____________
Notes:
1. For purposes of this Report, the term “War in Afghanistan” refers to the period of international armed conflict in Afghanistan – from October 2001 to June 2002, when the Taliban was the governing force in Afghanistan, and the phrase “ongoing conflict in Afghanistan” refers to the period after June 18, 2002 when Hamid Karzai was elected as Afghanistan’s transitional head of state, and the U.S. and other international parties were operating in Afghanistan at the invitation of this new Afghanistan government. This distinction becomes important in discussing the protections afforded to detainees by the Geneva Conventions. See Section II of this Report.
2. An assessment of the parameters and legal implications of the “War on Terror,” a term coined by the Administration, is beyond the scope of this Report.
3. Carlotta Gall, U.S. Military Investigating Death of Afghan In Custody, N.Y. TIMES, Mar. 4, 2003, at A14. According to the New York Times, another Afghan man died of a pulmonary embolism or a blood clot in the lung while in U.S. custody at Bagram on December 3, 2002. Both men died within days of arriving at Bagram. Human Rights Watch has criticized the U.S. government for failing, one year after the first two deaths at Bagram – which were classified as homicides, to release the results of its investigation. See Press Releases & Documents, Voice of America, Rights Group Criticizes U.S. Military for Treatment of Afghan Detainees (Dec. 1, 2003) (printed at 2003 WL 66801402).
4. See, e.g., Dana Priest & Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at A01; Eric Lichtblau & Adam Liptak, Questioning to Be Legal, Humane and Aggressive, The White House Says Now, N.Y. TIMES, Mar. 4, 2003, at A13; Jess Bravin & Gary Fields, How do U.S. Interrogators Make A Captured Terrorist Talk, WALL ST. J., Mar 4, 2003, at B1; Tania Branigan, Ex-Prisoners Allege Rights Abuses By U.S. Military, WASH. POST, Aug. 19, 2003, at A02. While standards and conditions of confinement – addressed by many of the international legal instruments examined in this Report – would be included in any exhaustive inquiry into the treatment of detainees at U.S. detention centers, in this Report we are focusing more narrowly on the legality of interrogation methods.
5. Captives have reportedly been “rendered” by the U.S. to Jordan, Egypt, Morocco, Saudi Arabia and Syria, in secret and without resort to legal process. See, e.g., Peter Finn, Al Qaeda Recruiter Reportedly Tortured; Ex-Inmate in Syria Cites Others’ Accounts, WASH. POST, Jan. 31, 2003, at A14; Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics used on Terrorism Suspects Held in Secret Overseas Facilities, WASH. POST, Dec. 26, 2002, at A01; Rajiv Chandrasekaran & Peter Finn, U.S. Behind Secret Transfer of Terror Suspects, WASH. POST, Mar. 11, 2002, at A01.
6. See, e.g., Letter from Kenneth Roth, Executive Director, Human Rights Watch to President George W. Bush (Dec. 26, 2002) (available at http://www.hrw.org/press/2002/12/us1227.htm); Letter from Human Rights Groups to President George W. Bush (Jan. 31, 2003); Letter from Ernest Duff, The National Consortium of Torture Treatment Programs to President George W. Bush (Feb. 5, 2003); Letter from Sen. Patrick Leahy to Condoleezza Rice (June 2, 2002); Letter from ABCNY Committees on Military Affairs and Justice and International Human Rights to Scott W. Muller, General Counsel, CIA (June 4, 2003); Letter from Sen. Patrick J. Leahy to William J. Haynes, II, General Counsel, DOD (Sept. 9, 2003).
7. See Letter from William J. Haynes II, General Counsel, DOD, to Kenneth Roth, Executive Director, Human Rights Watch (Apr. 2, 2003). The Administration’s use of the terms “enemy combatants” and “unlawful combatants” to detain persons indefinitely without administrative or judicial proceedings is novel.
8. See Letter from Scott W. Muller, General Counsel, CIA to Miles P. Fischer and Scott Horton, chair of the Committee on Military Affairs and Justice and then-chair of the Committee on International Human Rights, respectively (June 23, 2003). A CIA senior official has informally indicated that the agency complies with applicable law in reliance on the advice of its legal staff. However, we have been unable to confirm what legal advice has been given by CIA counsel or what means have been used to assure compliance with that advice.
9. See Letter from William J. Haynes II, General Counsel, DOD, to Sen. Patrick J. Leahy (June 25, 2003). At the November 20-21, 2003, Annual Review of the Field of National Security Law conference of the American Bar Association’s Standing Committee on National Security Law, Muller stated publicly in response to a question by a member of the Committee on Military Affairs and Justice that Haynes’ June 25, 2003 letter to Sen. Leahy articulates the policy position of “the entire U.S. government.” Copies of the correspondence cited in fn. 6-9 are attached to this Report as Appendix A.
10. Id.
11. Id.
12. Id.
13. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature Feb. 4, 1985, G.A. Res. 46, U.N. GAOR 39th Sess., Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984), reprinted in 23 I.L.M. 1027 (1984) (“CAT”).
14. 136 Cong. Rec. S17486-01, 1990 WL 168442.
15. G.A. Res. 2200A (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316.
16. O.A.S. RES. XXX, OEA/Ser. L.V./II. 82 Doc. Rev. 1, at 17.
17. 213 U.N.T.S. 221.
18. See White House Fact Sheet: Status of Detainees at Guantánamo (Feb. 7, 2002) (available at http://www.whitehouse.gov/news/releases ... 07-13.html).
19. Geneva Convention (III) Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316, 1949 U.S.T. LEXIS 483 (“Geneva III”); Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T. 3516, 1949 U.S.T. LEXIS 434 (“Geneva IV”).
20. Additional Protocol I, reprinted in 16 I.L.M. 1391. While neither the United States nor Afghanistan is a signatory to Additional Protocol I, it is generally acknowledged that certain provisions are binding as a matter of customary international law. And although the terms of Common Article 3 specifically limit its scope to internal conflicts, it is considered by customary international law to have broader scope.
21. 38 I.L.M. 1471 (Sept. 6, 1999).
22. CAT, Art. 11.
23. Id., Art. 12.
24. Id., Art. 4.
25. Id., Art. 3.
26. For example, a lawsuit was recently filed by the Center for Constitutional Rights on behalf of Maher Arar, a Syrian-born Canadian citizen alleging that U.S. authorities deported him to Jordan in September 2002, where he was driven across the border and handed over to Syrian authorities. The Arar Complaint alleges that, although the U.S. Department of State’s 2003 Country Reports designated Syria as a government that practices systemic torture, U.S. officials allegedly relied on assurances from the Syrian government that Arar would not be tortured. Arar has alleged that he was tortured repeatedly in a Syrian prison for 10 months, often with cables and electrical cords. See Complaint in Maher Arar v. John Ashcroft, et al. (available at http://www.ccr-ny.org/v2/legal/Septembe ... plaint.pdf).
27. Geneva III, Art. 5.
28. We note that the Department of Defense has recently circulated for comment administrative review procedures for enemy combatants at Guantánamo Bay Naval Base. See http://www.defenselink.mil/news/ Mar2004/ d20040303ar.pdf. While welcoming such a review process, we do not consider it to meet the requirement for status determination under the Geneva Conventions.
29. Supra note 13.
30. Id. Article 4.1 states: “Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.”
31. Id. Article 3.1 states: “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”
32. See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (a statute “ought never to be construed to violate the law of nations, if any other possible construction remains”). See also United States v. P.L.O., 695 F. Supp. 1456, 1468 (S.D.N.Y. 1988) (noting “the lengths to which our courts have sometimes gone in construing domestic statutes so as to avoid conflict with international agreements...”).
33. Lawrence v. Texas, 539 U.S. 558 (2003).
34. This list is by no means comprehensive. Practices were selected for inclusion here because of their similarity to the practices allegedly used by U.S. agents with respect to detainees held in connection with the War in Afghanistan and the ongoing conflict in Afghanistan. The findings and concluding observations of the Committee Against Torture are available at http://www.unhchr.ch/tbs/doc.nsf.
35. Case of A. (name withheld) v. The Netherlands, Committee Against Torture , Comm. No. 91/1997 (1998), U.N. Doc. No. CAT/C/21/D/91/1997.
36. See Inquiry under Article 20: Committee Against Torture, Findings concerning Peru (2001), U.N. Doc. No. A/56/44, at para. 35.
37. Concluding Observations concerning Republic of Korea (1996), U.N. Doc. No. A/52/44, at para. 56.
38. Concluding Observations concerning New Zealand (1993), U.N. Doc. No. A/48/44, at para. 148.
39. See Inquiry Under Article 20: Committee Against Torture, Findings concerning Turkey (1993), U.N. Doc. No. A/48/44/Add.1, at para. 48.
40. Concluding Observations concerning Azerbaijan (2003), U.N. Doc. No. CAT/C/CR/30/1, at para. 5(b).
41. Concluding Observations concerning Germany (1993), U.N. Doc. No. A/48/44, at para. 167.
42. Id.; see also Concluding Observations concerning New Zealand (1998), U.N. Doc. No. A/53/44, at para. 175.
43. Concluding Observations concerning the United States (2000), U.N. Doc. No. A/55/44, at para. 179(e).
44. Concluding Observations concerning Australia (2000), U.N. Doc. No. A/56/44, at para. 52(b).
45. Supra note 36.
46. These techniques were found by the Committee to constitute “breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case.” Concluding Observations concerning Israel (1997), U.N. Doc. No. A/52/44, at para. 257.
47. See 136 CONG. REC. 36,198 (daily ed. Oct. 27, 1990). The instrument of ratification included the declaration that “the provisions of Articles 1 through 16 of [CAT] are not self-executing.” See United Nations Treaty Collection: Declarations and Reservations, (available at http://www.unhchr.ch/html/menu3/b/treaty12_asp.htm).
In the case of a self-executing treaty, “no domestic legislation is required to give [it] the force of law in the United States.” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984). By contrast, a non-self-executing treaty is one that “must be implemented by legislation before it gives rise to a private cause of action.” Mannington Mills, Inc. v. Congoleum Corp., 595 F.2d 1287, 1298 (3d Cir. 1979).
48. See Ratification Status for CAT, United States of America (available at http://www.unhchr.ch). The U.S. has not opted out of the inquiry procedure under Article 20. It has entered a declaration accepting the interstate complaint procedure set up by Article 21. The U.S. has not, however, accepted the competence of the Committee under Article 22 to receive and consider complaints on behalf of individuals subject to its jurisdiction who claim to be victims of a violation of CAT.
49. See 136 CONG. REC. S17486-01 (daily ed. Oct. 27, 1990).
50. See 136 CONG. REC. 36192, 36198 (daily ed. Oct. 27, 1990).
51. Under international law, reservations are invalid if they violate the “object and purpose” of the treaty. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, 1155 U.N.T.S. 331, at Art. 19(c). This Report assumes that the U.S. reservation with respect to Article 16 of CAT is valid.
52. Because the focus of this Report is on what laws apply to agents of the United States government in detention centers located outside of United States territory, this discussion does not examine state or federal penal or civil rights statutes that would also apply to interrogation occurring on American soil.
53. This had also been the position of the Ninth Circuit. See Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001) (holding that severe beatings and cigarette burns sustained over periods of days, weeks and months constitutes torture). More recently, however, the Ninth Circuit has held that neither serious persecution (e.g., threats, unjust charges, fines, illegal searches and seizures) nor verbal abuse alone amount to torture. See Gui v. INS, 280 F.3d 1217 (9th Cir. 2002); Quant v. Ashcroft, 2003 U.S. App. LEXIS 6616 (9th Cir. 2003).
54. See, e.g., Cornejo-Barreto v. Seifert, 218 F.3d 1004, 1016-17 (9th Cir. 2000) (individuals certified as extraditable by the Secretary of State who fear torture may petition for judicial review of the Secretary’s decision using CAT standards protecting against non-refoulement); Mu-Xing Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) (following Cornejo-Barreto’s holding that habeas review is available for CAT claims, but in the context of removal); Ogbudimkpa v. Ashcroft, 342 F.3d 207 (3d Cir. 2003) (same).
55. The Senate Committee on the Judiciary acknowledged the relationship of 18 U.S.C. § 2340 to CAT and the Torture Victim Protection Act in a 2002 report. See S. REP. NO. 107-44 (2002), at 10-11.
56. A restrictive interpretation of the scope of the statute is found in the U.S. Dept. of Justice, Criminal Resource Manual 20 (Oct. 1997), which provides: “Section 2340A of Title 18, United States Code, prohibits torture committed by public officials under color of law against persons within the public official’s custody or control. . . . The statute applies only to acts of torture committed outside the United States. There is Federal extraterritorial jurisdiction over such acts whenever the perpetrator is a national of the United States or the alleged offender is found within the United States, irrespective of the nationality of the victim or the alleged offender.”
57. See S. REP. NO. 102-249 (1991) (stating that the TVPA would “carry out the intent of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was ratified by the U.S. Senate on October 27, 1990”).
58. See Report of the Committee on Foreign Relations, Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, S. EXEC. REP. NO. 30, 101st Cong., 2d Sess. 25 (1990) (statement of Mr. Pell) (citing Case of X. v. Federal Republic of Germany (No. 6694/74)).
59. Leon v. Wainwright, 734 F.2d 770 n.5 (11th Cir. 1984) (kidnapping conviction confirmed based on a confession obtained following a prior coerced confession).
60. Rochin v. California, 342 U.S. 165, 172 (1952).
61. County of Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998).
62. The UCMJ, discussed below, provides that no “cruel or unusual punishment” may be adjudged by any court-martial or inflicted upon any person subject to the UCMJ (10 U.S.C.S. § 855). In general, military courts have applied the Supreme Court’s interpretation of the Eighth Amendment to claims raised under this provision. See, e.g., United States v. Avila, 53 M.J. 99, 2000 CAAF LEXIS 569 (C.A.A.F. 2000). Thus, under the UCMJ, POWs and persons who under the law of war are subject to trial for military offences by a military tribunal are not to be punished in a cruel or unusual manner, within the meaning of the Eighth Amendment.
63. City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983). See also County of Sacramento v. Lewis, 523 U.S. 833, 849-50 (1998) (citation omitted) (“We held in City of Revere v. Massachusetts Gen. Hospital that ‘the due process rights of a [pretrial detainee] are at least as great as the Eighth Amendment protections available to a convicted prisoner’”).
64. Hudson v. McMillian, 503 U.S. 1, 7 (1992) (quoting Whitley v. Albers, 475 U.S. 312, 321 (1986)).
65. Whitley v. Albers, 475 U.S. 312, 320-21 (1986) (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).
66. Compare U.S. v. Gatlin, 216 F.3d 207 (2d Cir 2000) with U.S. v. Corey, 232 F.3d 1166 (9th Cir 2000). However, the question was substantially mooted for most purposes by the passage of the Military Extraterritorial Jurisdiction Act of 2000, PUB. L. 106-503, 112 STAT. 2488, which subjects persons accompanying the armed forces abroad to U.S. civilian criminal jurisdiction, even if outside the “special maritime and territorial jurisdiction.”
67. See U.S. Dept. of State, Initial Report of the United States of America to the U.N. Committee against Torture, U.N. Doc. CAT/C/28/Add.5 (1999), at para. 178.
68. Amnesty International Report Charges U.S. is “Safe Haven” for Torturers Fleeing Justice; Eight Years On, U.S. Has Failed to Prosecute Single Individual for Torture, Amnesty International Press Release (2002) (available at http://www.amnestyusa.org/news/2002/usa04102002.html). See also William J. Aceves UNITED STATES OF AMERICA: A SAFE HAVEN FORTORTURERS (Amnesty International USA Publications 2002), at 50.
69. The UCMJ does not define the term POW. Thus it is uncertain whether POW in the UCMJ has the same meaning as in Geneva III.
70. United States v. Averette, 19 U.S.C.M.A. 363, 365-66, 41 C.M.R. 363, 365-66 (1970) (the phrase “in time of war” is limited to “a war formally declared by Congress”; even though the Vietnam conflict “qualified as a war as that word is generally used and understood[,] … such a recognition should not serve as a shortcut for a formal declaration of war, at least in the sensitive area of subjecting civilians to military jurisdiction”). Cf. United States v. Anderson, 17 U.S.C.M.A. 588, 589, 38 C.M.R. 386, 387 (1968) (United States’ involvement in Vietnam conflict “constitutes a ‘time of war’ . . . within the meaning of” Article 43(a) of the UCMJ, which provides that there is no statute of limitations over certain offenses committed “in time of war”).
71. The Court of Appeals for the Armed Forces (formerly the Court of Military Appeals) is a civilian Article I court hearing appeals from the intermediate appellate courts for each of the Army, Navy (and Marines) and Air Force, subject to possible appeal to the United States Supreme Court.
72. As previously noted, the Military Extraterritorial Jurisdiction Act of 2000, see supra note 66, eliminated any gap in jurisdiction resulting from Reid v. Covert by conferring jurisdiction on federal courts over civilians accompanying the armed forces abroad.
73. The protections of Article 55 apply to “any person subject to” the UCMJ. And as stated previously, the UCMJ would seem to apply to unlawful combatants under 10 U.S.C. § 818.
74. The Articles of War preceding the UCMJ prohibited “cruel and unusual punishment,” but the phrase was changed to “cruel or unusual punishment” in Article 55 (emphasis added). See Articles of War 41, Manual for Courts-Martial, U.S. Army, 1929 at 212, and 1949 at 284. The legislative history of Article 55 provides no rationale why the word “and” was changed to “or.” United States v. White, 54 M.J. 469, 2001 CAAF LEXIS 497 (C.A.A.F. 2001).
75. See United States v. Kinsch, 54 M.J. 641, 2000 CCA LEXIS 237 (A.C.C.A. 2000). See also Section I(C)(3)(b) of this Report for a fuller discussion of the Eighth Amendment prohibition of cruel and unusual treatment and punishment.
76. See United States v. Wappler, 2 C.M.A. 393, 9 C.M.R. 23, 1953 CMA LEXIS 897 (C.M.A. 1953); White, 54 M.J. at 473; United States v. Avila, 53 M.J. 99, 2000 CAAF LEXIS 569 (C.A.A.F. 2000).
77. Compare the federal criminal civil rights statutes, 18 U.S.C. §§ 241 and 242, and the civil statute 42 U.S.C. § 1983, all of which apply only where the victim is entitled to constitutional rights.
78. Manual for Courts-Martial, United States, (1995 edition) (the “Manual”), Paragraph 60.b (1-2). The Manual is issued by the President as a regulation under the authority granted by Congress under Article 3 of the UCMJ.
79. Manual, Paragraph 60.c (3).
80. According to the Manual, however, the doctrine of preemption “prohibits application of Article 134 to conduct covered by Articles 80 through 132. For example, larceny is covered in Article 121, and if an element of that offense is lacking—for example, intent—there can be no larceny or larceny type offense, either under Article 121 or, because of preemption, under Article 134.” Manual, Paragraph 60.c (5)(a). In effect, Article 134 may not be employed to salvage a charge where the charge could not be sustained under the substantive offense provisions of the UCMJ or Federal statute. Accordingly, conduct which violated Article 55 discussed above or any other substantive provision of the UCMJ could not be charged under Article 134. These remain alternative, not cumulative provisions.
81. For example, murder (10 U.S.C. § 918), manslaughter (10 U.S.C. § 919), dereliction of duty (10 U.S.C. § 892).
For purposes of this Report, we assume that U.S. military interrogations of detainees are conducted for intelligence gathering purposes and not with an investigatory intent to elicit incriminating responses in anticipation of criminal prosecution. However, should the focus of the interrogation shift from an intelligence to a law enforcement nature, Miranda warnings under Article 31 of the UCMJ (10 U.S.C. § 831) would be required. The failure to give such warnings is a criminal offense under Article 98 of the UCMJ (10 U.S.C. § 898).
82. See Article 93 of the UCMJ (10 U.S.C. § 893). Two Marines face charges for assault, cruelty and dereliction of duty involving the treatment and death of an Iraqi prisoner. See Associated Press Newswires, Two Marines Face Trial After Iraqi Dies, Apr. 14, 2004; Tony Perry, Iraqi Prisoner Died After Marine Grabbed His Throat, Officials Say, L.A. TIMES, Oct. 22, 2003, at B06. It is not believed that the incident involved interrogation, but it is notable that such alleged offenses involved Marine infantry reservists who had not been trained in the treatment of prisoners (apart from one with relevant peacetime background) and are reported to have been given only a brief orientation before being assigned to this duty. As advocated elsewhere in this Report, proper training of U.S. military and intelligence personnel is essential to achieve compliance with the U.S.’s obligations under CAT.
83. Article 93 prohibits a person subject to the jurisdiction of the UCMJ from committing acts of“cruelty toward, or oppression or maltreatment of, any person subject to his orders.” The phrase “any person subject to his orders” in Article 93 is defined as: “not only those persons under the direct or immediate command of the accused but extends to all persons, subject to the…[UCMJ] or not, who by reason of some duty are required to obey the lawful orders of the accused, regardless whether the accused is in the direct chain of command over the person.” Manual for Courts-Martial, United States, (1995 edition), Part IV, P 17c(1).
84. An officer in Iraq was charged under Article 28 (10 U.S.C. § 928) for firing his pistol near an Iraqi detainee’s head in the course of an interrogation in order to elicit details about a planned ambush or assassination. Thomas E. Ricks, Army Accuses Officer In Iraq Of Firing Pistol Near Prisoner, WASH. POST, Oct. 30, 2003, at A14. The officer faced a possible court-martial and up to eight years imprisonment. Following a UCMJ Article 32 hearing (which is akin to a grand jury or preliminary hearing), the division’s commanding general ordered that the officer be fined and allowed to retire. See U.S. Officer Fined for Harsh Interrogation Tactics (Dec. 13, 2003) (available at http://www.cnn.com/2003/US/12/12/sprj.nirq.west.ruling).
85. See Section II(C) for a discussion of who qualifies as a “protected person” under Geneva IV.
86. “Common Article 3” provides that detainees “shall in all circumstances be treated humanely” and prohibits the following acts “at any time and in any place whatsoever”: “violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;” and “outrages upon personal dignity, in particular humiliating or degrading treatment.” Common Article 3 also provides that the “wounded and sick shall be collected and cared for.”
Although neither the United States nor Afghanistan is a party to Additional Protocol I, it is generally acknowledged that relevant sections of Protocol I constitute either binding customary international law or good practice, in particular the minimum safeguards guaranteed by Article 75(2). See Michael J. Matheson, Remarks on the United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, reprinted in The Sixth Annual American Red Cross-Washington College of Law Conference on International Humanitarian Law: A Workshop on Customary International Law and the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INT’L L. & POL’Y415, 425-6 (1987).
Article 75 provides that “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions” “shall be treated humanely in all circumstances” and that each state Party “shall respect the person, honour, convictions and religious practices of all such persons.” Paragraph 2 of Article 75 prohibits, “at any time and in any place whatsoever, whether committed by civilian or military agents”: “violence to the life, health, or physical or mental well-being of persons, in particular . . . torture of all kinds, whether physical or mental,” “corporal punishment,” and “mutilation”; “outrages upon personal dignity, in particular humiliating and degrading treatment . . . and any form of indecent assault”; and “threats to commit any of the foregoing acts.”
The U.S. rejection of Additional Protocol I was explained in a presidential note to the Senate in the following terms: “Protocol I. . . . would grant combatant status to irregular forces even if they do not satisfy the traditional requirements to distinguish themselves from the civilian population and otherwise comply with the laws of war. This would endanger civilians among whom terrorists and other irregulars attempt to conceal themselves. These problems are so fundamental in character that they cannot be remedied through reservations. . . .” See 1977 U.S.T. LEXIS 465.
87. See Geneva III, Art. 5; see also U.S. Dept. of Army, Field Manual 27-10, “Law of Land Warfare”, Art. 71 (1956); U.S. Dept. of Army, REGULATION190-8 Military Police, “EnemyPrisoners of War, Retained Personnel, Civilian Internees and Other Detainees,” § 1-5 (a)(2) (1997).
88. See, e.g., Dep’t of Defense, Secretary Rumsfeld Media Availability en route to Camp X-Ray (Jan. 27, 2002) (available at http://www.defenselink.mil/news/Jan2002 ... 27sd2.html) (“Sometimes when you capture a big, large group there will be someone who just happened to be in there that didn’t belong in there.”) (remarks of Respondent, Secretary of Defense Donald H. Rumsfeld); Carlotta Gall, Freed Afghan, 15, Recalls a Year at Guantánamo, N.Y. TIMES, Feb. 11, 2004, at A03 (quoting released teenager claiming to have been captured by non-U.S. forces and handed over to the Americans while looking for a job); Jan McGirk, Pakistani Writes of His U.S. Ordeal, BOSTON GLOBE, Nov. 17, 2002, at A30 (“Pakistan intelligence sources said Northern Alliance commanders could receive $5000 for each Taliban prisoner and $20,000 for a[n] [al] Qaeda fighter. As a result, bounty hunters rounded up any men who came near the battlegrounds and forced them to confess.”).
89. See, e.g., Sean D. Murphy, Contemporary Practice of the United States Relating to International Law, 96 AM. J. INT’L L. 461, 476-77 (2002).
90. Article 4-A of Geneva III provides, in part:
Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:
Members of the armed forces of a Party to the conflict as well as members of militias or volunteer corps forming part of such armed forces.
Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:
(a) of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war. Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power. . . .
91. Article 43 of Additional Protocol I provides: “The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct or its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.”
92. See Geneva III, Art. 5; see also, U.S. Dept. of Army, Field Manual 27-10, “Law of Land Warfare”, Art. 71 (1956); U.S. Dept. of Army, REGULATION190-8 Military Police, “EnemyPrisoners of War, Retained Personnel, Civilian Internees and Other Detainees,” § 1-5 (a)(2) (1997). Under U.S. military regulations, a “competent tribunal” pursuant to Article 5 of Geneva III consists of three commissioned officers. The regulations also require that persons whose status is to be determined be advised of their rights; be permitted to attend all open sessions, call witnesses and question witnesses called by the tribunal; be permitted (but not compelled) to testify or otherwise address the tribunal; and be provided with an interpreter. The regulations provide for the tribunal’s determination of a detainee’s status in closed session by a majority vote and require a preponderance of the evidence to support the tribunal’s finding. See Erin Chlopak, Dealing with the Detainees at Guantánamo Bay: Humanitarian and Human Rights Obligations Under the Geneva Conventions, HUM RTS. BR.(Spring 2002), at 6, 8.
It should be noted that the “competent tribunal” outlined in ARMY REG. 190-8, § 1-6 is a quick, administrative process that is highly dependent upon the availability of witnesses during ongoing combat and support operations. Unsworn statements may be presented as evidence, and a record of the proceedings is developed. Although the tribunal may or may not include military lawyers such as members of the Staff Judge Advocate General (“JAG”), JAG lawyers will subsequently review the record. The record may also be the basis for any further proceedings for war crimes or for any other penalty.
Fundamentally, the tribunal determines only status and does not adjudicate liability. Tribunals are required under Geneva III only when status of the detainee is in doubt. When, for example, ten thousand uniformed members of a regular enemy infantry division surrender as a body, there is no need for a tribunal. When, however, non-uniformed, but possibly military, personnel mix with refugees, that is a classic situation for such tribunals.
93. Specifically, Article 13 of Geneva III provides:
Prisoners of war must at all times be humanely treated. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a prisoner of war in its custody is prohibited, and will be regarded as a serious breach of the present Convention. In particular, no prisoner of war may be subjected to physical mutilation or to medical or scientific experiments of any kind which are not justified by the medical, dental or hospital treatment of the prisoner concerned and carried out in his interest.
Likewise, prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.
94. Manooher Mofidi and Amy E. Eckert, “Unlawful Combatants” or “Prisoners of War”: The Law and Politics of Labels, 36 CORNELL INT’L L.J. 59, 89 (2003).
95. Murphy, supra note 89, at 476-77.
96. Id.
97. Id.
98. Powell asked that the Administration recognize that the Geneva Conventions apply to the conflict between the U.S. and Taliban regime and that the Administration convene a “competent tribunal” to determine the status of the prisoners pursuant to Article 5 of Geneva III. See Katharine Q. Seelye, A Nation Challenged: The Prisoners; Powell Asks Bush to Review Stand on War Captives, N.Y. TIMES, Jan. 27, 2002, at A01; William Safire, Editorial, Colin Powell Dissents, N.Y. TIMES, Jan. 28, 2002, at A15.
99. See supra note 18.
U.S. Secretary of Defense Donald Rumsfeld, responding to a request for clarification, referred to Article 4(a)(2) of Geneva III to explain why the Taliban could not qualify for POW status: “The Taliban [like Al Qaeda] also did not wear uniforms, they did not have insignia, they did not carry their weapons openly, and they were tied tightly at the waist to Al Qaeda. They behaved like them, they worked with them, they functioned with them, they cooperated with respect to communications, they cooperated with respect to supplies and ammunition.” Secretary of Defense Donald H. Rumsfeld, Remarks on Ferry from Air Terminal to Main Base, Guantánamo Bay, Cuba (Jan. 27, 2002) (transcript available at http://www.defenselink.mil/transcripts/ ... 27sd2.html).
100. Applying the four-part test from Article 4(a)(2) of Geneva III to the determination, the Lindh court found that the Taliban had an insufficient internal system of military command or discipline, that the “Taliban typically wore no distinctive sign that could be recognized by opposing combatants,” and that the “Taliban regularly targeted civilian populations in clear contravention of the laws and customs of war.” Lindh, 212 F. Supp. 2d at 558. Implicitly the Lindh Court held that the four conditions listed in Geneva III, Article 4(a)(2) also apply to “regular armed forces.” Id. at 557. In concluding that the Taliban were not regular armed forces, the Lindh court stated “[i]t would indeed be absurd for members of a so-called ‘regular armed force’ to enjoy lawful combatant immunity even though the force had no established command structure and its members wore no recognizable symbol or insignia, concealed their weapons, and did not abide by the customary laws of war. Simply put, the label ‘regular armed force’ cannot be used to mask unlawful combatant status.” Id., at n.35.
See also Int’l Comm. of the Red Cross, Commentaries to Article 4(a)(1) Convention (III)relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, ICRC Database on Int’l Humanitarian Law (available at http://www.icrc.org./ihl.nsf/b466ed681d ... 25040?Open Document) (“It is the duty of each State to take steps so that members of its armed forces can be immediately recognized as such and to see to it that they are easily distinguishable from members of the enemy armed forces or from civilians.”). See also, generally, INGRID DETTER, THE LAW OF WAR (Cambridge Univ. Press, 2nd ed., 2000), at 136; Christopher Greenwood, International Law and the War Against Terrorism,78 INTERNATIONAL AFFAIRS301, 316 (2002); Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT’L L. 328, 335 (2002).