Article 5, Third Geneva Convention (POWs)

I have been asked by several people on what basis I have said that the US, in its detentions in the war on terror and in its detentions arising from the Afghanistan and Iraq conflicts, is not in per se, wholesale violation of the Geneva Conventions by its refusal to treat all of the detainees as prisoners of war. Let's go back to the Third Geneva Convention to answer this.

Of course it is quite possible that with respect to particular detainees, the US might be - or might have been - in violation of an obligation to treat them as POWs. These would be detainees that meet the requirements of Article 4, Third Geneva Convention, which defines legal combatants entitled to POW protection. The clearest case of combatants entitled to POW treatment in the current armed conflict is uniformed Iraqi soldiers taken prisoner by the US in the Iraq fighting prior to the fall of the Saddam regime. My point is not that in particular cases, the US might not be in violation - certainly it might be, in particular cases. It is, rather, that the US is not in violation of the Geneva Conventions on account of its refusal to treat all detainees as POWs. The US is not in violation of the Geneva Conventions per se, although that has been a consistent assumption in newspapers and the media criticizing the Bush administration.

Legal combatancy is defined under GC III, Art. 4, and it contains all the criteria which have been well discussed for several years for being a lawful combatant. Al Qaeda does not meet the criteria, most obviously because its means and methods of fighting - targeting civilians - systematically violate the laws of warandc deprive it, as a group, of legal combatant status. Art. 4 makes legal combatancy quite deliberately the characteristic of a group - it does not recognize solo fighting, an army of one, and it requires a responsible chain of command to enforce the laws of war. It is possible under Art. 4 that even though a particular individual has done nothing to violate the laws of war, he or she might still be held accountable as an illegal combatant because the group itself systematically violates the laws of war.

Whether the Taliban met the requirements for legal combatancy is an open question. The argument in favor is that it was the armed forces of a state; the argument against is that only three countries in the world had even recognized the Taliban as the legal government of Afghanistan nor was it recognized by the UN General Assembly - implication being that if it was not a state, then its armed forces were merely irregular militias, which had to comply with the rules of responsible command, adherence to the laws of war, and so on. I discuss the arguments over the Taliban and Al Qaeda with respect to legal combatant status briefly in a NYT magazine article, available at SSRN, here.

In Iraq, the US acknowledged that regular Iraqi soldiers were legal combatants, and even counted Saddam as such, although I do not believe that decision was either compelled by the law or a wise precedent. With respect to irregular fighters, or fighters who took off their uniforms to continue fighting, the US has grounds to treat them as illegal combatants and deny them POW status. With respect to the period in which the US was legally the occupier in Iraq, the US had broad latitude under the Fourth Geneva Convention both to detain individuals as security risks (although in such cases, they had certain protections similar to POW protections under the Fourth Geneva Convention) as well as very broad (and almost entirely unused) powers to punish insurgency and attacks against the occupation, including the death penalty, again under the Fourth Geneva Convention. With the transfer of sovereignty back to an Iraqi government, the US role has - arguably - shifted again, and the US no longer stands as the occupying power in the meaning of the Fourth Geneva Convention; this does not mean that detainees in US hands lack legal protections under the Fourth Geneva Convention, but it does mean that the sovereign Iraqi government has new rights and the US no longer has the plenary right to punish Iraqi terrorists and insurgents as an occupier, although it may do so for violations of international law such as war crimes.

Whether one is discussing alleged Al Qaeda, Taliban, Iraqi insurgent terrorists, or others, the first move is to claim that all of them must be treated as POWs. As noted above, many of them do not meet the requirements - not just that they do not meet the requirements as individuals; they do not meet them as a group. Hence there is no obligation to treat them as POWs, because they are not legal combatants. The next move, then, is to say that although they do not meet the definitions of a legal combatant under Art. 4 of GC III, if they are not combatants, then they must be "civilians" within the meaning of the GC IV - as the ICRC puts it, no one can be left without a Geneva Convention status. You are, on this line of thinking, either a combatant or you are a civilian. (Sometimes it is put, as the Economist once rather ignorantly did in an editorial two years ago, that after all the term "illegal combatant" or "unprivileged belligerent" nowhere appears in the Geneva Conventions. One might point out that the term "war crime" nowhere appears, either, but that does not make it less of a legal category.)

The problem with this second move, however, is that it does not follow that if you are not a legal combatant, you must therefore be a civilian - with even more rights, in some respects, than POWs. You do not thereby become legally a civilian - i.e., a noncombatant. You are a combatant, not a noncombatant, and not for you was the Fourth Geneva Convention drafted. You remain, instead, precisely what you are - an illegal combatant, an unprivileged belligerent. Your status is something, although not exactly, like that of a spy. You may not be summarily executed (the US apparently accepts the minimum due process procedures of Art. 75 of 1977 Additional Protocol I as customary international law although it rejects the treaty as a whole), but you are not entitled to the full panoply of procedural protections due a legitimate POW.

And procedural protections are at the heart of the matter. As far as conditions of detention and interrogation go, the US can certainly treat an unprivileged belligerent in ways that are far rougher than how it can treat POWS - whether it has fallen below the barrier into torture in certain cases, I do not address here. But the still more crucial question is what it takes to try and punish for war crimes, illegal belligerency, terrorism, and so on. If the detainee is legally entitled to be treated as a legitimate POW, then he or she (arguably, however; this has been reasonably disputed) is entitled to all the legal protections that a US soldier would be entitled to faced with the same charges. Because the US military justice system attempts to duplicate US constitutional protections as far as possible, and that involves a very, very high standard of evidence, proof, and so on. Which leads us back into the nightmare world delivered to us by the Clinton administration and its law-enforcement model of fighting terrorism, in which you have to get Federal courtroom standards of proof to act, have no basis to act in advance because, after all no crime has yet been committed, and it's not worth bringing Bin Laden in even when offered because you don't think you have the goods to indict him.

But the third and final move to say that the US is in per se violation, across the board violation, of the Geneva Conventions is to argue, well, the US has not held adequate and required hearings before a proper tribunal to determine the status of the detainees. My view - as a matter of policy, not international law - is that the Bush administration made a grave prudential and moral error in not abiding by its own 1977 DoD regulations concerning the brief and unappealable three officer hearings to be used in cases where legal combatant status was at issue. Those regulations were seen by the ICRC and by everyone else as going far beyond the standard required to offer a hearing and a tribunal. The Bush administration has contested that it even needed to offer such hearings - doing so not so much from a view of the interpretation of the Geneva Conventions as from a quite unrelated constitutional theory about the unitary power of the executive in matters of war. It has been losing on the big constitutional theory, and carrying down with it a vital but unrelated view of obligations under the Geneva Conventions. Tod Lindberg, in a brief article in the Weekly Standard, expressed my view on this best (link to follow).

But was the Bush administration in violation per se of the Geneva Conventions when it refused initially even to hold hearings? Many, many commentators simply declared that it was, but they might have troubled themselves to look and see what Article 5 actually says:

"Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal."

This Article has been widely announced as meaning that any doubts that arise must be determined by a competent tribunal; the debate then turns on what constitutes a competent tribunal and whether the Bush administration's hasty retreat to something like the 1977 regulations qualifies. But Federal judges might take note that this is not what the Article actually says. It literally says that should any doubt arise, then the person shall be treated as a POW until their status is determined by a competent tribunal. It does not say that the question of whether any doubt has arisen must be determined by a competent tribunal, even if the person demands one. It is literally open for the administration to determine that a certain group has undertaken unprivileged belligerency and that with respect to any particular individual, no doubt arises and, therefore, there is no obligation to convene a tribunal.

I reiterate, this is not in my view a proper way for the Bush administration to proceed, and having bet not on the language of the Geneva Conventions but instead on a bold and misguided constitutional theory, it has probably foreclosed the powers it had under the treaty language and will probably see the brief and informal tribunal plainly contemplated and blessed by the ICRC's view in times past replaced by something resembling a full trial. None of this is to the good, and the blame lies squarely with the overreaching of the government's briefs before the Supreme Court. After all, does anybody think that it would be a good idea for the US Navy, if it were to capture alleged drug traffickers in ships on the high seas in the Caribbean, to have to convene a full tribunal should someone claim combatant status? There are reasons why this article was structured as it was - its literal meaning is not merely a technicality. It should have applied DoD's 1977 regulations as they existed.

Nevertheless, it is quite false to say that the US is in violation of the Third Geneva Convention across the board because it has not afforded detainees "competent tribunals" - the administration's actions are within the literal language of the treaty article.

(Note: I'll go back and add some links later on and clean up some grammar.)

Update (Friday, December 31, 2004): I don't agree with all of it, but this is a very good article by Phillip Carter in Slate on this topic as well as on the problems of keeping the standards for interrogation in bureaucratic secrecy.