Torturing the Question

There has been a lot of discussion of prisoner’s rights under the Geneva Convention lately. The Bush administration feels that they should not be bound by the convention, because of the nature of our enemy (they are not a nation-state, they are not uniformed soldiers, and being bound makes fighting the war difficult and puts us at risk). On the other side are the U.N., Amnesty International, and many Senators who believe that as a signatory and as good policy, America is, or should be, bound by the Geneva Conventions. There are a lot of interesting issues here: can torture ever be used? What is America’s obligation to international treaties? How should we treat prisoners of war (as opposed to criminal incarceration of citizens who are guaranteed constitutional rights)? Maybe I will get around to discussing some of these other issues later this semester, but first I wanted to find out exactly what the Geneva Convention says. In all of the news reports that I have heard or read, there is scant reference to the text of the convention itself. It seems that textual analysis is practiced more often by lawyers than by journalists, so undertaking my role in as a lawyer in training, I thought I would reference some of the specific text from the Convention III pertaining to treatment of prisoners:

Part 1, art 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.

Certainly, Al Qaeda is not a party to the convention, nor would they ever wish to be, but does that excuse our obligations under the treaty? Is that unfair? Does upholding the standards in the treaty put us on unfair footing in fighting a rogue enemy that, whether or not we like this war, feels like they are at war with us? Again, I don’t know the answers to these questions, but the text seems to imply that we may still be bound, at least as long as we wish to remain a signatory to the Convention receiving its protections and bound by its duties. (This begs the question of whether the protections of the convention are really worth anything if the enemy is not bound by those same obligations?)

With reference to the treatment of prisoners of war

Art. 4. A. 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:

(2) 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) that 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.

This would seem to indicate that the prisoners of war taken in the so called “war on terror,” may not qualify for protections under the treaty. They are commanded by a superior, but they do not necessarily wear a fixed distinctive sign recognizable at a distance, and even if they carry weapons openly, they do not follow in accordance with the laws and customs of war, primarily with respect to targeting civilians.

There may be very good policy reasons for following the Geneva conventions. One, it might just be good moral policy and we wish to operate our wars according to rules that set a certain moral baseline. Secondly, it might prevent the corruption of the treaty standards in those countries that are signatories and who, at some point in the future take American prisoners. There are some policy arguments pointing the other way as well. An article in last weeks New York Times Sunday Magazine made the point that when Col. Mike Bumgarner decided to implement the Geneva Conventions in Guantanamo Bay, he had much more difficulty keeping order in the prison.

That aside, I think it is important to set limits on what kind of tactics are allowed in dealing with detainees. Abu Grab should not be repeated, and both the Supreme Court 's decision in Hamdan v. Rumsfeld banning the Presidents prior policy of allowing "all necessary force" in the fight against terrorism and the bills passed in, Congress this week proposing new regulations for detainees are good signes that the constitutional balance of power might still be working. I am going to wrap this post up now, but this topic leaves many more questions open than it resolves and I hope to return to it throughout the semester.