U.S.: Washington Debates Application Of Geneva Conventions
By Andrew Tully
WASHINGTON, July 11, 2006 (RFE/RL) -- The status of detainees in the war on terror is the subject of much dispute in Washington. A major ruling by the Supreme Court on June 29 highlighted that when justices ruled the White House must have permission from Congress to use military tribunals to try suspects at Guantanamo Bay, Cuba.
But the Supreme Court ruling did not address other key questions about the status of the captives, including whether they enjoy the protections of Article 3 of the Geneva Conventions. That provision forbids "humiliating and degrading treatment" of prisoners, including for the purposes of obtaining information.
There are about 450 prisoners being held at Guantanamo Bay. Most were captured in Afghanistan in late 2001 and early 2002 when U.S.-led forces routed the Taliban.
More Than Four Years In Custody
The men are being held because of their suspected affiliation with the Taliban and Al-Qaeda, which is blamed for the terrorist attacks in the United States on September 11, 2001.
The prisoners are awaiting trials by special military commissions. In the meantime, U.S. military interrogators are questioning many of them in an effort to learn the whereabouts of senior leaders of the two militant groups, as well as any plans they may have for further attacks.
Some in the administration of U.S. President George W. Bush argue that the protections of the Geneva Conventions do not extend to prisoners in the war on terror and, if applied, would handicap U.S. efforts to track down Al-Qaeda members.
Jim Phillips, who studies foreign affairs and security issues at the Heritage Foundation, a private policy research center in Washington, aruges that the prisoners are combatants who themselves have violated the terms of the Geneva Conventions and thus forfeit its protections.
The Importance Of Uniforms
Most specifically, he says, these “illegal combatants” do not wear uniforms, making them indistinguishable from civilians during fighting.
"Everybody that is deemed to fall under the criteria for Geneva should be treated that way," Phillips says. "But some of these terrorists who are not recognized as soldiers don't deserve to be treated as soldiers. I think part of the question is: 'What is humiliating?' They would -- may -- argue that just being put in jail is humiliating, since they're doing the work of God, as they see it. If they're not deemed to qualify for Geneva-type treatment, I don't think they should be [given Geneva protections]."
Phillips believes the detainees might still have useful information despite their long captivity and that it is worth trying to obtain it from them.
"They may [still have useful information], if they know the identities of certain people or if they know some kind of techniques or tactics," he says. "But over time, the amount of useful information undoubtedly will diminish. But there could be some nuggets in there that could be helpful."
Phillips says that even if those "nuggets" were no longer useful, it would be unadvisable to release the Guantanamo prisoners. He claims that some of those who have been set free have resumed fighting against the United States.
Once The Gold Standard
Thomas Malinowski of Human Rights Watch says one reason for Washington to observe Article 3 of the Geneva Conventions is that U.S. soldiers may one day become prisoners. They cannot hope to receive POW protections if Washington waives those protections for some of its enemies, Malinowski argues.
That is one reason why military officers are often among those who argue the most forcefully against disregarding the Geneva Conventions.
"Our military has felt strongly for many years that the United States should set the gold standard for respect to the Geneva Conventions because this stuff is there to protect our men and women in uniform," Malinowski says. "And there are plenty of historical examples in which our prisoners have been treated better than the prisoners of other countries because our country has respected the Geneva Conventions. So it's a very practical concern for our military."
Some human rights advocates have suggested that instead of proposing to disregard any parts of the Geneva Conventions, the U.S. government should work with the international community to revise the rules of war to account for unconventional combatants such as Al-Qaeda and the Taliban.
But Malinowski says he believes the Geneva Conventions isn't broken and so doesn't need to be fixed. He says the rules for prisoners -- whether prisoners of war or civilian internees -- work today as well as they have in past conflicts.
"If you're an irregular force like Al-Qaeda and you don't play by the rules, you don't wear uniforms, you don't meet the criteria of the Geneva Conventions, then you're not entitled to POW status," Malinowski says. "But you are still protected by this Article 3, which requires humane treatment of all prisoners. And that's a pretty good standard. It does put these people on a lower footing than soldiers who play by the rules, but at the same time it doesn't leave them without any protection whatsoever."
Lack Of Protections Leads To Abuse
Malinowski says once prisoners are left without legal protection, they invariably become subject to abuse. He says history is full of examples of the torture and other abuse of prisoners who aren't protected by the law.
Malinowski says the laws we have now are enough to prevent abuses, and they even make the distinctions between legitimate soldiers and terrorists.
U.S. news media reported on June 5 that the Pentagon is debating whether to retain mention of Article 3 in its U.S. Army Field Manual on interrogation.
However, that report appeared to be contradicted on July 11 by Britain’s "Financial Times." The newspaper cited U.S. military officials as saying privately that the Pentagon has decided that all detainees held in U.S. military custody are entitled to the protections of the Geneva Conventions.
Copyright (c) 2006. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036. www.rferl.org
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