In an isolated prison cell in the middle of the compound of the Federal Correctional Institute in Miami sits America’s longest held prisoner of war: General Manuel Noriega. The former head of the Panamanian Defense Force and de facto leader of that nation is no longer the defiant machete wielding strongman, but instead an aging relic of a very different national security era.
While the continued incarceration of General Noriega might not come as a complete surprise to many, his status as a prisoner of war protected by the Third Geneva Convention very well might. It indeed seems ironic that in the current era of intense debate over the applicability of this treaty to captured and detained “enemy combatants”, this notorious former “thorn in the side” of the first Bush administration continues to enjoy the benefits of this treaty as he serves his sentence for violation of U.S. domestic law.
Noriega’s status as a prisoner of war, trial, conviction, and continued incarceration offer several potential lessons related to the application of Geneva Conventions. First, how the government classifies a conflict significantly impact subsequent application of the law of war, and the relationship between law and policy in the execution of operations. Second, the conflict classification decision should not be based on political or policy expediency, but instead on the criteria provided by treaty, precedent, and highly respected commentaries. Finally, the liberal grant of prisoner of war status in no way constrains the power of our government to try and punish prisoners for pre-capture offenses.
Operation Just Cause, launched on December 19, 1989 to oust General Noriega and destroy the Panamanian Defense Force that sustained him, was the largest and most intense combat operation conducted by the United States since the Vietnam conflict. Although the combat phase of the operation was relatively brief, it involved fighting between U.S. and Panamanian forces, costing the lives of more than 20 U.S. servicemen and countless Panamanians. While this operation appeared to be a classic example of an international armed conflict, the U.S. government did not provide any conflict classification guidance for our forces until the operation was largely complete. As a result, U.S. forces began their operations without a formal determination of the legal status of the conflict, but instead resorted to the Department of Defense policy of applying the law of war to any armed conflict no matter how characterized.
For the hundreds of Panamanian Defense Force personnel captured by U.S. forces, this resulted in treatment “consistent with” the Third Geneva Convention. The U.S. never formally classified these captured personnel as prisoners of war, because subsequent to initiation of combat operations, the government determined that the conflict in Panama was not an international armed conflict. The rationale for this decision was that Guillermo Endara, the Noriega opposition presidential candidate who had by all accounts won a landslide victory in an election subsequently nullified by the General, had “requested” U.S. assistance. As a result, the U.S. government concluded that there was no dispute between Panama and the United States that led to the intervention of armed forces, and therefore the conflict in Panama was, at most, an non-international armed conflict with the U.S. assisting the legitimate government.
For most of the captured personnel, this decision had little consequence, as they were rapidly released at the termination of hostilities. General Noriega, however, was not so fortunate. As seen by the world on live television, he was ultimately captured by U.S. forces, and transported to the U.S, in his uniform, to stand trial for his alleged involvement in drug trafficking.
Once in the U.S., Noriega was brought to trial in the Southern District of Florida on the indictments that pre-dated the conflict and his capture. Noriega made a number of challenges to this prosecution based on international law, none of which proved successful. However, after his conviction, Noriega asserted his right to the protections and benefits of the Third Geneva Convention. In response, the government asserted the “invitational presence” theory originally relied upon to conclude the operation in Panama was not an international armed conflict. The District Court rejected this theory.
In an unequivocal opinion, Judge Hoeveler held that General Noriega was, as a matter of law, a prisoner of war. In what today seems like a prescient response to the government theory, the court emphasized the requirement to interpret and apply the Geneva Conventions broadly and in good faith. Consistent with this requirement, the Judge noted that conflict classification must be based on the de facto situation, and that the de jure status of the authority opposing U.S. forces is not the controlling consideration. So long as that authority possesses de facto control over the armed forces of the state engaged in conflict with U.S. forces, the international armed conflict test of the Geneva Conventions is satisfied. For the court, the situation in Panama fell so clearly into this category that it seemed to almost summarily dismiss the government theory:
The Convention applies to an incredibly broad spectrum of events. The government has characterized the deployment of U.S. Armed Forces to Panama on December 20, 1989 as the “hostilities” in Panama . . . However the government wishes to label it, what occurred in late 1989-early 1990 was clearly an “armed conflict” within the meaning of Article 2.
In reaching this conclusion, the court relied explicitly and extensively on the International Committee of the Red Cross (ICRC) Commentary to the Third Geneva Convention. This reliance reflected recognition of the value and the authority of this interpretive aid, so well understood by international law experts and practitioners.
Judge Hoeveler also addressed the government argument that it was not necessary to decide whether General Noriega was a prisoner of war because he would, as a matter of policy, be treated consistent with that status. The court rejected this argument, and noted the invalidity of attempting to substitute legal determinations with policy application:
The government’s position provides no assurances that the government will not at some point in the future decide that Noriega is not a POW, and therefore not entitled to the protections of Geneva III. This would seem to be just the type of situation Geneva III was designed to protect against.
The limit of policy to resolve issues related to the law of war seems particularly significant today. Even in the most complex operational environment, it is critical for the government to make a timely conflict classification decision in order to establish the legal foundation to control operational execution. Policy then becomes a useful tool to address issues not covered by the applicable law. But when U.S. forces engage in missions involving the application of combat power, the foundation provided by the law of war applicable to either international or non-international armed conflict must be acknowledged at the outset of the operation. Policy may supplement this foundation, but should not be used as a substitute.
The court’s holding that General Noriega was entitled to prisoner of war status did not, however, prevent his criminal punishment for pre-capture violations of U.S. law. As noted above, Noriega remains both an inmate and a prisoner of war. This “dual status” is consistent with the provisions of the Third Geneva Convention, which in no way bars the prosecution and criminal sanction of prisoners of war for offenses committed prior to capture. The power of the detaining state bring such individuals to justice extends to violations of both the domestic law of the detaining state, as was the case with General Noriega; and international law, such as pre-capture violations of the law of war. Prisoner of war status does result in the requirement to comply with certain minimal procedural standards during such prosecutions, and respect for a number of very basic privileges while sentence is being served. But the example of General Noriega clearly demonstrates that these obligations are not particularly burdensome, nor did they in any way meaningfully interfere with the General’s trial and punishment.
The example of America’s longest held prisoner of war suggests that perhaps everything old is new again. This case seems to provide insight into a number of the significant issues related to the detention and punishment of individuals captured during the war on terror: the applicability of the Geneva Conventions; the relationship of law and policy; the value of the ICRC commentaries; the need to interpret this law in good faith; and the feasibility of reconciling prisoner of war status with criminal sanction. Perhaps because this case was decided in a national security atmosphere far less charged than today’s enhances the credibility to the reasoned approach reflected in the opinion. While there are undoubtedly distinctions between the nature of our current enemies and the enemy we confronted in Panama, the final sentiment expressed by Judge Hoeveler seems to provide an excellent perspective on the complex issues related to future application of the law of war:
In the turbulent course of international events — the violence, deceit, and tragedies which capture the news, the relatively obscure issues in this case may seem unimportant. They are not. The implications of a less-than-strict adherence to Geneva III are serious and must temper any consideration of the questions presented.