September 30, 2005

Department of Delicious Ironies

From Hellerstein's opinion:

The government also opposes production because, it argues, doing so would conflict with the United States’ obligations under the Geneva Conventions. The Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 6 U.S.T. 3316, 74 U.N.T.S. 135 (the “Third Geneva Convention”) provides that a detaining power must protect a prisoner of war “particularly against acts of violence or intimidation and against insults and public curiosity.” Art. 13. The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the “Fourth Geneva Convention”) provides that civilians under detention are entitled to “respect for their persons, their honor...shall at all times be treated humanely, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.” Art. 27. Defendants present evidence that the United States historically has interpreted these two conventions to forbid the taking and publishing of photographs of detainees, see Decl. of Edward R. Cummings, Ass’t Legal Adviser for Arms Control and Verification, Dep’t of State, dated Mar. 24, 2005, ¶¶ 12-17 [hereinafter Cummings Decl.], and argue that publication of the photographs in this case would conflict with the United States’ treaty obligations thereunder. See id. ¶ 19; Decl. of Geoffrey S. Corn, Special Ass’t to Judge Advocate Gen. for Law of War Matters, Dep’t of Army, dated Mar. 25, 2005, ¶¶10-11 [hereinafter Corn Decl.]. The government’s treaty interpretations are entitled to respect. See Kolovrat v. Oregon, 366 U.S. 187, 194 (1961) (“While courts interpret treaties for themselves, the meaning given to them by the departments of government particularly charged with their negotiation and enforcement is given great weight.”). The government argues that “[e]ven if the identities of the subjects of the photographs are never established,” those subjects could suffer humiliation and indignity against which the Geneva Conventions were intended to protect. Corn Decl. ¶ 11. It also states, without supporting documentation, that the ICRC has taken the position that the Third Geneva Convention forbids publishing images that “show prisoners of war in degrading or humiliating positions or allow the identification of individual POWs.” Cummings Decl. ¶ 17. The redactions and withholding that I ordered should protect civilians and detainees against “insults and public curiosity” and preserve their “honor.” Production of these images coheres with the central purpose of FOIA, to “promote honest and open government and to assure the existence of an informed citizenry [in order] to hold the governors accountable to the governed,” Nat’l Council of La Raza v. DOJ, 411 F.3d 350, 355 (2d Cir. 2005). Accordingly, I hold that the government may not withhold the Darby photographs, redacted to eliminate all identifying characteristics of the persons shown in the photographs, under Exemptions 6 and 7(C).

Hey, sometimes the GVA Conventions matter, and sometimes they don't!

The administration has always agreed that Geneva applied to Iraqi prisoners, right? Its the Taliban and Al Queda where they have tried to limit application. So I don't see the irony except in a broad sense about arguing Geneva obligations to Iraqis might prohibit publishing pictures. Nor do I see how that undermines a claim that Geneva shouldn't apply to Al-Queda.

Posted by: rd at September 30, 2005 05:33 AM | Permalink to this comment

funny you leave that comment here R.D. why not the post immediately below, where Captain Fishback explains he felt compelled to go public on Camp Mercury after hearing Rummy say Iraq was GVA compliant? Fishback knew this was untrue, so a loyal Army Captain, West Point educated and of unimpeachable credentials, came out into the cold to the doubtless disgust of 'honor of the unit' damage control types. But GVA wasn't, in practice, respected in Iraq, much too often, not least because of the grotesque insouciance Rummy communicated from the top down on GVA. So forgive me for saying...if you can't see the irony, it's b/c you don't want to see the irony...

as for GVA and al Qaeda, that's a topic for another night...

Posted by: greg at September 30, 2005 05:39 AM | Permalink to this comment

All four 1949 Conventions (including Convention III, Relative to the Treatment of Prisoners of War) contain the following common language in Part 1, Article 2:

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

Regardless of Administratrion spin: neither the guerillas opposed to us now, nor Iraq as it was constituted under Saddam Hussein, are signatories to these Conventions.

The four 1949 Conventions, plus the two additional 1977 Protocols, exempt a signatory from following the Conventions if the Power that opposes it does not obey the laws of war as outlined in the Conventions.

That's the letter of the law, if not its spirit. Unless one wants to argue that the Power that opposes the United States is acting in accord with the Geneva Conventions, or that relations between the United States and other signatory Powers are of sufficient import to demand that the US follows the Conventions even in the face of grave breaches of the Conventions by its enemies, there's not much of a legal leg to stand on.

Posted by: Ian Wood at October 1, 2005 12:25 AM | Permalink to this comment

Note to comment by IW - its been the settled policy of the US for decades that common article 3 of the conventions has become customary international law - and perhaps even jus cogens - thus binding on signatories and non-signatories alike. Though the recent Hamdan decision holds otherwise, it is truly revolutionary.
Degrading and inhumane treatment falls under common article 3 (though perhaps not extending to pictures?).
Thus there is quite likely indeed an ultimate 'legal leg to stand on' that holds the US in conflict with customary international law as expressed in common article 3. The Administration's claims otherwise upset the very fabric of international humanitarian law, as accepted by the US and enshrined in case law and army manuals for decades.

Posted by: KElly at October 1, 2005 04:41 AM | Permalink to this comment