May 13, 2004

Talking Geneva

That was then.

"We have indicated that we do plan to, for the most part, treat them in a manner that is reasonably consistent with the Geneva conventions, to the extent they are appropriate.

--Donald Rumsfeld, back in '02.

This is now.

Defense Secretary Donald Rumsfeld, making a surprise visit to Iraq aimed at containing the prisoner abuse scandal, said Thursday that U.S. government lawyers were advising the Defense Department not to publicly release any more photographs of Iraqi prisoners being mistreated by American soldiers.

As far as Im concerned, Id be happy to release them all to the public and to get it behind us, Rumsfeld told reporters traveling with him from Washington. But at the present time I dont know anyone in the legal shop in any element of the government that is recommending that.

Government lawyers argue that releasing such materials would violate a Geneva Convention stricture against presenting images of prisoners that could be construed as degrading, Rumsfeld said en route to the Iraqi capital on a trip that was not announced in advance due to security concerns.

--Donald Rumsfeld, today.

Fussy Genevois legalisms are suddenly appearing of more import, aren't they?

Hey, why not comply, er, "for the most part," and simply blur the faces of the detainees and/or U.S. personnel in the pics/videos so as to not degrade them and/or violate their privacy rights?

And then release them forthwith?

Just to get it "behind us"?

Read this spot on WaPo masthead too.

Key grafs:

"The lawlessness began in January 2002 when Mr. Rumsfeld publicly declared that hundreds of people detained by U.S. and allied forces in Afghanistan "do not have any rights" under the Geneva Conventions. That was not the case: At a minimum, all those arrested in the war zone were entitled under the conventions to a formal hearing to determine whether they were prisoners of war or unlawful combatants. No such hearings were held, but then Mr. Rumsfeld made clear that U.S. observance of the convention was now optional. Prisoners, he said, would be treated "for the most part" in "a manner that is reasonably consistent" with the conventions -- which, the secretary breezily suggested, was outdated.

In one important respect, Mr. Rumsfeld was correct: Not only could captured al Qaeda members be legitimately deprived of Geneva Convention guarantees (once the required hearing was held) but such treatment was in many cases necessary to obtain vital intelligence and prevent terrorists from communicating with confederates abroad. But if the United States was to resort to that exceptional practice, Mr. Rumsfeld should have established procedures to ensure that it did so without violating international conventions against torture and that only suspects who truly needed such extraordinary handling were treated that way. Outside controls or independent reviews could have provided such safeguards. Instead, Mr. Rumsfeld allowed detainees to be indiscriminately designated as beyond the law -- and made humane treatment dependent on the goodwill of U.S. personnel."

That's probably about right, I'm afraid.

Meanwhile, some Baker Hostetler partners, in a pretty sober and well-reasoned piece, have poo-poohed what they call the "bad atmosphere" argument:

"The second argument is also meritless, although far more insidious. It suggests that the administration's refusal to grant "unprivileged" or "unlawful" combatants (such as al Qaeda, the Taliban, and the insurgent forces in Iraq) the rights of honorable prisoners of war under the Geneva Conventions, has "dehumanized" them and created an "atmosphere" permitting (or even encouraging) abuses like those at the Abu Ghraib prison. The president's political opponents have embraced this "bad atmosphere" argument, and are utilizing it as something akin to a pundit's philosopher's stone. Clear and acknowledged abuses have been transformed into evidence of action that is supposedly characteristic of the entire American detention system, equally applicable to the treatment of detainees in Iraq, Afghanistan, or Guantanamo Bay....

In fact, the administration's policy is fully supported by the Geneva Conventions, which distinguish between forces that are, and are not, entitled to POW status. It is also very well grounded in the customary laws of war, which have never accorded captured combatants the rights of criminal defendants simply because they are detained. Combatants without a transparent command structure, who do not wear uniforms, carry their arms openly, or obey the laws of war in their operations, are not entitled to POW treatment whether or not their actions are sanctioned by a state. Such individuals have been traditionally disadvantaged by the laws of war, including the Geneva Conventions, because they do not distinguish themselves from the civilian population and often purposefully target civilians for attack." [my emphases throughout]

I'm not surprised the two Hostetler lawyers appear to rely more on "customary" law than attempting to showcase the Administration's de jure compliance with the Geneva Conventions.

Why? Because arguing that Rummy's Pentagon was in full compliance with Geneva Conventions is, at best, somewhat disingenuous and, likely on the merits, false.

As the WaPo masthead mentioned above stated:

"At a minimum, all those arrested in the war zone were entitled under the conventions to a formal hearing to determine whether they were prisoners of war or unlawful combatants."

This formal screening process doesn't appear to have routinely been pursued in Afghanistan and/or Iraq (readers are invited to send any information/thoughts on this topic--especially if they have contrary information).

And it appears that designating captured enemy as unlawful combatants--rather than bona fide POWS, without a hearing--would violate Geneva Convention norms. So the authors of the NRO piece are quite likely wrong to say the policy the U.S. has pursued is "fully supported" by the Geneva Conventions.

They also write:

"Nor can the abuses be attributed to a lack of training in humanitarian law which seems to be the excuse chosen by the accused and their lawyers. General Taguba's report identified a lack of training in Geneva law was one problem with the units serving in the Abu Ghraib prison, and such training certainly could not have hurt matters. However, had every member of these units been required to memorize the Geneva Conventions, it would have made little difference. Those instruments detail a number of technical rights to which prisoners of war are entitled, but their overall requirement is that captives be treated humanely. For all practical purposes, this is the same commonsense standard established by President Bush from the very beginning of the war on terror. If that standard wasn't clear enough to rule out the use of Iraqi prisoners as so many props in a series of pornographic photographs, home movies, and worse, then there is nothing in the Geneva Conventions that would have taught the Abu Ghraib guards otherwise. The problem here was with individuals, not the system."

This is a variation on this Rummy statement.

"The test is what is decided and what is issued, and then is it adhered to?" Rumsfeld said. "And what we know is that the lawyers cleared what was issued down through the system. What we can't know at any given moment of every day is whether each person is executing them consistent with what was approved by the lawyers down through the system."

Fair enough, you'd almost be tempted to say.

But if you have got a bunch of 19 year old kids from places like West Virginia and Idaho, who haven't had the chance to digest the finer distinctions between al-Qaeda enemy combatants and Fallujahan Baathist 'dead-enders' (lucky POWs!)--all the legal guidance does get a little muddied, doesn't it?

Especially when the need to adhere to Geneva Conventions (for the lucky folks) hasn't been hammered in--whether by routine briefings or posting the relevant regulations at the jail you serve at as a guard (the Taguba report found that guards at Abu Ghraib were not briefed on the Geneva Conventions and its provisions were not posted at the prison).

Add to all this top-down comments from your leadership about adherence to Geneva Conventions not needing, shall we say, to always be running at 110%--you start getting damn close to blaming Abu Ghraib on systemic failures rather than solely the acts of a few 'bad apples'.

If more of the balance of evidence keeps pointing towards systemic factors--the pressure on Rumsfeld to step down will (rightly) ratchet up.

N.B.: The Hosteter lawyers describe the Geneva Conventions as consisting merely of "technical points" and a general obligation to 'do good.'

From the Convention:

"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..."

So let me ask--if you post the Conventions prominently in a detention facility, and remind your junior soldiers about the requirements more often, wouldn't such actions help foster an environment that might help keep young soldiers from pulling out the chemical lights and forcing detainees to masturbate on tape?

It's not a panacea against all the bad apples, of course, to post the Geneva Conventions and inform soldiers about them in detail routinely. After all, combat duty in Iraq isn't 1L at HLS.

But it just might have contributed to a better 'atmosphere' at Abu Ghraib, no?


Ironies...Zeyad of Iraqi blog "Healing Iraq" reports that Abu Ghraib used to be known as 'Abu Geneve' (back duing the Saddam years).

Note: Don't miss his thoughts on the torture scandal either.

Posted by Gregory at May 13, 2004 01:30 PM
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