrorism News' bloggers DJEB and _H_ had a number of unusual responses. First, they argued that the Geneva Conventions class people in only two ways: prisoners of war and civilians. There is no such thing as an 'unlawful combatant' -- a term that never appears in the text of the Geneva Conventions. Captured terrorists are actually civilians. It is an intriguing view, but this interpretation creates a number of problems:

1. Bomb-throwing, gun-firing maniacs are defined as "civilians". Unfortunately, the Geneva Conventions never defines the term civilian, but somehow this definition seems far-fetched.

2. Fighters who fail to uphold the standards of civilized warfare outlined in Convention 1, Article 13 are entitled to greater protections as civilians than those who do uphold those standards and as a result are classed as prisoners of war. If the objective of the Geneva Conventions is to raise the standards for the conduct of warfare, then this definition cannot be true.

They further argue that Al Qaeda is a signatory party to the Geneva Conventions because Afghanistan signed the Convention in 1959. The government which signed this protocol was overthrown in 1973, and the next government was overthrown in 1978, and the next in 1979, and the next in 1992, before finally the Taliban rose to power in 1996. Five bloody revolutions separate the Taliban from the Afghan government which signed the Geneva Conventions. Is it still valid?

Sidestepping the standards for the conduct of warfare (and therefore classification of those captured as prisoners of war), _H_ insists that Al Qaeda detainees are, in fact, civilians. However, the Geneva Conventions do not permit civilians to violate certain standards for the conduct of warfare and receive protections, as stated in Convention 1, Article 13, section 6:

Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Of course, this would only apply if Al Qaeda detainees, regardless of their national origin, or where they are captured, or even if they have ever been to Afghanistan during their lives are, in fact, "Afghan civilians".

The most persuasive argument that the pair advance is that everyone in any country is protected by the Geneva Conventions. They base this argument on a statement in Convention 4, Article 4:

Persons protected by the Convention are those who, at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.

It is, I admit, a very odd passage. But if their interpretation is correct, then there would be no need to differentiate between prisoners of war and civilians, or to outline standards for civilized warfare (again, Convention 1, Article 13). In fact, besides specific treatment requirements, there would be no need for the Geneva Conventions to be any longer than this statement. Their interpretation is contradicted by the very next statement in Convention 4:

Nationals of a State which is not bound by the Convention are not protected by it. Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.

And further stipulations immediately follow:

The provisions of Part II are, however, wider in application, as defined in Article 13.

I don't recall the name of the hermeneutical principle, but rationally, if the interpretation of a text is contradicted by the immediately surrounding text, then the interpretation is unsound.

But overall, I think that it's quite clear that the Geneva Conventions do not apply to Guantanamo Bay detainees and won't until (1) Al Qaeda agrees to abide by the provisions of the Conventions and (2) its fighters abide by the standards for the conduct of warfare. The ball is in Al Qaeda's court.

All of which is not to say that we shouldn't treat the detainees humanely. It may be the morally right thing to do. It may be the most politically expedient course of action. But it is not legally required under the Geneva Conventions.

UPDATE: Sentence added to sixth paragraph for stylistic flow.

ANOTHER UPDATE: Jeff the Baptist has thoughts on the legal status of unlawful combatants.

13 comments:

Wes said...

And where is their outrage over terrorist beheadings and forced conversion to Islam? Nowhere I'm afraid.

larry said...

John,

Thanks for another great post! I appreciate your research and insight.

Blessings!

_H_ said...

I have no desire to go through the mill again with you john but for the sake of clarity. A correction to your opinion of the point made on my site.


They further argue that Al Qaeda is a signatory party to the Geneva Conventions because Afghanistan signed the Convention in 1959


Nobody argued that, The point was clearly made that the fact that they were or were not members of Al-qaeda has no relevance at all. As you correctly point out , the Geneva conventions are signed by nation states. Al-qaeda never has been or will be a nation state.

Stating Al-qaeda is a signatory party would be as absurd as stating that people with red hair are a signatory party. Terrorists are criminals , sick , vile, disgusting even evil if you will , but still criminals. Nobody on my site claimed that Al-qaeda is a signatory party to anything.

They can't sign the Geneva convention (what nation would they represent ?) The Geneva convention has nothing to do with them any more than it does mechanics or republicans or democrats or Christians.

You can not hold them to the Geneva conventions, but by declaring a war in Afghanistan they become (as a natural consequence) protected as civilians

Now the Taliban could fairly be excluded , They were the official government of Afghanistan , they did not abide by the Geneva rules of engagement and could be held accountable as the representatives of a nation state. But Al-qaeda can't be excluded , they do not represent any nation state and are simply terrorists (criminals)

You have opened the can of worms by declaring war on a noun. It is about as logical as a the ' war on drugs'

Could we claim that drug dealers (who I am sure we agree end up killing many of those they supply too) are not civilians ? and hence deny them any rights due to declaring a war on drugs ? Drug dealers have never signed the Geneva convention and the decent countries of the world would all state that they have declared a war on drugs. Could we torture drug dealers due to them never signing the Geneva convention ?

we are at war with them.

They could well be armed.

They probably would shoot back at any authority that tried to bring them to justice.

They probably would not hesitate to kill innocents in order to not get captured.

They end up killing thousands (at least) each year by the act of supplying drugs. (often to women and children)

They are all connected , (the drugs all come from the same sources) so we could easily claim that drug dealers are a united unit with a single aim. (to supply drugs)

clearly your whole argument applies to drug dealers too.

Whom exactly do you define as 'Al-qaeda'? They could be Americans. They could already be members of your armed forces. It is quite feasible for someone to be both an American soldier and a member of Al-Qaeda. How would you know ? That's the whole thing with terrorists , they are not open and above board. They are civilians whom commit acts of terror (which is a tactic not a nation). How do you know that Bob down the road who calls himself Al-qaeda has any connection to Bert up the road who also calls himself 'Al-qaeda' ?

for the record Al-qaeda translates to english as 'the base' and defined the training camps in Afghanistan that Osama Bin laden ran before we declared war on the Taliban (whom hosted Osama) . The base (Al-qaeda) was destroyed in 2001 and literally no longer exists. What you have now is Al-qaeda wannabees all around the world trying to emulate what Osama did. They are not centrally funded , there is no command and control centre. The base has gone. So who is Al-Qaeda ? people who claim they are ? people that you claim are Al-qaeda ? Anyone with a quran a turban and a gun ? Anyone that is shooting at you ? Anyone who you don't want to grant any human rights too ?

The Geneva convention is the wrong aspect of international law to bring into the debate.

The Geneva convention has no bearing on criminals , no matter how sick , twisted or 'evil' they may be. No matter if you decide to declare war on them(or they on you). They remain civilians under the Geneva convention (if you wish to insist that it is a war and not a criminal act)

I have spent years working against terrorism.(A sickening crime) For example the IRA(clearly terrorists) were in the main Irish ,Catholic, Civilians. They did not represent the government of Ireland but they were often 'citizens of Ireland' and when captured we had to treat them as very sick and twisted civilians whom were protected by the Geneva convention (not due to us being at war with them. that doesn't hold any water in the international court which we(in the UK) have to abide by.

They were protected due to being Irish and again not as prisoners of war due to the IRA(Irish republican army) not being the true armed forces of the nation of Ireland.

They were not recognised as a legitimate army by the united nations or any other major world body , they were simply civilians playing with bombs and guns (with very tragic consequences to the UK including some of my friends)

I am sure you still won't get the point and I doubt I will return to argue with what will clearly follow this comment. But still , I tried

I wish you luck with whatever perception you wish to hold.

Respectfully

H

:-)

John said...

Okay, then: if the Geneva Conventions are about the relationships between nation states that go to war, and Al Qaeda (being, as you suggest, a very nebulous entity) is not a state, then the Geneva Conventions are silent on terrorism.

By your own reasoning, the detainees at Gitmo are not protected by the Geneva Conventions.

_H_ said...

Okay, then: if the Geneva Conventions are about the relationships between nation states that go to war, and Al Qaeda (being, as you suggest, a very nebulous entity) is not a state, then the Geneva Conventions are silent on terrorism.

By your own reasoning, the detainees at Gitmo are not protected by the Geneva Conventions


Sorry John , not the case.

They are cvlians in a war zone (the war is against the Taliban)

You can either give them rights as a civilain or accept that you have illegaly kidnapped civilains from a nation state (in itself an international crime)

Option A sounds much better to me.

But if you prefere to state that you have kidnapped civilians from a war zone and held them without trial then on your head be it.

The International law is clear on such matters . The kidnapping of claimed criminals(without trial) would be quiet a charge against the US ( A charge that was being made before the geneva conventions were applied)

I accept that its a tough one to call (emotions run high on subjects like 9/11) but If you cease calling it a war then you are kidnapping citizens from soveriern nations (clearly a crime) Under the UN charter for starters.

If you give them basic geneva cnonvetion rights as a civilian then you have every right to keep them , put them on trial and lock them up for life (all within international law) aslong as the tribunal is not a military one but is delt with through the civilian court system.

The terrorists are protected by the geneva convetion due to a war against the soverign nation of Afghansitan (the taliban) being told to hand over the criminal (osmama bin laden) and their refusal.

If the point was not clear enough it was merely down to not wanting to leave pages on your site.

I hope I have corrected your misunderstanding of what I just posted.

Dr. Tony said...

Let's not think about the Geneva Convention for the moment. Let's think about what this country stands for (or at least says that it stands for) - we claim to be Christian yet we act more like those who crucified Christ.

Are our actions at Gitmo compatible with what we claim to believe?

John said...

But _h_, as I pointed out in my post, Convention 1, Article 13, section 6 grants armed, combative civilians GC protection only if they abide by the standards for conducting warfare.

John said...

Let's not think about the Geneva Convention for the moment. Let's think about what this country stands for (or at least says that it stands for) - we claim to be Christian yet we act more like those who crucified Christ.

Are our actions at Gitmo compatible with what we claim to believe?


Anyone want to take a go at this? I want to stay focused on the legal issue.

_H_ said...

As stated John , you don't get the point and this will be my last comment on the subject.

I have stated that Al-qaeda are next to impossible to define. And the Geneva convention is clear on how to decide what aspects of the Geneva convention apply to captured person. The rights and protections granted to POWs are enumerated in detail in the Third Geneva Convention. "Nonprivileged" or "unlawful" combatants are protected under the Fourth Geneva Convention

Article 5 reads:
"The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

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 enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

Now I have seen no evidence of any crimes being committed by anyone in Afghanistan so the only way we could decide if they are civilians (hence protected as civilians) Or Soldiers (hence protected as soldiers) is to follow the instructions of the Geneva convention and hold a competent tribunal (which has not been done)

If the tribunal decides that they were civilians fighting in a combat zone then they can either prosecute them as civilians or keep them prisoner under the terms of holding civilians within the Geneva convention.

Nobody is outside the law John.

They are either prisoners of a war or they are criminals.As prisoners they have the right of a tribunal. As civilians they have the rights of due process before a civilian court. Holding people in limbo land , where they are not protected as civilians and not classed as prisoners of war is tantamount to kidnapping.

I will go further and define as fascist the tendencies of any country that wishes to place its prisoners outside of international or civil law and hence creating a new form of sub human that has no rights and no claim on justice.

You may not be aware that according to information US military intelligence gave to the International Committee of the Red Cross, an estimated 70 percent to 90 percent of those arrested in the "war on terror" were not actually captured by US or coalition forces. They were bounty hunted by local Afghans

Now this process was done by the airdropping of leaflets over Afghanistan offering huge amounts of cash (enough to make an afghan rich for life) for the capture of any Al-qaeda members in the area. There is not a single drop of evidence to suggest that any of the 80 to 90 % of prisoners had committed any crime , or were members of Al-qaeda.

I don't doubt that many Afghans would gladly sell their own mother to get that kind of cash and I also do not doubt that if I looked Muslim and was wondering through some part of Afghanistan the temptation of the locals to kidnap me , hand me over to the US and tell them that I was Al-qaeda would be impossible to resist.

So lets drop the armed , bomb throwing metaphors for a moment and define what is , or is not Al-qaeda ? Can the US be certain that the person handed over to them (in up to 90 % of cases by their own definition) or the person they just captured( In up to 30 % of cases by their own definition) is Al-Qaeda ?

Of course they can not be certain. and even if they were 'certain' how would international law define if the soldiers were telling the truth or just arrested some muslim whom looked at them funny ?

That is why the geneva convention insist on a combatant tribunal to define status.

Prisoner of war , or civilian

To further back up the legality of the point

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.

Simply put . It is the same argument. you are either a prisoner of war or a civilian. If you are a civilian then you can not be held without judicial tribunal.

You do not seem to understand that unless you give them status as civilians (and hence hand them to a civilian court as defined under their rights as civilians under the Geneva convention) or as prisoners of war (and hence protected by the Geneva convention) you are simply kidnapping people.

You seem content to do that. As a religious man ??

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.


Now of course if they are civilians who have committed any belligerent act (as defined by tribunal as required under the Geneva convention) then they should be treated as criminals and tried in a civil court.

If we really want to split hairs on this John. The Geneva convention prevents the US from keeping civilians from a war zone (armed or not , combatants or not) in any kind of camp without due process. unless they are defined as POW's

supporting the kidnap of civilians of which you personally have no evidence to suggest they are guilty of any crime is not moral John.

Civilians are always protected under the convention (at the basic minimum it they are protected just for as long as it takes to hand them over to a civil judicial process.

As stated . I will cease replying to your comments from here on in. I may well come back to read your reply but I have no doubt that the simple point is something you are refusing to grasp.

My only guess is that you refrain from doing so due to either political , religious or nationalistic beliefs that prevent you from being able to see international law.

I would make one request. That you take a serious look at the morality of the stance that you take. We all accept that the terrorists are sick , nasty people . But we are supposed to be the good guys and they are supposed to be the bad guys.

If you find yourself questioning the rights of human beings (regardless of how evil) to due process then I would suggest that it is time to look again as to which side of the morality line you really wish to sit. Bad guys don't play by the rules. We don't expect them too. The good guys always have morality , freedom and Justice That's is what makes them the good guys.

I respectfully request you remain steadfast in your desire to be one of the good guys and refrain from allowing the pain and suffering of so many of your people on 9/11 to cloud your assessment of morality. If you truly are a man of faith then I do not doubt you will understand what I am trying to say. If you do not, then I would wonder if I had been debating with a fundamentalist about the status of other fundamentalists


I wish you all peace.

John said...

From the text of Article 5, I agree that the Gitmo detainees should face military tribunals. From what I have read in news reports, this is a common event at Guantanamo Bay.

I respectfully request you remain steadfast in your desire to be one of the good guys and refrain from allowing the pain and suffering of so many of your people on 9/11 to cloud your assessment of morality. If you truly are a man of faith then I do not doubt you will understand what I am trying to say. If you do not, then I would wonder if I had been debating with a fundamentalist about the status of other fundamentalists

You will find that when exegeting a text, I am immune to emotional appeals. The text is the text is the text.

The next stage of research into the Geneva Conventions would be looking into the "original intent" of various provisions. But I doubt that either of us has had time for that.

I'd been an informative (and tough!) debate. Feel free to visit anytime.

John said...

News reports like these.

Lorna said...

all people have human rights and should be given love and respect - that's what Grace is.

John said...

One could certainly make a good case for that, Lorna -- just not from the Geneva Conventions.