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February
4, 2002
John Chuckman
American
Politics of Grief
February
3, 2002
Zoltan
Grossman
War
and New Military Bases
February
2, 2002
Francis
Schor
Carlucci's
Strange Career
February
1, 2002
Dr. Susan
Block
The
Great Ashcroft Cover Up
Jeremy
Voas
Why
We're Suing Ashcroft
David
Vest
10
Things I Know About Him
January
31, 2002
Rahul
Mahajan
The
State of the Union:
A New Cold War
Dave Marsh
Miles
Copeland, War
and the Future of Music
John Pilger
The
Colder War
Alexander
Cockburn
American
Journal:
Killer Dog, Weird Couple
Dr. Susan
Block
Blowback
and Daniel Pearl
January
30, 2002
Jeffrey
St. Clair
Linda
Lay, Hill and Knowlton and the Tears of a Clown
Jack McCarthy
Free
Noelle Bush!
Michael
Ratner
Memo
to Bush: Adhere to
the Geneva Convention
Jay Moore
Proud
to be an American?
Susan
Block
The
Great Pretzel Swallower
and Guantanamo Porn
January
29, 2002
Gary Leupp
Why
This War Was, and Remains, Utterly Wrong
Alexander
Cockburn
The
Birds of Kandahar
Patrick
Cockburn
Afghan
Opium Trade
Back in Business
January
28, 2002
Larry
Chin
Brosnahan
for the Defense
Mokhiber/Weissman
Tyranny
of the Bottom Line
George
E. Curry
Civil
Rights Nominee Called Affirmative Action "Racist"
Sen. Russ
Feingold
Campaign
Finance Reform?
Think Enron
John Chuckman
Liberal?
Media?
January
27, 2002
Mokhiber
and Weissman
Enron's
Drip, Drip, Drip
Tom Turnipseed
MLK
Jr.'s Dream Perverted
January
26, 2002
Norman
Madarsz
Adieu,
Bourdieu
January
25, 2002
National
Lawyers Guild
Know
Your Rights
Alexander
Cockburn
You
Call This Terrorism?
CounterPunch
Wire
Cal
Energy Crisis Hoax:
It Wasn't A Shortage,
It Was a Shakedown
Tariq
Ali
Kashmir,
Klinghoffer,
the Kurds and Chomsky
Nadine
Strossen
Protecting
MLK Jr.'s Legacy:
Justice and Liberty After 9/11
January
24, 2002
Robert
Fisk
Turkey
Targets Chomsky
Dean Baker
Lying
on Top:
Ken Lay One of Many
David
Vest
Idiot
Wind
January
23, 2002
Terry
Waite
Guantanamo
Prisoners:
Justice or Revenge?
Molly
Secours
The
Case of Abu-Ali:
Racism and the Death Penalty
Robert
Jensen
Speak
Out, Get Slimed
A Photographic Journal of Life
in an Afghan Refugee Camp
By Judith Mann
Resources:
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About 9/11
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bin Laden and Bush
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The New Crusade:
America's War on Terrorism
By Rahul Mahajan
The Memphis Blues Again:
Six Decades of Memphis Music Photographs
Photos by Ernest Withers
Text by Daniel Wolff
The New Intifada:
Resisting Israel's Apartheid
Edited by Roane Carey
A Pocket Guide to
Environmental Bad Guys
by James Ridgeway
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The
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by Douglas Valentine
Al Gore:
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February 4,
2002
Dear Condoleezza...
U.S. Officials Misstate Geneva
Convention Requirements
By Kenneth Roth
The Honorable Condoleezza Rice
National Security Advisor
The White House
Washington, DC
Dear Ms. Rice,
We write concerning the legal status
of the Guantanamo detainees. Our views reflect Human Rights
Watch's experience of over twenty years in applying the Geneva
Conventions of 1949 to armed conflicts around the world. We
write to address several arguments advanced for not applying
Article 5 of the Third Geneva Convention of 1949, which, as
you know, requires the establishment of a "competent tribunal"
to determine individually whether each detainee is entitled
to prisoner-of-war status should any doubt arise regarding
their status. Below we set forth each of the arguments offered
for ignoring Article 5 as well as Human Rights Watch's response.
Argument: The Geneva Conventions do not apply to a war
against terrorism.
HRW Response: The U.S. government could have pursued terrorist
suspects by traditional law enforcement means, in which case
the Geneva Conventions indeed would not apply. But since the
U.S. government engaged in armed conflict in Afghanistan - by
bombing and undertaking other military operations - the Geneva
Conventions clearly do apply to that conflict. By their terms,
the Geneva Conventions apply to "all cases of declared
war or of any other armed conflict which may arise between two
or more of the High Contracting Parties." Both the United
States and Afghanistan are High Contracting Parties of the Geneva
Conventions.
Argument: A competent tribunal is unnecessary because
there is no "doubt" that the detainees fail to meet
the requirements of Article 4(A)(2) for POW status.
HRW response: Article 5 requires the establishment of a competent
tribunal only "[s]hould any doubt arise" as to whether
a detainee meets the requirements for POW status contained in
Article 4. The argument has been made that the detainees clearly
do not meet one or more of the four requirements for POW status
contained in Article 4(A)(2) - that they have a responsible
command, carry their arms openly, wear uniforms with distinct
insignia, or conduct their operations in accordance with the
laws and customs of war. However, under the terms of Article
4(A)(2), these four requirements apply only to militia operating
independently of a government's regular armed forces - for example,
to those members of al-Qaeda who were operating independently
of the Taliban's armed forces. But under Article 4(A)(1) these
four requirements do not apply to "members of the armed
forces of a Party to the conflict as well as members of militia
... forming part of such armed forces." That is, this four-part
test would not apply to members of the Taliban's armed forces,
since the Taliban, as the de facto government of Afghanistan,
was a Party to the Geneva Convention. The four-part test would
also not apply to militia that were integrated into the Taliban's
armed forces, such as, perhaps, the Taliban's "55th Brigade,"
which we understand to have been composed of foreign troops
fighting as part of the Taliban.
Administration officials have repeatedly
described the Guantanamo detainees as including both Taliban
and al-Qaeda members. A competent tribunal is thus needed to
determine whether the detainees are members of the Taliban's
armed forces (or an integrated militia), in which case they
would be entitled to POW status automatically, or members only
of al-Qaeda, in which case they probably would not be entitled
to POW status because of their likely failure to meet the above-described
four-part test. Until a tribunal makes that determination, Article
5 requires all detainees to be treated as POWs.
Argument: Even members of the Taliban's armed forces should
not be entitled to POW status because the Taliban was not recognized
as the legitimate government of Afghanistan.
HRW response: As Article 4(A)(3) of the Third Geneva Convention
makes clear, recognition of a government is irrelevant to the
determination of POW status. It accords POW status without qualification
to "[m]embers of regular armed forces who profess allegiance
to a government or an authority not recognized by the detaining
power." That is, the four-part test of Article 4(A)(2)
applies only to militia operating independently of a government's
armed forces, not to members of a recognized (Article 4(A)(1))
or unrecognized (Article 4(A)(3)) government's armed forces.
Thus, whether a government is recognized or not, members of
its armed forces are entitled to POW status without the need
to meet the four-part test.
This reading of the plain language of
Article 4 is consistent with sound policy and past U.S. practice.
As a matter of policy, it would undermine the important protections
of the Third Geneva Convention if the detaining power could
deny POW status by simply withdrawing or withholding recognition
of the adversary government. Such a loophole would swallow the
detailed guarantees of the Third Geneva Conventions - guarantees
on which U.S. and allied troops rely if captured in combat.
This reading is also consistent with past U.S. practice. During
the Korean War, the United States treated captured Communist
Chinese troops as POWs even though at the time the United States
(and the United Nations) recognized Taipei rather than Beijing
as the legitimate government of China.
Argument: Treating the detainees as POWs would force the
United States to repatriate them at the end of the conflict
rather than prosecuting them for their alleged involvement
in terrorist crimes against Americans.
HRW response: POW status provides protection only for the
act of taking up arms against opposing military forces. If
that is all a POW has done, then repatriation at the end of
the conflict would indeed be required. But as Article 82 explains,
POW status does not protect detainees from criminal offenses
that are applicable to the detaining powers' soldiers as well.
That is, if appropriate evidence can be collected, the United
States would be perfectly entitled to charge the Guantanamo
detainees with war crimes, crimes against humanity, or other
violations of U.S. criminal law - more than enough to address
any act of terrorism against Americans - whether or not a competent
tribunal finds some of the detainees to be POWs. As Article
115 of the Third Geneva Convention explains, POWs detained
in connection with criminal prosecutions are entitled to be
repatriated only "if the Detaining Power [that is, the
United States] consents."
Argument: Treating the detainees as POWs would preclude
the interrogation of people alleged to have information about
possible future terrorist acts.
HRW response: This is perhaps the most misunderstood aspect
of the Third Geneva Convention. Article 17 provides that POWs
are obliged to give only their name, rank, serial number, and
date of birth. Failure to provide this information subjects
POWs to "restriction" of their privileges. However,
nothing in the Third Geneva Convention precludes interrogation
on other matters; the Convention only relieves POWs of the duty
to respond. Whether or not POW status is granted, interrogators
still face the difficult problem of encouraging hostile detainees
to provide information, with only limited tools available for
the task. Article 17 states that torture and other forms of
coercion cannot be used for this purpose in the case of POWs.
But the same is true for all detainees, whether held in time
of peace or war. (See, e.g., Article 2 of the Convention Against
Torture and Other Cruel, Inhuman, or Degrading Treatment or
Punishment, which the U.S. has ratified: "No exceptional
circumstance whatsoever, whether a state of war or a threat
of war, internal political instability or any other public emergency,
may be invoked as a justification of torture." See also
Articles 4 and 5, making violation of this rule a criminal offense
of universal jurisdiction.)
Article 17 of the Third Geneva Convention
provides that POWs shall not be "exposed to any unpleasant
or disadvantageous treatment of any kind" for their refusal
to provide information beyond their name, rank, serial number,
and date of birth. That would preclude, for example, threats
of adverse treatment for failing to cooperate with interrogators,
but it would not preclude classic plea bargaining - that is,
the offer of leniency in return for cooperation - or other incentives.
Plea bargaining and related incentives have been used repeatedly
with success to induce cooperation from members of such other
violent criminal enterprises such as the mafia or drug traffickers.
These would remain powerful tools for dealing with the Guantanamo
detainees even if a competent tribunal finds some of them to
be POWs.
Argument: The detainees are highly dangerous and thus
should not be entitled to the more comfortable conditions of
detention required for POWs.
HRW response: In light of the two prisoner uprisings in Afghanistan,
we do not doubt that at least some of the Guantanamo detainees
might well be highly dangerous. Nothing in the Geneva Conventions
precludes appropriate security precautions. But if some of the
detainees are otherwise entitled to POW status, the Conventions
do not allow them to be deprived of this status because of their
feared danger. Introducing unrecognized exceptions to POW status,
particularly when done by the world's leading military power,
would undermine the Geneva Conventions as a whole. That would
hardly be in the interest of the United States, since it is
all too easy to imagine how that precedent will come back to
haunt U.S. or allied forces. Enemy forces who might detain U.S.
or allied troops would undoubtedly follow the U.S. lead and
devise equally creative reasons for denying POW protections.
In conclusion, we hope the U.S. government
will agree to establish the "competent tribunal" required
by Article 5 of the Third Geneva Convention for the purpose
of determining case by case whether each detainee in Guantanamo
is entitled to prisoner-of-war status. That decision would uphold
international law, further U.S. national interests, and not
impede legitimate efforts to stop terrorism.
Respectfully,
Kenneth Roth
Executive Director
Human Rights Watch
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