Why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons

And why I therefore totally agree with the position of the US State Department.


First I want to apologize for my only casual posting in the last few weeks, but as I said, my time schedule is very tight. Despite the fact that this still is the case, I have to comment on two events from last week, the first of which I will address in this post.

Last week I read an interesting Los Angeles Times article by Julian E. Barnes addressing the Pentagon’s plans to omit the norms found in the Geneva Conventions prohibiting humiliating and degrading treatment while formulating the new Army Field Manual on interrogation.

Said tenet of international humanitarian law can be found for example in Arts. 13 and 14 of the 3rd Geneva Convention and, more importantly, in Art. 3 para. 1 common to all Geneva Conventions. While Arts. 13 and 14 address especially prisoners of war, who have to be treated humanely and to be protected particularly against acts of violence or intimidation and against insults and public curiosity, Art. 3 extends the humanitarian protection to conflicts where the Geneva Conventions would otherwise offer no protection at all, namely to internal armed conflicts. In practice, one can see Art. 3 as formulating the cornerstones of humanitarian protection in armed conflicts that have to be adhered to under all circumstances, even in conflicts where the Conventions normally would offer no protection at all (see Jean S. Pictet, The Geneva Conventions of 12. August 1949 – Commentary I, Geneva 1952, pp. 52 et seq.).

Art. 3 para. 1 reads:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ' hors de combat ' by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;(b) taking of hostages;

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;

(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

According to the article, the Pentagon has been redrawing its policies on detainees for more than a year in order to guarantee that all detainees are treated humanely, and that the US will remain able to question them, and soon wants to present a new Army Field Manual on interrogation and certain rewritten DoD Directives, including Directive 2310.1 (Version of 1994) on detention operations.
The attempt to lower the standard of protection below the threshold of Art. 3 goes back to an order by President Bush given in 2002. The order superseded US military policy, which for decades has granted the Geneva Conventions standard to all its detainees.

In the rewriting of the Directive it seems that there has been a dispute between military lawyers and the US State Department on the one side, supporting a resumption of Geneva standards in the US policy towards detainees, and the Bush administration including the Pentagon’s intelligence arm on the other side.

My arguments on why it is necessary to stick to the Rules prohibiting humiliating and degrading treatment of detained persons begin, not surprisingly, with some legalistic remarks.

The US has to adhere to the Geneva Conventions, simply because they are legally bound to do so. This may seem a Euro-centric or overly positivistic view of the value of international law to the ears of some lawyers favouring a more ‘realistic’ approach; it is supported, however, by the moral value of the norms in question. Morality is an argument often brought forward by the same lawyers who counsel against the strict observance of international law and an argument often stressed when the US is going to war. The US should therefore in every case observe the basic rules guaranteeing the human dignity it so often claims to defend, and in many cases has defended.
Human rights as well as the principles laid down in humanitarian law formulate the cornerstones of an international system protecting human dignity also against the conduct of states. This is especially true for Art. 3 common to all Geneva Conventions laying down the core principles guaranteeing, as far as possible, humane warfare, as was already shown.

But there are other reasons for the US to observe the rules on detainee protection found in the Geneva Conventions, namely the interests of the US itself, as can be seen from the position of the State Department.
The US has come under severe criticism for many of its actions worldwide; sometimes the criticism is justified, sometimes not. In every discussion concerning alleged or proven abuses of the rules of humane behaviour by US forces, for example in Abu Ghraib and lately in Haditha, it is brought forward that said abuses are connected to the general position of the US administration concerning humanitarian principles.
The detention practice of the US is under special scrutiny since the prison at Guantanamo Bay was founded and since the abuses at Abu Graib, and the criticism is especially severe since the three suicides in Guantanamo last week.
It will be hard to maintain the US government’s position that abuses like those in Abu Ghraib are pure aberrations by individual soldiers, if the official directives themselves no longer reflect the minimum standard of humane treatment of prisoners. It will also be no longer possible to take the position that the US forces acting abroad follow the strictest legal standards, a position often taken by the US government, because formal directives would then say otherwise.
Additionally the credibility of the US in cases like the three recent suicides would be even more damaged as it already is.

It has to be noted here that the publication of the directive as well as other rewritten military guidelines scheduled for April has been delayed because a number of US Senators have asserted doubts on the compatibility of certain rules on interrogation with the anti-torture law issued by senator John McCain last year.
As will be apparent by now, I can only hope that these Senators and the State Department will prevail.