Thursday, March 30, 2006

DoD Agrees to Issue Abu Ghraib Images

The US Defence Department (DoD) on Tuesday withdrew an appeal challenging a US District Court Order of 2 June 2005, which requires the US Government to turn over to civil rights groups 74 photographs and three videotapes showing abuses at Abu Ghraib prison. The exact wording of the Stipulation and Order of Dismissal of Appeal by the Court of Appeals for the Second Circuit shows that the parties have agreed on the circumstances of the DoD’s execution of the order by Judge Alvin K. Hellerstein.

The order was the sequel to a lawsuit under the US Freedom of Information Act filed against the DoD by the American Civil Liberties Union (ACLU) and other civil rights groups in October 2003 in order to get hold of documents related to abuse of detainees held in U.S. custody abroad. Said lawsuit has, according to ACLU, resulted in the release of more than 90,000 document pages. (For more information on the original proceeding see the ACLU News page) Most of them were duly released by the government, which, however, until now opposed the specific request relating to said photographs and videotapes.

What is especially interesting from the perspective of international humanitarian law is, that in its opposition brief of 30 March 2005 and in two expert declarations (one by Edward R. Cummings, one by Geoffrey S. Corn), the DoD argued that turning over visual evidence of abuse would violate the United States’ obligations under the Geneva Conventions (all documents available from the related ACLU page).
Next to the fact that the US Government invoked the Geneva Conventions, the first thing of interest is that the parties agreed on the applicability of the Geneva Conventions.
The question on the interpretation of the norms of the Geneva Convention seems to be even more interesting. The relevant articles in the Third Geneva Convention obviously are Article 13, 14 and 27. Art. 13 states that prisoners of war "must at all times be protected […] against insults and public curiosity", Art. 14 entitles prisoners of war to "respect for their persons and their honour," while Art. 27 provides for the protection of all protected persons against, inter alia, public curiosity.
The protection of the prisoners against public curiosity also was the main line of argumentation of the US Government, which was obviously declined by Judge Hellerstein, who followed the argumentation of the ACLU which was as follows:
There is a major interest of the public to know of the abuses of prisoners by US officials, even to see all the existing pictures, and therefore the government is under an obligation to publish said pictures because of the Freedom of Information Act.
The publication could possibly be problematic under the Geneva Convention, but the problem could definitely be solved by modifying the photographs to render the subjects unidentifiable.

Now that the DoD has withdrawn its appeal, this position seems to be the accepted interpretation of both the Freedom of Information Act and the Geneva Convention.

See also at and the News at ACLU for more information.