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The United States and the Geneva Conventions

Author: Lionel Beehner
Updated: September 20, 2006
This publication is now archived.

Introduction

A politically charged debate has roiled Congress in recent years over the torture and interrogation techniques of those detained by the United States. At issue is whether Central Intelligence Agency (CIA) officers who interrogate top terrorism suspects in detention centers abroad should be held accountable to the Geneva Conventions, which prohibits cruel and inhumane treatment of detainees. The White House wants to reinterpret the article to make it more specific and compliant with U.S. domestic law, specifically to prevent foreign detainees from suing CIA officers and other American officials for war crimes in international or domestic courts. The issue has exposed a rift between the White House and some prominent Republican lawmakers on Capitol Hill.  

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What are the Geneva Conventions?

The Geneva Conventions provide an agreed-upon framework of legal protections to safeguard soldiers, civilians, and prisoners during wartime. The original Geneva Convention, drafted in 1864, dealt with the treatment of wounded troops. Shortly after the Second World War, it was expanded to include military personnel shipwrecked at sea, as well as prisoners of war and civilians under enemy control. The Conventions have been ratified by nearly every country in the world—194 states in total—including the United States. Countries that violate the Geneva Conventions, including Common Article Three, can be held accountable for charges of war crimes.  

What is Common Article Three?

This article of the Geneva Conventions bars torture, cruel, inhumane, and degrading treatment, as well as outrages against the human dignity of prisoners of war, or POWs. Until recently it remained unclear whether the article applied to CIA interrogators, located overseas, who were questioning high-ranking members of al-Qaeda and other so-called “unlawful enemy combatants.” In July 2006, the Supreme Court ruled in its Hamdan decision that this article does indeed apply to top terror suspects detained in CIA-run prisons as well as at Guantanamo Bay. "Quoting [Common Article Three] is like quoting the Bible for international lawyers," says Peter Danchin, a Columbia University legal expert.

Why are the Geneva Conventions in the news?

Since September 11, 2001, the U.S. treatment of suspected terrorist detainees—both abroad and at Guantanamo Bay—has come under criticism from human rights groups and legal scholars. Writing in a January 2002 memo to President Bush, then White House Counsel Alberto Gonzales claimed clauses of the conventions referring to the detention and interrogation of enemy combatants were “obsolete.” Bush, stretching back to 2002, has repeatedly declared detainees in U.S. custody should be treated “humanely, and to the extent appropriate and consistent with military necessity, in a manner consistent with the principles” of the Geneva Conventions. Yet critics of the Bush administration point to Abu Ghraib, the alleged abuses of Guantanamo Bay detainees, and the existence of CIA-run prisons overseas as evidence the Geneva Conventions have been not been enforced or followed.

What is the White House’s position on the Geneva Conventions?

The White House has criticized the Supreme Court’s Hamdan ruling for restricting its ability to prosecute and gather valuable intelligence from terrorist suspects overseas. “The administration has been compelled to act after Hamdan and the reaction from Congress,” says Christopher Rassi, an associate legal officer for the UN International Criminal Tribunal for Rwanda. President Bush has called Common Article Three an unclear legal blueprint for interrogators. “The standards are so vague that our professionals won't be able to carry forward the program, because they don't want to be tried as war criminals. They don't want to break the law,” he told reporters September 15. CIA officials, the Wall Street Journal reports, have begun taking out insurance policies that will cover civil judgments and legal costs if they are prosecuted.

President Bush, who says interrogations by CIA officials have prevented future terrorist attacks on U.S. soil, has proposed a bill that would, in effect, reinterpret Common Article Three to comport more with U.S. domestic law. Backers of the White House bill point to the issue of reciprocity, which forms part of the backbone of international law: States uphold international legal norms because they expect other states to do likewise. But because the enemy in the current context includes non-state actors like al-Qaeda or the Taliban, neither of which is expected to reciprocate and provide Geneva Conventions protections to U.S.detainees, the rules must be rewritten, they argue.

Why are some Republican senators opposed to this White House bill?

Senators John McCain (R-AZ), John Warner (R-VA), and Lindsey Graham (R-SC) argue that a reinterpretation of the Geneva Conventions would put U.S. soldiers at risk abroad because it would allow other states to bend the rules. “What if a CIA paramilitary guy is caught in Iran,” Graham told Newsweek. “What would our response be if the Iranian government put them on trial as a war criminal? We would scream bloody murder.” Opponents of the White House bill also point to the moral authority of the United States in the war on terror. Rassi says the U.S. reinterpretation of the Geneva Conventions sets a bad precedent and could spark other states to follow suit, which undermines the effectiveness of these conventions.

Also at issue is the value of intelligence gleaned from torture or other forms of coercion. “Nothing is accomplished because it doesn’t produce reliable testimony,” says Linda Malone, a visiting professor at the University of Virginia Law School. “In fact, it actually does more damage than good.” Opponents also question the value of military tribunals that allow hearsay testimony or evidence obtained from torture.

Why do some military officials oppose the Bush plan?

Legal experts say the Geneva Conventions had already been largely incorporated into the Pentagon’s Uniform Code of Military Justice before revisions to the manual earlier this month banning specific forms of torture. “The definition of torture and of cruel and inhumane treatment has been workable from a military perspective [since the Second World War],” Malone says. “JAGs [ Judge Advocate Generals] were saying they don’t want it to be broken down into specifics.” On September 13, a number of JAGs signed a letter in support of the White House bill, but experts say some of the uniformed lawyers were pressured to sign the statement and that many, in fact, objected to the Bush plan. “JAGs have said, ‘We can do this [interrogate terrorist suspects] by following the rules,’” says David M. Crane, an international law professor at Syracuse University. “The wording of that letter [the JAGs signed] was like kissing your sister: supportive but with very faint praise.”

Can the United States technically reinterpret parts of the Geneva Conventions?

Only under U.S. domestic law, legal experts say. Signatories to treaties can attach reservations or include provisos at the time they sign or ratify international treaties. For example, the United States included a few reservations to the Geneva Conventions and their additional protocols on issues like the death penalty. However, it is uncommon for signatory states to revise their obligations many years after joining a treaty (of course, some states can choose to just opt out of treaties). In the case of the Geneva Conventions, “internationally this is settled black-letter law,” Crane says. The issue, he says, focuses on a U.S. domestic debate to prevent foreign detainees from suing CIA officers for war crimes in U.S. domestic courts.  

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