NYT on ICRC detainee access

New York Times, Saturday, 10 December 2005, here, on the Bush administration continuing to deny access by the International Committee of the Red Cross to detainees in secret detention centers, on the ground that they are not legitimate combatants, but terrorists, and hence not entitled to the protections for POWs under the Geneva Conventions, including ICRC visits.

My view is that although the Bush administration's position is legally correct - they are not entitled to POW protections, including ICRC visits - as a matter of policy, not law, the Bush administration should allow ICRC access.

The article, alas, as with most NYT articles on these subjects, reads as though it were thoroughly briefed by the ICRC itself and not by too many others. It is deeply entrenched in the ICRC's view of the world. For example, the article has a graf saying:

"The Red Cross has recognized that some of those held by the United States are not prisoners of war, and do not have the full protections of the Geneva Conventions. But it has argued that no prisoners, not even those alleged to be terrorists, should fall into what it calls a 'black hole' outside any protection under international humanitarian law."

Hmm. This is a bit too much straight from the ICRC. The ICRC's position that those who are not POWs do not have the "full protections of the Geneva Conventions" is literally true but buys tacitly into a much more ambitious ICRC legal position (signalled in the rest of the graf) that is not, however, the text of the Geneva Conventions. "Full protections"? - yes, it is true that terrorists who do not satisfy the requirements to be POWs within the meaning of Geneva III have some small protection of the Convention - viz., a procedural right to a determination that they are not entitled to the protections of the Geneva Conventions.

But that's not the ICRC view of things. It holds that if they are not entitled to POW protection, then they are entitled to what is arguably even better protection as civilians under Geneva IV. That's what the ICRC means when it says that no one should be left without a status under the Geneva Conventions - you are, in its view, either a POW or a civilian. Its view is not that if you are not a POW under Geneva III, and not a civilian under Geneva IV, then as an unprivileged combatant by reason of terrorism you are still entitled to certain minimal protections, such as the legal prohibition against torture and some minimum level of humane treatment. If that were the ICRC position, then it would be on the same procedural page as the Bush administration even if the two had different substantive views on what constituted, for example, actual practices of torture.

But the ICRC's position is much more radical than that. It views non-POW unprivileged belligerents as civilians entitled to all the protections that are supposed to be reserved to people who take no active part in hostilities. This perverse result, holding out for terrorists the protections intended for people who take no active part in hostilities - that is, genuine civilians - simply has the effect of undermining civilian protection because it mixes the legal status of women and children hiding in the basement with terrorists hiding behind their deliberate failure to abide by the regulations of Geneva Convention III on POWs. If you reward bad behavior, you will get more of it. Did the ICRC or various interviewees raise that thought with the NYT writer, Steven R. Weisman? No? Yes? The considerations against the ICRC view, or reasons to consider just how radical a view it is, weren't worth mentioning?

There is indeed a legal status for terrorists who are found to lie outside the boundaries of legitimate POWs - illegal combatants or unprivileged belligerent, a legal status under customary law older than the Geneva Conventions themselves and untouched by them. If you are a terrorist who has undertaken hostilities so as to preclude POW treatment, you don't metamorphose into a civilian as though you had never taken part in hostilities using terrorist means, you are what you are - an unprivileged belligerent. The people held by the US government have a legal status - unprivileged belligerent - it's just that the ICRC doesn't like that status and, mutatis mutandi, neither does the New York Times.

The Bush administration ought to grant access. On the other hand, it would be nice, under those circumstances, if the ICRC actually respected its own mandate to keep confidential its findings and discussions with the US government - something it has had considerable trouble doing in the last couple of years. It is scarcely surprising that the ICRC told the NYT writer, Steven Weisman, that it had "been careful to mute its criticism in order to keep the negotiations more productive" - what else would it have said? It might have been interesting for the record, however, to get the Bush administration's private response to that exceedingly dubious claim. For the Bush administration to deny access now, after a history of ICRC media leaks, is perfectly understandable, although not a good policy decision. The ICRC, for its part, does not seem to have learned that there were reasons why it adopted the confidentiality-in-exchange-for-access policy so long, long ago - among them, that if you violated confidentiality, sooner or later you would not get access. The ICRC can be the ICRC, or it can be HRW or MSF, but it can't be both.

Article excerpts:

***
December 10, 2005, Saturday
New York Times

U.S. Rebuffs Red Cross Request for Access to Detainees Held in Secret

By STEVEN R. WEISMAN

WASHINGTON, Dec. 9 - The United States said Friday that it would continue to deny the International Committee of the Red Cross access to "a very small, limited number" of prisoners who are held in secret around the world, saying they are terrorists being kept incommunicado for reasons of national security and are not guaranteed any rights under the Geneva Conventions.

Adam Ereli, the State Department's deputy spokesman, said the United States would not alter its position after the president of the International Red Cross said in Geneva that his organization was holding discussions to gain access to all detainees, including those held in secret locations.

Mr. Ereli said that the Geneva Conventions requiring humane treatment of prisoners of war did not apply to certain terrorism suspects seized as "unlawful enemy combatants," but that, in any case, the United States treats most of them as prisoners of war.

"We're going the extra mile here," Mr. Ereli said, by allowing the Red Cross access to Al Qaeda suspects and others held at Guantánamo Bay, Cuba, and in Afghanistan. The Red Cross also has access to prisoners held in Iraq.

Aside from those detainees, about two or three dozen terrorism suspects, including a handful of top Al Qaeda operatives, are said by current and former intelligence officials to be held in secret locations.

On Thursday in Geneva, John Bellinger, the senior legal adviser of the State Department, acknowledged that the International Red Cross does not have access to all detainees held by American forces but declined to discuss the existence of secret detention centers.

The Red Cross has recognized that some of those held by the United States are not prisoners of war, and do not have the full protection of the Geneva Conventions. But it has argued that no prisoners, not even those alleged to be terrorists, should fall into what it calls a "black hole" outside any protection under international humanitarian law. A central purpose of the Red Cross is to visit prisoners and protect their human rights.

On Friday, Jakob Kellenberger, the president of the International Red Cross, said the situation of those held secretly remained "a major concern" that would continue to be the focus of discussions with the United States. "We continue to be in an intense dialogue with them with the aim of getting access to all people detained in the framework of the so-called war on terror," he said.

Mr. Ereli of the State Department said that "cases that pose unique threats to our security" would be denied visits by the Red Cross, even on a confidential basis.

In a related development, the Defense Department announced Friday that Anne-Marie Lizin, a representative of the Organization for Security and Cooperation in Europe, a 55-nation group, would visit American detention facilities at Guantánamo and may question the commanding officers and other staff members.

"The department strives for transparency in our operations to the extent possible, in light of security and operational requirements and the need to ensure the safety of our forces," a department statement said.

Mr. Ereli said "there's no legal requirement" to provide Red Cross access to Guantánamo. "Nevertheless, and even though we're not required to do so, we do provide access to the vast majority of detainees under our control, and we do accord Geneva protections to them."
The Red Cross has been seeking greater access to detainees for at least two years but has been careful to mute its criticism in order to keep the negotiations more productive, according to committee officials.

In Europe over the last week, Secretary of State Condoleezza Rice emphasized that it is American policy not to subject detainees to "cruel, inhumane or degrading" punishment in any location, no matter whether they are held by military or intelligence authorities.

Ms. Rice also said on her European trip that the United States would not hand any prisoners over to other countries in the process known as rendition without obtaining assurances that they would not be tortured.