Geneva Conventions—Guantanamo Bay

Approximately 4 years and 7 months after then-White House Counsel Alberto Gonzales infamously opined in a memo to President Bush that “the ‘new paradigm’ of the war on terror ‘renders obsolete’ the Geneva Conventions’ ‘strict limitations on questioning of enemy prisoners and renders quaint some of its provisions,’”^[1] the Pentagon has announced that it has changed its policies and “all detainees at Guantánamo Bay and all other prisoners in US military custody [are] entitled to protection under the Geneva conventions.”^[2]

The story seems to have first broke “in late editions of the Financial Times” yesterday, which revealed “Gordon England, the deputy defence secretary, had sent a memo to senior defence officials and military officers last Friday, telling them that common article 3 of the Geneva conventions – which prohibits inhumane treatment of prisoners and requires certain basic legal rights at trial – would apply to all detainees in US military custody.”^[3]

The policy shift, which White House Spokesman Tony Snow claims is “not really a reversal of policy,”^[4] comes as Congress is meeting to conduct hearings “on the politically charged issue of how detainees should be tried.”^[5] Republican Senator Arlen Specter of Pennsylvania, who has often been—initially, at least—critical of administration policies, announced that “We’re not going to give the Department of Defense a blank check,” while his colleague on the Senate Judiciary Committee, Democratic Senator Patrick Leahy of Vermont, said that “’kangaroo court procedures’ must be changed and any military commissions ‘should not be set up as a sham. They should be consistent with a high standard of American justice, worth protecting.’”^[6]

The Pentagon’s principal deputy general counsel, Daniel Dell’Orto, told the Senate Judiciary that “he believes the current treatment of detainees … already complies with Article 3 of the Geneva Conventions.”^[7]

Common Article 3 of the Geneva Convention Relative to the Protection of Civilian Person in Time of War states that, “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,” certain provisions.^[8] Some of these provisions are:

• individuals who take no active part in hostilities, including members of armed forces who have laid down their arms, “shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any similar criteria.
• the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
  • violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
  • taking of hostages;
  • outrages upon personal dignity, in particular humiliating and degrading treatment; and
  • 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.^[9]

Some of the policies being proposed to Congress by the administration already suggest that the administration feels the detainees should not receive courts-martial, arguing that “in some cases, courts-martial would give detainees more rights than citizens had in US civilian courts, and argued that the procedure would hamper efforts to gather intelligence on the battlefield.”^[10] Senator Lindsay Graham on the Senate Judiciary Committee, however, told DOJ and Pentagon witnesses that any failure to adopt courts-martial as a “baseline” would lead to a “long hot summer.”^[11]

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[1] Michiko Kakutani, Gonzales as an Architect of Presidential Power, NY Times, Jul. 11, 2006.
[2] US Says Guantanamo Inmates Have Geneva Rights, Guardian Unlimited, Jul. 11, 2006.
[3] Demetri Sevastopulo, Pentagon in U-Turn on Geneva Rights for Detainees, Fin. Times, Jul. 11, 2006.
[4] Anne Plummer Flaherty, U.S. Will Give Detainees Geneva Rights, AP (via Yahoo!), Jul. 11, 2006.
[5] Id.
[6] Id.
[7] Id.
[8] Geneva Convention relative to the Protection of Civilian Persons in Time of War, Apr. 21-Aug. 12, 1949, Pt. 1, Art. 3.
[9] Id. (emphasis added).
[10] Sevastopulo, supra note 3.
[11] Id.