and Geneva: The Missing Questions
is hardly unusual for all sides of a given controversy to miss the
central point; it's what most of us do most of the time. But the
skirting of salient issues surrounding the prisoners being held
at the American Guantanamo Bay base in Cuba seems more egregious
doubt if the prisoners at Gitmo are being treated much more inhumanely
than people thrown into drunk tanks in county jails around the United
States and around the world. The key question is their status. Are
they "prisoners of war" or are they "detainees"
or "unlawful combatants" (a category U.S. officials seem
to have invented in the last few weeks)?
reluctance of the United States to deem them "prisoners of
war" has something to do with the fact that this country is
so reluctant to be honest about its warfare and get a declaration
of war from Congress before sending bombers. But it mainly has to
do with the fact that our leaders want to interrogate these prisoners,
and if they're called "prisoners of war," that is forbidden
by the 1949
RANK AND SERIAL NUMBER
the main thing about official prisoners of war. A prisoner of war,
as members of the US military are briefed when going into any kind
of action where imprisonment is a possibility, is authorized under
the Geneva Convention to respond to interrogation with name, rank
and serial number and nothing more. Signatories to the convention
promise they won't try to extract further information from POWs
through other means, ranging from promises, to intimidation, to
torture. Furthermore, prisoners are to be released when the war
is over, without being put on trial unless there is evidence of
personally committing war crimes.
doesn't mean those holding the prisoners can't ask further questions
if they think some prisoner might be just busting to tell more.
But they're not allowed to use torture to get more questions answered
and they aren't allowed to impose punishment or discipline for refusal
to go beyond the minimum Geneva Convention requirements.
theory is that there is or should be some modicum of honor in war.
That's a concept that might reflect well on those who make the attempt,
but it still seems a little strange to me in the context of an activity
whose main objective is to kill as many as possible of the other
guys. The carrot in the deal is that if you go to war with a signatory,
an enemy who captures some of your guys is supposed to treat them
humanely also, and its functionaries can be condemned and maybe
even tried as war criminals if they don't.
whether or not this is a "new kind of war" not contemplated
by those who were drafting treaties in 1949 or not and so far
it doesn't seem to be, except that it hasn't been declared and it
involves new technologies the United States government signed
it. If it wants to maintain anything resembling a semblance of the
moral high ground (which one might think was important to people
who repeatedly say their objective is to "eradicate evil")
it would be well advised to go the extra mile when it comes to treaty
provisions rather than trying to shave its putative obligations.
ON THE DEFINITION
we have the Bush administration outstripping "depends on what
the definition of 'is' is" Clinton in semantic legerdemain.
Despite the fact that administration spokesmen have repeatedly called
the present conflict a "war" and have used the rhetoric
of war to bolster support for the president (and for government
as an institution), they want to treat the prisoners at Guantanamo
as something other than prisoners of war.
is little known is that the Geneva Convention actually anticipated
this kind of uncertainty or ambiguity about status of prisoners.
So the authors put it right there in Article 5: "Should any
doubt arise as to whether persons ... belong to any of the categories
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."
how I read all this: Until you have determined through proper procedures
whether a given person is a bona fide POW or something else, you're
supposed to treat them as a full-fledged POW under "the protection
of the present Convention."
a "competent tribunal" not the president and a few close
advisers but something more formal in which the detainee has certain
rights and some modicum of due process has determined that they
are something other than POWs you can ask them more questions more
persistently, and perhaps even threaten them with longer detention
if they don't cooperate. Until such a determination is made, however,
they are to be treated just like a POW under the convention.
it happens, there are American laws on the subject. In 1997 the
Pentagon promulgated a broad set of military regulations concerning
the treatment of prisoners and other detainees. You would think
a country devoted to the rule of law would have applied its own
regulations say, as a Feb. 13 New York Times story put it,
that "all captives shall be treated humanely under the Geneva
Protocols until their status is determined by a screening tribunal
of three commissioned officers. They require that a written record
be made of the proceedings, that the prisoner be advised of his
rights, be allowed to attend the sessions, can have an interpreter,
can call witnesses and that his status shall be determined by a
majority vote based on a preponderance of evidence." (That's
a relatively lenient legal standard, much less than "beyond
a reasonable doubt," but a lot stricter than "because
I feel like it" or "because it suits my political agenda.")
1997 regulations don't mention a right to a lawyer during these
screening proceedings to determine proper status. But they do say
that those determined by these tribunals not to be entitled to POW
status "may not be executed, imprisoned, or otherwise penalized
without further proceedings to determine what acts they have committed
and what penalty should be imposed."
this mean that those determined not to be a POW would have to be
released unless they are determined to be guilty of something by
a judicial proceeding? I haven't read the full regulations and wouldn't
venture an opinion without consulting several lawyers.
AUTHORITY, NO EXCUSE
is perfectly clear (it seems to me) is that under both the Geneva
Convention and the laws of the United States, neither President
Bush nor Secretary of Defense Donald Rumsfeld has any legal authority
to make a blanket determination that all those at Guantanamo are
"illegal combatants," rather than "prisoners of war."
of those detained has a right under the Geneva Convention to have
his status determined on a case-by-case individual basis by a "competent
tribunal." US laws and military regulations spell out in further
detail just what is entailed in the screening process, including
the right to be present, have an interpreter and call witnesses
while his status is being determined.
might be a bit of a stretch to argue that Bush and Rumsfeld, by
declaring unilaterally and without any semblance of individual attention
that all those at Guantanamo fall into one category or another,
are breaking US law. But it isn't all that much of a stretch. At
the very least they are ignoring US law.
screening tribunals have been set up without informing anybody in
the media, they are not authorized by law to characterize prisoners
in this way. Categorizing is not their function; their job is to
accept the determination of status decided by a "competent tribunal"
and proceed accordingly. As nearly as I can tell they are not even
allowed to try to influence the proceedings.
administration wants to evade all this Geneva Convention stuff and
sell the notion that it's fine and dandy to treat the prisoners
"in the spirit" of the convention. But the convention
doesn't permit that. It doesn't require that its provision apply
only in state-vs.-state conflicts or formally declared wars; several
types of conflicts are mentioned. And it very specifically says
that if there's doubt about the status of somebody detained that
person is to be offered all the protections of the convention until
the status is determined by a formal and competent procedure.
frankly, then, all this talk about whether the Geneva Convention
applies to these particular prisoners is a bunch of evasive balderdash.
There might be doubt about whether those in Guantanamo are part
of a regular military force or a bunch or illegal irregulars. But
they were taken by American regular military forces, and until their
status is determined properly, the US is obligated to abide by the
Geneva Protocols in its treatment of them.
can understand why US officials would want to evade the clear implications
of the treaty they have signed. They want to question these people
and garner as much information from them as possible. I can understand
that desire. I can even cut a bit of slack for what seems likely
that the US military made its decisions about moving and
housing prisoners without understanding the implications of the
there's been plenty of time to figure it out. So as an American
I'm more than a little ashamed that my government would so blatantly
cut corners and try to obfuscate the issue in such a transparent
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