Thursday, June 17, 2004

What Does International Law Really Say?

I'm tired of hearing about how the U.S. is violating the Geneva Conventions and other "international law" (see this link to see why I believe this term requires scare quotes). So I looked up the Geneva conventions and the UN Convention against Torture to see what they REALLY say.

First a little background information on the documents. The Third Geneva Convention describes the treatment of prisoners-of-war, including who is a POW and endless regulations on how they are to be treated. The Fourth Geneva Convention describes how civilians are to be treated. And the UN Convention on Torture defines torture and explains how torturers are to be punished and torture is to be prevented. The last is a more recent document which was only ratified by the U.S. ten years ago, the others date from ~1950.

Third Geneva Convention (Prisoners-of-War)

Article 4 defines who qualifies as a POW and hence is protected under this treaty as follows:

"Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:

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.

4. Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

5. Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

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."

Terrorists clearly do not qualify under any of these six categories. The closest would be the second one; however, terrorists do not generally "a fixed distinctive sign recognizable at a distance" or "carry arms openly" and they most certainly do NOT "the laws and customs of war." Therefore, the Third Geneva Convention grants NO rights to terrorists.

Fourth Geneva Convention (Civilians)

Protected persons under the Fourth Geneva Convention are defined as:

"Art. 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.

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."

This one is a bit more tricky. Terrorists would qualify under the first paragraph. The second paragraph brings up the question: do terrorists count as Nationals of their original state or do they sacrifice that by affiliating with state-less terrorist groups? Let's assume that they qualify as Nationals of whatever state they are citizens of. Even if this is the case the last sentence in the above quote excludes them from protection as protected persons, as the countries they are from generally "have normal diplomatic representation in the State in whose hands they are." Even assuming they would be protected persons there is another loophole by which they could be excluded:

"Art. 5 Where in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention."

Under the most generous interpretation possible, even if terrorists would have been protected, they are no longer if they are "definitely suspected of or engaged in activities hostile to the security of the State [i.e. U.S.]" if that is "prejudicial to the security of [the U.S.]."

This explains why the secret detention
of some prisoners in Iraq is not in contravention to the Geneva Conventions.

Geneva Convention Conclusions

Terrorists are not protected under any part of the Geneva Convention (feel free to read the References at the bottom of this post to see for yourself). Journalists who claim the Geneva Convention rules "unquestionably apply" to prisoners in Iraq are either lying or inexcusably ill-informed. Only members of Saddam's military who were captured in uniform, carrying arms openly, and haven't committed any war crimes are eligible for Geneva's generous rights and privileges. Others need not apply. Does this mean that the U.S. has not violated "international law" in its treatment of prisoner and detainees? Not necessarily, there's more.

UN Convention on Torture

The UN Convention defines torture as:

"the term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

There are two unclear portions of this definition: how is "severe pain or suffering" defined (i.e. how severe is severe), and the last sentence, which opens a loophole if it arises as part of "lawful sanctions." A clue is perhaps provided in the following section:

"Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political in stability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture."

This makes it pretty clear that there are no exceptions to the provisions of the treaty. There is still the question of what "severe" means but less us presume that our behavior of detainees in Iraq qualifies, does that mean the U.S. has violated "international law"? We can now answer with a firm maybe.

My Opinion

I would define "severe" as "causing permanent harm." Anything short of this threshold does not constitute torture in my eyes. Therefore only a very small number of the "torture" allegations made against the U.S. actually qualify as such. Interrogation techniques like using dogs for intimidation, depriving prisoners of sleep, and "mild non-injurious physical contact" (to quote the Pentagon) do not qualify as torture.


Third Geneva Convention
Fourth Geneva Convention
UN Convention on Torture

1 comment:

Andrew said...

As I commented at Drezner, my understanding is that at least some of the "ghost detainees" are battlefield detainees or members of the Iraqi Armed Forces. As such, the secret detentions authorized for civilian spies and saboteurs in occupied territory would not apply. I don't see any provision in the Third GC that allows for delay in registering actual POWs.

As I also point out, the GC grants one right to accused terrorists; namely the right to an Article 5 tribunal before being declared an illegal combatant and losing GC protection. The determination that scores of prisoners are illegal combatants must be made retail, not wholesale.

And last, while I agree that a number of the practices you mention are not torture, I wouldn't allow that for coerced sex acts. Unfortunately, worse videos are still secret.