July 26, 2007


War Crimes and the White House: The Dishonor in a Tortured New 'Interpretation' of the Geneva Conventions (P.X. Kelley and Robert F. Turner, July 26, 2007, Washington Post)

The Supreme Court held in Hamdan v. Rumsfeld last summer that all detainees captured in the war on terrorism are protected by Common Article 3 of the 1949 Geneva Conventions, which prescribes minimum standards of treatment for all persons who are no longer taking an active part in an armed conflict not of an international character. It provides that "in all circumstances" detainees are to be "treated humanely."

This is not just about avoiding "torture." The article expressly prohibits "at any time and in any place whatsoever" any acts of "violence to life and person" or "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Last Friday, the White House issued an executive order attempting to "interpret" Common Article 3 with respect to a controversial CIA interrogation program. [...]

It is firmly established in international law that treaties are to be interpreted in "good faith" in accordance with the ordinary meaning of their words and in light of their purpose. It is clear to us that the language in the executive order cannot even arguably be reconciled with America's clear duty under Common Article 3 to treat all detainees humanely and to avoid any acts of violence against their person.

By which standard, unfortunately, Hamdan is obvious nonsense, since by no ordinary meaning of the words in the treaty does it cover the detainees of the WoT.

Posted by Orrin Judd at July 26, 2007 3:31 PM

Sorry, Herr Doktor Kriegsgerichtsraeter. i.e., Y.O.S., has to go along with Kelly and Turner of this one. They are correct in their essential conclusion, even if their argument for it is somewhat confused.

Captured terrorists, which include almost all fighters of the spiritual jailhouse, are suspected, accused or convicted war criminals, definitely not prisoners of war. Kelly and Turner are wrong about that much. This is because of the jailhous practices of illegal fighting, their violations of the Law of War. These violations are well known: fighting out of uniform, impersonating or even hiding among protected persons and places, employing illegal indiscriminate weapons, abusing prisoners, murdering civilians: the list goes on and on.

The writers are correct, however, in holding that detained war criminals are entitled to humane treatment, up until their execution. Just as it woud have been illegal to torture or abuse Nazi or Japanese war criminals prior to their execution, so it is illegal to mistreat jailhuse war criminals.

Must we spell this out one more time? Such extraordinary interrogation as may be necessary cannot take place in the light of day. There can be no "torture warrants," as Alan Dershowitz seems to call for in the "ticking bomb" hypothetical.

Now it is theoretically possible for the inteligence organs of the United States to walk some fine line between harsh interrogstion of detained war criminals, and what would constitute abusive treatment. That is what the administration is saying that is is trying to set up. In practice it is laughable, for the enemies, foreign and domestic will always accuse us of having gone to far. Since we are to have the name, let the game be played as is should be played, in secret.

Posted by: Lou Gots at July 26, 2007 4:45 PM

War criminals isn't a meaningful term. It's something the victor defines after the war in order to justify executions.

Once you reached the point where you conceded they aren't covered by the Conventions the rest was just winging it, not legal analysis.

Of course we don't need warrants. There's no one to enforce any law against us.

Posted by: oj at July 26, 2007 6:18 PM

OJ made an excellent point a little while back that has stuck with me and I think is spot on: the crucial distinction is how the information is to be used.

If the harsh treatment is for intelligence purposes, all bets are off.

If it is for a criminal prosecution, no coercion.

And of course, no rough stuff for the sake of rough stuff itself...

Posted by: Benny at July 26, 2007 6:47 PM

Article 2: The present Convention shall 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.

AlQ is a High Contracting Party?

Posted by: Gideon at July 26, 2007 7:19 PM

Article 2 (cont): 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.

Does anyone seriously think that this applies to AlQ?

Posted by: Gideon at July 26, 2007 7:39 PM

How many Democratic politicians and media types have actually read the "treaty"? Ha John McCain ever read it? John Warner?

I have asked a few reporters (via e-mail) why they thought the provisions of the Conventions apply to Al Qaeda, the Taliban, or foreign infiltrators captured anywhere in Iraq, Somalia, England, Italy, or even here at home. Only one bothered to respond, and his objection was that George Bush has damaged US standing in the world. He did not address the question. He could not.

Posted by: jim hamlen at July 27, 2007 9:35 AM