Geneva III mandates that POWs be treated humanely at all times. This includes freedom from physical and mental torture, acts of violence, intimidation and insult, and exposure to public humiliation." Pursuant to Article 14, POWs also "are entitled in all circumstances to respect for their persons and their honour.... [and] shall retain the full civil capacity which they enjoyed at the time of their capture." With respect to interrogation, in particular, Article 17 of Geneva III provides: "No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatever. Prisoners of war who refuse to 93 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. Specifically, Article 13 of Geneva III provides: Prisoners of war must at all times be humanely treated. Any Likewise, prisoners of war must at all times be protected, answer may not be threatened, insulted, or exposed to any unpleasant or disadvantageous treatment of any kind." Under Article 17, POWs are only obligated to provide their name, rank, date of birth, and army, personal or serial identification number or equivalent information. Geneva III does not, however, prohibit non-coercive interrogation of POWS. POWs may be interrogated, but they are not obliged to respond to such interrogation, nor may they be threatened, coerced into responding or punished for failing to respond. The Geneva Conventions also do not "preclude classic plea bargaining" - i.e., the offer of leniency or other incentives in return for cooperation.94 Thus, to the extent detainees from the War in Afghanistan are considered POWs or to the extent their POW status is in "doubt" pending the determination of status by a competent tribunal, interrogation tactics which rise to the level of "coercion" are prohibited by Geneva III. The United States' Position In sharp contrast with past conflicts (such as Vietnam and Korea) in which it was U.S. policy to presume that military prisoners were entitled to POW status regardless of the possible nonqualification of their forces under Geneva III, from the very outset of the War in Afghanistan, United States officials labeled captured Al Qaeda and Taliban prisoners "unlawful combatants," and stated that the Geneva Conventions were, therefore, entirely inapplicable to 95 their treatment." The United States reasoned that Al Qaeda was not entitled to the protections of the Geneva Conventions because: (1) Geneva III could not apply to members of a nonstate organization, such as Al Qaeda, (2) the conflict was not an internal conflict such that Al Qaeda 94 95 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). Murphy, supra note 89, at 476-77. members could benefit from the protection of Common Article 3, and (3) in any event, Al Qaeda members failed to meet the requirements set forth in Article 4(A)(2) of Geneva III. The United States argued further that, since Afghanistan was not a functioning state during the conflict and the Taliban was not recognized as a legitimate government, Geneva III could not apply to the Taliban.97 After vigorous criticism was leveled against these arguments, Secretary of State Colin Powell requested that the Administration reconsider its position." On February 7, 2002, in response to Powell's comments, the Administration partially reversed its initial position. Although the Administration continues to argue that the Geneva Conventions are inapplicable to Al Qaeda captives, President Bush announced that Geneva III was applicable to the Taliban because both the U.S. and Afghanistan were signatories to the Convention and the parties had been involved in an armed conflict. However, President Bush further argued that because the Taliban had violated the laws of war and associated closely with Al Qaeda, "[u]nder the terms of the Geneva Convention ... the Taliban detainees do not qualify as POWs." The decision in 96 Id. 97 Id. 98 99 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. 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 United States v. Lindh, 212 F. Supp. 2d 541 (E.D. Va. 2002), which specifically addresses the issue of whether the Taliban are entitled to POW status under Geneva III, sheds further light on Critiques of the United States' Position International humanitarian and human rights organizations and legal bodies, 101 including the International Committee of the Red Cross (“ICRC”),1o1 the Inter-American Court 100 101 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/2002/t01282002_t0127sd2.html). 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/b466ed681ddfcfd241256739003e6368/3ca76fa4dae5b32ec12563 ed00425040?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 AFFAIRS 301, 316 (2002); Ruth Wedgwood, Al Qaeda, Terrorism, and Military Commissions, 96 AM. J. INT'L L. 328, 335 (2002). ICRC, Geneva Convention on Prisoners of War (Feb. 9, 2002) (available at http://www.icrc.org/Web/Eng/siteeng().nsf/iwpList454/26D99836025EA80Dc1256B660061 0C90) (“International Humanitarian Law foresees that the members of armed forces as well of Human Rights, 102 Amnesty International,103 the International Commission of Jurists,' 104 the Secretary General of the United Nations,' the United Nations High Commissioner for Human 106 105 Rights, as well as certain U.S. and foreign international law scholars107 have criticized the U.S. position on several grounds. as militias associated to them which are captured by the adversary in an international armed conflict are protected by the Third Geneva Convention. There are divergent views between the United States and the ICRC on the procedures which apply on how to determine that the persons detained are not entitled to prisoner of war status.") 102 IACHR, DECISION ON REQUEST FOR PRECAUTIONary Measures (Detainees at 103 104 105 106 GUANTÁNAMO BAY, CUBA), 41 I.L.M. 532, 533 (2002) (“It is . . . well-known that doubt exists as to the legal status of the detainees.") Amnesty International, Memorandum to the U.S. Government on the rights of people in U.S. custody in Afghanistan and Guantánamo Bay (available at http://web.amnesty.org/aidoc/aidoc_pdf.nsf/Index/AMR510532002ENGLISH/$File/AMR51 0532.pdf) (The United States' "selective approach to the Geneva Conventions threatens to undermine the effectiveness of international humanitarian law protections for any U.S. or other combatants captured in the future.”) ICJ, Rule of Law Must be Respected in Relation to Detainees in Guantánamo Bay (Jan. 17, 2002) (available at http://www.icj.org./ews.php?id_article=2612&lang=eng) (“The United States has refused [POW] status to Taliban fighters even though, as members of the armed forces, they are entitled to it.") Kofi Annan, Press Encounter outside No. 10 Downing Street, London, (Feb. 25, 2002) (unofficial transcript available at http://www.un.org/aps/sg/offthecuff.asp?nid=103) (“The Red Cross has indicated that anyone who was arrested in the battlefield, or picked up in the battlefield, is a prisoner of war and they do not make a difference between the Al Qaeda and the Taliban. And under the convention, where there is a disagreement, normally you have an independent tribunal to resolve this."). Mary Robinson, Statement of the High Commissioner for Human Rights on Detention of Taliban and Al Qaeda Prisoners at U.S. Base in Guantánamo Bay, Cuba (Jan. 16, 2002) (available at http://www.unhchr.ch/hurricane/hurricane.nsf/0/C537C6D4657C7928C1256B43003E7D0B? opendocument) (“All persons detained in this context are entitled to the protection of international human rights law and humanitarian law, in particular the relevant provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Geneva Conventions of 1949.") |