The Geneva Conventions and "Enemy Combattants"

[Balta1701]

There has been much discussion around here lately on the topic of whether or not the detainees at Guantanamo bay have any legal classification under the Geneva Conventions, and consequently whether or not the U.S. is permitted to torture those detainees for information.

 

I believe part of this Media Matters piece gets to the heart of the issue.

 

Falsehood #3: The Geneva Conventions apply only to prisoners of war

 

Numerous media figures have defended the harsh treatment of Guantánamo detainees by claiming that the Geneva Conventions apply exclusively to prisoners of war (POWs). Though many legal scholars agree that Al Qaeda detainees are not entitled to POW status under the Third Geneva Convention, which details protections specifically for POWs, the Fourth Geneva Convention (GCIV) grants different protections to non-POWs.

 

But the U.S. Army's own field manual states that GCIV protects "all persons who have engaged in hostile or belligerent conduct but who are not entitled to treatment as prisoners of war."

 

Even the White House has acknowledged that the Geneva Conventions grant protections to some detainees who are not POWs. On May 7, 2003, the White House announced that President Bush had revised his earlier determination and decided that the conventions would apply to the suspected Taliban (but not Al Qaeda) detainees held at Guantánamo even though they are not POWs. Then-press secretary Ari Fleischer explained:

 

    FLEISCHER: Although the United States does not recognize the Taliban as a legitimate Afghani government, the President determined that the Taliban members are covered under the treaty because Afghanistan is a party to the Convention. Under Article 4 of the Geneva Convention, however, Taliban detainees are not entitled to POW status.

 

Falsehood #4: Enemy combatants do not qualify for protection under the Fourth Geneva Convention

 

Some conservatives have disputed whether the Guantánamo detainees even qualify for protections under GCIV. Their common argument is that GCIV applies specifically to civilians, thereby excluding so-called "illegal enemy combatants."

 

Again, the Army's field manual recognizes GCIV protections for non-POWs "engaged in hostile or belligerent conduct."

 

Further, the ICRC -- the organization that pioneered the concept of international humanitarian law and has monitored compliance with the Geneva Conventions for more than 140 years -- concluded in a 2003 legal analysisPDF file that "unlawful combatants" are entitled to protections under GCIV, citing its 1958 analysis of GCIV, which stated:

 

    Every person in enemy hands must have some status under international law: he is either a prisoner of war and, as such, covered by the Third Convention, a civilian covered by the Fourth Convention, [or] a member of the medical personnel of the armed forces who is covered by the First Convention. There is no intermediate status; nobody in enemy hands can fall outside the law. (Commentary: IV Geneva Convention Relative to the Protection of Civilian Persons in Time of War, Geneva, 1958)

The key point here is that even if the detainees at Guantanamo are classified as something other than Prisoners of War, they are not fully removed from the protections of the Geneva Convention. The 4th Geneva Convention deals specifically with detainees who are not classified as POW's. They are explicitly given certain rights by the convention, and these rights cannot be abridged by attempting to create a new category of detainee not defined by the convention.

 

The actual rights listed in the convention for these sorts of detainees may be a useful bit of info as well. They include such rights as the right to religious worship, clean facilities, showers, visits from the Red Cross, etc. These are spelled out under the rights of detainees starting at about article 80 of the 4th convention.

 

The Geneva Conventions themselves spell out specific categories of people who can be detained by parties that are signatories to the convention. POW's, detainees, and spies. We have not granted POW status to the Al Qaeda detainees. This however, does not mean that they are granted no protection by Geneva. The rights of the 4th convention would still remain in effect, as these are the rights given by the signatories of the convention to all prisoners who are detained.

 

Finally, it is also worth noting that the Geneva Conventions were signed by the President and ratified by the U.S. Senate. This gives these treaties the force of law. In other words, it is a violation of U.S. law to violate the Geneva conventions.