Geneva Conventions loom large over U.S. terrorist detainee policy—even
when the conventions may not strictly, as a matter of law, apply. In
addition to their legal force, the conventions carry the weight of
moral authority. It is no small matter, then, to question whether U.S.
detention efforts fall short of the standards of Article 3—an article
that is common to all four Geneva Conventions (hence its designation as
"Common Article 3," or CA3). But that was the implication when
President Barack Obama ordered the secretary of defense to conduct an
immediate 30-day review of the conditions of detention in Guantanamo to
"ensure full compliance" with CA3.
What exactly such compliance requires is open to debate.
CA3: Already in Force
the military's point of view, Common Article 3 has been in full force
for over two and a half years at Guantanamo. In June 2006, the United
States Supreme Court ruled in the case of Hamdan v. Rumsfeld that America's armed conflict with al-Qaeda was non-international in character and, as such, was governed by CA3. Within a week of that ruling, Deputy Secretary of Defense Gordon
England issued a department-wide memorandum requiring all Department of
Defense components to comply with CA3. Shortly thereafter, all
components of the Department of Defense reported that they were in full
compliance; this included the Joint Task Force in charge of detention
operations at Guantanamo Bay, Cuba.
On September 6, 2006, the
Department of Defense issued a department-wide directive applicable to
all detainees in DOD custody or effective control. That directive
incorporated verbatim CA3 of the Geneva Conventions and required the
entire Department of Defense, including Guantanamo, to comply with CA3.
this September 2006 directive marks the end of the story depends on
what the text of CA3 means. And that is not so straightforward an
Common Article 3 is the
third article common to each of the four Geneva Conventions. The Geneva
Conventions codify much, albeit not all, of the law regulating armed
conflict and the humane treatment of persons detained during armed
conflict. The four conventions, as most recently revised and expanded
in 1949, comprise a system of safeguards that attempt to regulate the
ways wars are fought and to provide protections for individuals during
wartime. The conventions themselves were a response to the horrific
atrocities of World War II. The first convention covers soldiers
wounded on the battlefield, the second covers sailors wounded and
shipwrecked at sea, the third covers prisoners of war, and the fourth
covers civilians taken by an enemy military or otherwise impacted.
CA3 precisely requires and what it forbids is subject to debate.
According to the actual language of CA 3, detainees "shall in all
circumstances be treated humanely," but the term humanely is
never defined. "[O]utrages upon personal dignity, in particular
humiliating and degrading treatment," are strictly prohibited, whatever
they may be. Also prohibited are "cruel treatment and torture," but
again, there is no definition of these terms. CA3 is a good statement
of principles, but aside from banning murder and hostage-taking, it
provides no concrete guidance to anyone actually holding detainees.
CA3 is a part of U.S. treaty and criminal law. Congress, in the 1999
amendments to the War Crimes Act, made it a crime to violate CA3. For
certain acts, such as murder, taking hostages, and obvious acts of
torture, the prohibited conduct should be clear, since Congress has
defined the elements necessary to prove these crimes in statutory law.
what exactly constitutes "outrages upon personal dignity, in particular
humiliating and degrading treatment"? No universal or even national
consensus as to the definition of these terms exists. There is,
however, no doubt that what constitutes humiliation or degradation, as
distinct from acceptable treatment, is highly context-specific and
culture-dependent. For example, any custodial interrogation or
incarceration entails elements of humiliation that would be
unacceptable in other contexts. Likewise, some societies find placing
women in a position of authority, as guards or interrogators, over
detained individuals unacceptable; for other cultures that believe in
basic gender equality, these practices are not even remotely
humiliating. Even Jean Pictet, the world-renowned human rights attorney
who helped draft the Geneva Conventions and led the International
Committee of the Red Cross, noted that with respect to CA3, the
drafters wanted to target those acts that "world public opinion finds
particularly revolting." This is a highly uncertain guide.
also stated that the outrages upon personal dignity referenced by the
treaty were of a sort "committed frequently during the Second World
War." This too gives little guidance. Presumably, the prohibition would
include forcing ethnic or religious minorities to wear insignia for
purposes of identification, such as the infamous yellow star imposed by
the Nazi regime on the Jewish population of Germany and occupied
Europe. What else it may include is very much open to debate; the Axis
Powers were ingenious in the area of humiliating and degrading
Principles of CA3
In interpreting this
important provision, the United States would be justified in following
some basic principles inferred from CA3.
First, CA3 imposes
obligations on the parties to a conflict. This suggests that to violate
the provision, the conduct must be both of a sort that world opinion
finds "particularly revolting" and systemic, undertaken as a matter of
policy rather than simply the actions of individual miscreants or
criminals. Thus, although the treatment of some detainees by a few
guards may have been outrageous, humiliating and degrading—and perhaps
criminal—it would not violate CA3 unless it was ordered as a matter of
policy or the responsible authorities failed to suppress and punish the
conduct once it became known to them. All allegations of mistreatment
are required to be investigated as a matter of written order.
the use of the law of war paradigm cannot, by definition, be a
violation of CA3, even if its specific application produces a less than
ideal result. For example, detaining individuals believed to be enemy
combatants is no violation of CA3, even if subsequent review concludes
that their status classification was erroneous and they were not, in
fact, enemy combatants. Under the same logic, and despite some
oft-invoked but misguided criticisms of the U.S. detention policy,
detaining captured enemy combatants for the duration of hostilities and
not charging them with specific criminal offenses does not violate CA3.
the purpose of CA3 was to compel compliance with the most basic
requirements in the context of a civil war or other internal conflict,
where it was acknowledged that the other provisions of the four
conventions would not apply. Thus, it is a fair assumption that CA3
should not be interpreted as simply incorporating those other Geneva
Convention provisions into the conflicts to which CA3 is applicable.
Outrages upon personal dignity would not, therefore, include simply
denying captives the rights and privileges of honorable prisoners of
war under the third convention or of civilian persons under the fourth.
CA3, like any other specific treaty provision, should be construed in
the context of the overall treaty regime of which it is a part. In this
regard, the overarching purpose of the 1949 Conventions (and all of the
other laws of war-related treaty norms) has been to ensure that the
popular passions aroused by war and even the consideration of military
necessity do not vitiate the fundamental requirements of humane
treatment. To suggest that, for example, the wartime standards of
treatment should be fundamentally superior to the peacetime standards
would turn this logic upside down and is untenable. Accordingly, such
incarceration-related practices as single-cell confinement and
involuntary-feeding—which, subject of course to appropriate safeguards,
are used in civilian penal institutions of many Western
democracies—cannot, by definition, infringe CA3.
There is no
doubt that the intentions reflected in CA3 are laudable, but it is a
less than perfect standard for the law of war, which must provide real
and precise answers to an entire range of specific questions. Indeed,
CA3's language is ambiguous, capacious, and difficult to apply in some
circumstances. Fortunately, U.S. detention operations in general, and
post-2006 in particular, have featured conditions for detainees
that—structured in ways that provide more than sufficient compliance
with CA3—compare favorably with any detention facilities in the history
ENDNOTES:Hamdan v. Rumsfeld, 126 S.Ct 2749 (2006). It is worth noting that, insofar as the Hamdan
case dealt with the legality of military commissions, and the Court's
observations about the applicability of the CA3 were raised in that
context, the Bush Administration could have opted to read the case
holding narrowly. However, the Administration and the Department of
Defense chose to construe Hamdan's teaching broadly and applied CA3 across the entire range of detention operations.