Pentagon erases Geneva rule from Army field manual

[Rach3]

In rewriting the field manual, the Pentagon has apparently decided to remove language referring to certain 3rd Geneval Convention provisions for human rights in treatment of prisoners of war. The core instructions for Army interrogators will thus no longer include certain provisions explicitly, effectively undermining them. From the http://www.latimes.com/news/nationworld/nation/la-na-torture5jun05,0,7975161.story?coll=la-home-headlines :

Army Manual to Skip Geneva Detainee Rule
The Pentagon's move to omit a ban on prisoner humiliation from the basic guide to soldier conduct faces strong State Dept. opposition.

WASHINGTON — The Pentagon has decided to omit from new detainee policies a key tenet of the Geneva Convention that explicitly bans "humiliating and degrading treatment," according to knowledgeable military officials, a step that would mark a further, potentially permanent, shift away from strict adherence to international human rights standards.
...
The Pentagon tried to satisfy some of the military lawyers' concerns by including some protections of Article 3 in the new policy, most notably a ban on inhumane treatment, but refused to embrace the actual Geneva standard in the directive it planned to issue.

http://www.latimes.com/news/nationworld/nation/la-na-torture5jun05,0,7975161.story?coll=la-home-headlines

To any Martians visiting our beautiful planet and not yet familiar with our Geneva Conventions, welcome! and here's the relevant text, from the Third Convention enacted in 1950:

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.

To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;

(b) Taking of hostages;

(c) Outrages upon personal dignity, in particular, humiliating and degrading treatment;

(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

The relevant text is highlighted.

 

[russ_watters]

That's a tough one - it is vague and ill-defined. To some, for example, the very fact that they are imprisoned could be considered humiliating and degrading.

I don't know for sure, but it seems to me that one of the reasons why we didn't ratify all the conventions is because some are unreasonable (mail? c'mon) and others like this one are ill-defined and perhaps even a little sappy.

 

[Gokul43201]

When you think something is ill-defined, you can either :

i. Clarify this requirement with additional explanatory notes so as to still retain the spirit of the clause, or

ii. Get rid of it entirely, and completely void the intent of that clause.

 

[Pengwuino]

Wait a second, prisoners of war? Sounds like this article is explicitely not talking about prisoners of war, rather civilians.

 

[russ_watters]

No one at 'Gitmo or an Iraqi prison would be considered a civilian (if they were not fighting, then they should be released).

 

[Bystander]

"In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions: ..."

That just about excludes every situation to which such a convention could be applied.

Post-1950 precedents for prisoner treatment? Nam. Long's things get no worse than what went on in the Hilton, no one's got any gripes. Right?

 

[Rach3]

That's a tough one - it is vague and ill-defined. To some, for example, the very fact that they are imprisoned could be considered humiliating and degrading.

I don't know for sure, but it seems to me that one of the reasons why we didn't ratify all the conventions is because some are unreasonable (mail? c'mon) and others like this one are ill-defined and perhaps even a little sappy.

As far as I can tell, it reduces to the fact that international law is spotty and rarely enforced, and thus lacks precedent. If this were a national law there'd actually be legitimate-looking courts making interpretations and setting precedents. With precedents the language above could easily be well-defined; without precedents the interpretation becomes a matter of opinion apparently. Though if the Pentagon wants to remove some of the language from the Army Field Guide, the intent seems pretty obvious - they wish to undermine one particular clause in practice, without explicitly withdrawing from the Convention.

 

[Moonbear]

Wait a second, prisoners of war? Sounds like this article is explicitely not talking about prisoners of war, rather civilians.

Follow the link provided by Rach. The entire Geneva Convention is specifically written regarding Prisoners of War, thus it's not repeated in every article.

 

[Gokul43201]

What about the legality of it? Can you sign a Convention and then say you'll ignore this bit here and that one there?

 

[Moonbear]

What about the legality of it? Can you sign a Convention and then say you'll ignore this bit here and that one there?

Not publishing it isn't illegal, but if the provisions are violated, then they'd still be held responsible according to any penalties named by the convention. Not informing the Army of these rules seems pretty foolish for that reason.

If there are problems with ambiguity of wording, then that should have been addressed before it was drafted and signed. Otherwise, it seems the prisoners get to call the shots there as to what is degrading and humiliating if it is not otherwise further defined. It seems it needs to be amended with a clarification, otherwise just putting someone in handcuffs in front of others would qualify as humiliating and degrading.

 

[Gokul43201]

Not publishing it isn't illegal

No doubts there, but the point of not publishing it is to safeguard themselves against being accused of violating guidelines of their own field manual. An offense that could previously lead to a court-martial, now affords legal wiggle room. The removal of the text serves no purpose if members of the military are going to adhere to that clause. It only serves a purpose if they do not.

I still think it's a dirty cheat. If there is vagueness in it that gives prisoners an easy out, and it sure looks like there is, the correct solution would be to clarify the clause rather than dismiss it.

As for Russ' statement that civilian prisoners at Gitmo or in jails in Iraq should be released from there, what mechanism exists to ensure that? How does a detainee prove that s/he is a civilian?

 

[Moonbear]

No doubts there, but the point of not publishing it is to safeguard themselves against being accused of violating guidelines of their own field manual. An offense that could previously lead to a court-martial, now affords legal wiggle room. The removal of the text serves no purpose if members of the military are going to adhere to that clause. It only serves a purpose if they do not.

Well, it seems in terms of the Convention itself, the individuals are not the ones responsible, according to Article 12:

Article 12

Prisoners of war are in the hands of the enemy Power, but not of the individuals or military units who have captured them. Irrespective of the individual responsibilities that may exist, the Detaining Power is responsible for the treatment given them.

Prisoners of war may only be transferred by the Detaining Power to a Power which is a party to the Convention and after the Detaining Power has satisfied itself of the willingness and ability of such transferee Power to apply the Convention. When prisoners of war are transferred under such circumstances, responsibility for the application of the Convention rests on the Power accepting them while they are in its custody.

Nevertheless if that Power fails to carry out the provisions of the Convention in any important respect, the Power by whom the prisoners of war were transferred shall, upon being notified by the Protecting Power, take effective measures to correct the situation or shall request the return of the prisoners of war. Such requests must be complied with.

Then articles 129 and 130 state:

Article 129

The High Contracting Parties undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention defined in the following Article.

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Each High Contracting Party shall take measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches defined in the following Article.

In all circumstances, the accused persons shall benefit by safeguards of proper trial and defence, which shall not be less favourable than those provided by Article 105 and those following of the present Convention.

Article 130

Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.

I'm not sure if I'm reading all of this right, but it sounds like ultimately, it's the US held responsible, or whoever gave the order is responsible (but is NOT telling someone NOT to do something covered under that?), not the individual soldiers, except in the case of these "grave breaches," which then each signing country is expected to check are not occurring on the part of individuals.

What's bothersome is that there are no conditions or penalties spelled out for breaches of the convention other than that those actions should be stopped immediately and the prisoners released back to their home nation.

The whole thing seems to be pretty vague about what happens if you just disregard it. There is an article stating that they are required to disseminate the text:

Article 127

The High Contracting Parties undertake, in time of peace as in time of war, to disseminate the text of the present Convention as widely as possible in their respective countries, and, in particular, to include the study thereof in their programmes of military and, if possible, civil instruction, so that the principles thereof may become known to all their armed forces and to the entire population.

Any military or other authorities, who in time of war assume responsibilities in respect of prisoners of war, must possesses the text of the Convention and be specially instructed as to its provisions.

I bolded that last part. Obviously, we're all sitting here reading it, so it's widely available, but it sounds like only those who are actually responsible for prisoners of war MUST have the full text and be given special instruction with regard to it. All the rest of it reads like it's just a recommendation, not a requirement.

So, does it get someone off the hook if it's not in their field manual, but is still widely available online? If anything, I think it has more of the chance of forcing people higher up the command chain to be held responsible for not providing instruction if someone is handling prisoners of war without having that clause provided to them. But, it's all written in political legalese, so I'm not sure if I'm completely reading it all right.

 

[Manchot]

No one at 'Gitmo or an Iraqi prison would be considered a civilian.

Pray tell, how do you know this? Because Bush and/or the military assures you that much? I think it's pretty clear what either of their words are worth...nothing. On the one hand, we have Bush lying in pretty much everything he says (including little things, like saying that he caught a 7.5 pound perch). On the other, we have the cover-up of the Haditha killings. My trust of the federal government is at an all-time low. Ironic, isn't it? By the classical definition, that would make me a conservative, and I should nominally support Bush.

 

[scott1]

Pray tell, how do you know this? Because Bush and/or the military assures you that much? I think it's pretty clear what either of their words are worth...nothing. On the one hand, we have Bush lying in pretty much everything he says (including little things, like saying that he caught a 7.5 pound perch). On the other, we have the cover-up of the Haditha killings. My trust of the federal government is at an all-time low. Ironic, isn't it? By the classical definition, that would make me a conservative, and I should nominally support Bush.

There not civilians. They were was a formal decleartion of war against Al-Qudea which means that anyone who is currently an Al-Qudia opertive is currently considerd an emeny combant which means that there not civilans!

 

[Gokul43201]

scott, an assertion is not a proof.

Just saying "everyone at Gitmo is al Qaida" does not make them so. In fact, it is known to be untrue. Some of them have had to be released after having spent several months there with no access to legal counsel, because when it finally came down down proving that they were al Qaida, the Goverment had no case.

 

[Manchot]

There not civilians. They were was a formal decleartion of war against Al-Qudea which means that anyone who is currently an Al-Qudia opertive is currently considerd an emeny combant which means that there not civilans!

First of all, it's Al-Qaeda, no Al-Qudia.

Secondly, I think you're missing the point. I don't how many at Gitmo were Al-Qaeda operatives or not. You don't know how many were Al-Qaeda operatives. No one does: they haven't been tried. All we have is the word of the federal government. Once you start allowing people to be jailed without any justification or evidence, you have a police state.

Thirdly, assuming for a moment that every Gitmo prisoner actually is an enemy of the US (and that's a big assumption), you still arguing semantics. As Juliet said, "A rose by any other name would smell as sweet." Just because you call someone an "enemy combatant" doesn't mean that you can magically treat them any differently from a POW.

 

[kyleb]

That's a tough one - it is vague and ill-defined. To some, for example, the very fact that they are imprisoned could be considered humiliating and degrading.

Yet the humiliation of imprisonment itself can't rightly be covered under an agreement not to humiliate prisoners. What the statute does address is things along the lines of the naked-prisoner pyramid photo shoots our solders have been putting prisoners though, and clearly the Pentagon has become less inclined to advise our solders against engaging in such disrespect for human rights.

 

[Moonbear]

There not civilians. They were was a formal decleartion of war against Al-Qudea which means that anyone who is currently an Al-Qudia opertive is currently considerd an emeny combant which means that there not civilans!

As I was reading through the language of the Geneva Convention, something related to that caught my attention. In defining a Prisoner of War, they include:

1. Persons belonging, or having belonged, to the armed forces of the occupied country, if the occupying Power considers it necessary by reason of such allegiance to intern them, even though it has originally liberated them while hostilities were going on outside the territory it occupies, in particular where such persons have made an unsuccessful attempt to rejoin the armed forces to which they belong and which are engaged in combat, or where they fail to comply with a summons made to them with a view to internment.

Does that mean in countries where military service is compulsory for all young men, pretty much any adult male could be picked up and detained under this definition?

Also, there are conditions where civilians can be held as prisoner's of war:

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.

Both of these are found in Article 4.

 

[scott1]

scott, an assertion is not a proof.

Just saying "everyone at Gitmo is al Qaida" does not make them so. In fact, it is known to be untrue. Many have had to be released after having spent several months there with no access to legal counsel, because when it finally came down down proving that they were al Qaida, the Goverment had no case.

What about keeping people in prison while there on trial.
Still there not civilans.

 

[scott1]

You don't know how many were Al-Qaeda

I think it was estimated to be about 4,000 members around the world.

 

[Manchot]

That's a tough one - it is vague and ill-defined. To some, for example, the very fact that they are imprisoned could be considered humiliating and degrading.

To some, the idea of prison is "cruel and unusual punishment." Does that mean that we should imprison no one domestically? You have to draw the line somewhere, and by not explicitly doing so, the Pentagon is intentionally blurring that line.

 

[Manchot]

What about keeping people in prison while there on trial.
Still there not civilans.

I think it was estimated to be about 4,000 members around the world.

I don't see what you're getting at. Frankly, you're not making any sense. First of all, keeping people in prison while they await trial is completely different from keeping people in prison indefinitely. In the former case, there is a precise amount of time that they will be held, and they've actually been charged with a crime. In the latter, there are no charges, and the government claims the authority to hold them however long they feel like it.

Secondly, "still there not civlians" is not an argument. It's an assertion (and a poorly worded one at that). You have yet to provide any evidence that some of the men held at Gitmo aren't just civilians who happened to be in the wrong place at the wrong time. That's a requirement of this country's legal system. You know, innocent-until-proven-guilty, that sort of thing?

As for how many people in Al-Qaeda, I was asking a rhetorical question about how many Al-Qaeda people are actually in Gitmo, not an actual question of how many there are total...

 

[Gokul43201]

What about keeping people in prison while there on trial.
Still there not civilans.

But when you arrest them, you give them a quarter and let them call a lawyer. And shortly after, the lawyer makes a case to a judge who decides whether on not the person need be detained.

Besides, who's not a civilian? Someone spending the night in jail prior to her court appointment?

Please make clear, logical statements.

 

[Moonbear]

Just because you call someone an "enemy combatant" doesn't mean that you can magically treat them any differently from a POW.

That's what article 3 is addressing. (No wonder Pengwuino was confused about it...it too several re-readings to figure it out...I hope I finally have it right. ) It covers POWs, and anyone else detained, basically saying those are the minimum human rights standards for any detainee, regardless of the additional specific rules for POWs.

What criteria are they using to say that the detainees at Gitmo are NOT POWs and defined as enemy combatants instead? The more I'm reading, the more it sounds like the Geneva Convention would cover members of Al-Qaeda as POWs, either under Article 4.2(a) or 4.6, or is it that it isn't a war declared on a specific nation but on a terrorist organization that provides the loophole for those being held there?

 

[loseyourname]

I was under the impression that the detainees at Gitmo are classified as enemy combatants precisely so that they can be treated as POWs and therefore not afforded the legal rights that a criminal detainee has, such as habeus corpus and the right to legal counsel.

 

[Moonbear]

I was under the impression that the detainees at Gitmo are classified as enemy combatants precisely so that they can be treated as POWs and therefore not afforded the legal rights that a criminal detainee has, such as habeus corpus and the right to legal counsel.

Oh, right...nevermind. This thread has gotten me all confused. Trying to read pages and pages of legalese will do that!

 

[kyleb]

That isn't right. They aren't afforded the legal rights that a criminal detainee has simply because they are not criminal detainees as long as we fail to charge them with crimes. On the other hand, we call them enemy combats because we refuse to acknowledge their rights as POWs.

 

[Moonbear]

That isn't right. They aren't afforded the legal rights that a criminal detainee has simply because they are not criminal detainees as long as we fail to charge them with crimes. On the other hand, we call them enemy combats because we refuse to acknowledge their rights as POWs.

What rights as POWs are they being denied?

 

[Gokul43201]

What rights as POWs are they being denied?

Two summers ago, the SC ruled that the Gitmo detainees had the right to private legal counsel. Alittle over a year following that decision (so, sometime last summer) there was this report that came out showing that about two-thirds of the detainees had still to be assigned legal counsel.

I'll google and see if I can resurrect any of this...

http://www.defenselink.mil/releases/2004/nr20040707-0992.html

After a year in prison, the DoD finally agreed to let the prisoners contest their "enemy combatant" status to a military tribunal. They (DoD) still continued to hedge on the detainees' right to independent counsel as guaranteed by the SC in Rasul vs. Bush (see link below)

http://www.cdi.org/news/law/gtmo-sct-decision.cfm

Further, there were immdiately reports about the legal incompetence of the members of the tribunal and subsequent reports that the military hearings were not much more than a sham.

http://www.dailykos.com/story/2005/7/31/203425/148

 

[kyleb]

How about the people who were tortured to death? I'd think anyone can see those cases are obvious examples.

 

[Moonbear]

First, in relation to the original question here, I found this in Article 17, which seems to make the provision in Article 3 redundant.

No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind.

Two summers ago, the SC ruled that the Gitmo detainees had the right to private legal counsel. Alittle over a year following that decision (so, sometime last summer) there was this report that came out showing that about two-thirds of the detainees had still to be assigned legal counsel.

If they are POWs, then no provision of the Geneva Convention seems to require they fall under the jurisdiction of civil courts, only military courts. Their detainment isn't subject to appeal and doesn't require a trial for the duration of the conflict, as far as I can tell. Only if they are being tried for a crime for which additional punishment would be meted out, not just being held as a POW, would they be entitled to a trial. But, if they are just POWs who have not committed any other crime, then they are just held. So, it doesn't matter what the Supreme Court ruled, as far as I can tell...it's not their jurisdiction or call. It may feel wrong to us, but it's not against the Geneva Convention.

http://www.defenselink.mil/releases/2004/nr20040707-0992.html

After a year in prison, the DoD finally agreed to let the prisoners contest their "enemy combatant" status to a military tribunal. They (DoD) still continued to hedge on the detainees' right to independent counsel as guaranteed by the SC in Rasul vs. Bush (see link below)

http://www.cdi.org/news/law/gtmo-sct-decision.cfm

I'm still looking, but haven't yet found anything in the Geneva Convention that seems to make that a right or requirement. It's odd, but I don't see any provision about how one assures that those held as POWs fit the necessary criteria, and how someone can appeal their detainment. It all sounds very much like a guilty until proven innocent issue in that regard.

I mentioned Article 4.6 before, but I'll repeat it again, because it's the one that seems to be most troubling in this regard:

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.

Who wouldn't take up arms against an invader? Heck, under this provision, the kids on the street throwing rocks could probably be detained as POWs. My guess is that if they resisted in any way, which they probably did (why wouldn't they?), then they probably landed into this category of POW.

Just to be clear, I don't support just grabbing up civilians off the street, or detaining them as POWs because they picked up a rifle or shotgun or kitchen knife to defend their home as soldiers barged through their front doors, but if it did happen that way, I'm not sure the Geneva Convention does a thing to help them or prohibit it. It also doesn't seem to provide much authority for any outside party, i.e., someone other than the US government in the case of Gitmo, to step in and intervene. It seems to be all after-the-fact provisions. This is the first time I'm really reading through it fairly thoroughly, and I was expecting more protections than it really offers.

 

[Ivan Seeking]

I was under the impression that the detainees at Gitmo are classified as enemy combatants precisely so that they can be treated as POWs and therefore not afforded the legal rights that a criminal detainee has, such as habeus corpus and the right to legal counsel.

They were classified so as to avoid any legal restraints whatsoever. As detainees, they are not protected by the Geneva Conventions either.

It was simply more new-speak.

 

[Moonbear]

They were classified so as to avoid any legal restraints whatsoever. As detainees, they are not protected by the Geneva Conventions either.

It was simply more new-speak.

If they fit any of the definitions of a POW, then you can call it anything you want, they're still POWs. If they do not clearly fit any of those definitions, then they aren't POWs, but it seems they still would be covered under the Article 3 provisions, even if not everything else.

The Geneva Convention seems awfully weak and seems to offer a lot of ways to circumvent it without much in the way of repercussions. It almost sounds like the worst that would happen is they could make you release all your prisoners. Did I miss something? Surely if it came to forcing a nation to release prisoners for violating the Convention, there should be some sanction or penalty involved. Is it truly possible to just scapegoat a few POW camp guards and everyone else is off the hook?

 

[BobG]

If they are POWs, then no provision of the Geneva Convention seems to require they fall under the jurisdiction of civil courts, only military courts. Their detainment isn't subject to appeal and doesn't require a trial for the duration of the conflict, as far as I can tell. Only if they are being tried for a crime for which additional punishment would be meted out, not just being held as a POW, would they be entitled to a trial. But, if they are just POWs who have not committed any other crime, then they are just held. So, it doesn't matter what the Supreme Court ruled, as far as I can tell...it's not their jurisdiction or call. It may feel wrong to us, but it's not against the Geneva Convention.

I mentioned Article 4.6 before, but I'll repeat it again, because it's the one that seems to be most troubling in this regard:

Who wouldn't take up arms against an invader? Heck, under this provision, the kids on the street throwing rocks could probably be detained as POWs. My guess is that if they resisted in any way, which they probably did (why wouldn't they?), then they probably landed into this category of POW.

The first thing that has to be determined is which war the prisoners are a part of. If they were in Afghanistan fighting the invasion, then that war is over ... technically? There wasn't a formal declaration of war, making it hard to set a boundary for the end of the war - considering remnants of the Taliban have regrouped and mounted a new fight, maybe you could say that war is still in progress. If they were among the al-Qaeda prisoners captured, then that war is still on-going.

Iraq gets even more problematic. If they were captured during the intial invasion, that war ended when Bush declared 'Mission Accomplished', didn't it? If they were captured during the following insurgency, they could be held until the Iraqi government has established firm control. If they are al-Qaeda terrorists fighting in Iraq, then they could presumably held be held for decades until the 'long war' against terrorism has ended?

All in all, when undeclared wars are fought against ideological groups instead of declared wars against national armies, the rules seem to get a little fuzzy.

The last bit you mentioned about civilians taking up arms against an invading army only applies to them after they've mounted an armed defense. It gives them the same protection and requirements as regular military. It isn't justification to round up anyone who could conceivably mount an armed defense.

 

[Ivan Seeking]

If they fit any of the definitions of a POW, then you can call it anything you want, they're still POWs. If they do not clearly fit any of those definitions, then they aren't POWs, but it seems they still would be covered under the Article 3 provisions, even if not everything else.

Not according to Bush, Rummy, and Gonzales.

To me this alone is grounds to at least throw them all out on their butts, and more to my liking, prosecuted on war crimes charges and for crimes against the people of the US.