John Bellinger Reflects on the 61st Anniversary of the Geneva Conventions

by Kenneth Anderson

John Bellinger reflects on the meaning of the four Geneva Conventions of 1949 in today’s world, in a post at Foreign Policy:

Today, 12 August, is the 61st anniversary of the signing of the Geneva Conventions of 1949, the international treaties designed to protect soldiers and civilians during armed conflicts.  The treaties became the focus of international attention in 2002 when the Bush administration controversially concluded that al Qaeda and the Taliban were not entitled to their protections. President Obama has reaffirmed America’s “commitment” to the Geneva Conventions but has not been specific about how the Conventions apply to al Qaeda and Taliban detainees. To re-assert U.S. leadership with respect to the laws of war, the Obama administration should announce that the United States accepts specific provisions of the Conventions and engage other countries to develop new rules where the Geneva Conventions do not apply.

http://opiniojuris.org/2010/08/12/john-bellinger-reflects-on-the-61st-anniversary-of-the-geneva-conventions/

21 Responses

  1. John tried to do this when he was Legal Advisor at State and the rest of the world decidedly rejected his attempts to pitch “reinterpretation or new treaty” to provide cover for the bogus Bush game playing with language which was put in place in 2002 precisely to permit torture.  The United States has signed these treaties and they are obligations on the United States.  There is no need for this or any president to say “s/he accepts them”.  That raises a spectre that US ratification is somehow open to a President informing what he or she accepts.  If the President does that it is simply a question of whether the US is in compliance with its obligation or not – not a question of whether there is an obligation ab initio.  We should not go down John’s path of not so subtly switching the game on US compliance with its international obligations.  Rather, what we should do is hold the President to the obligation of the United States – he or she is not above the United States.  Including holding past President Bush to the obligation through criminal prosecution in US domestic courts for torture.
    Best,
    Ben

    Best,
    Ben

  2. Prof. Davis,

    I have a fundamental question for you.  Isn’t it the case that the President of the United States can renounce a treaty?  Assuming there is no specific exit requirement in said treaty, can’t the President simply say that the US is no longer bound by the treaty.  And if that is true, doesn’t the President have the lesser power — to say that a treaty no longer applies in certain circumstances?  Assuming arguendo that Geneva applies to the “war on terror”, can’t the President just say that it doesn’t apply any longer.  Didn’t Bush effectively (if inartfully) do that?

  3. I just wonder what NewStream Dream has to say about Iran’s obligations to allow nuclear inspectors, North Korea’s obligations not to threaten other countries under the UN Charter and so on: what is the fuss if their presidents/leaders say that they just do not apply any longer? Why is the US always so concerned about that?

  4. @NewStream Dream

    If it was so easy to unsign a treaty or interpret it yourself, there would be not treaty in the World and nobody would sign one. Why would one negotiate for decades if the very next day the very first head of state can break it or claim that it does not apply in a specific case? Imagine that the Belgian prime minister announces tomorrow that the genocide convention does not apply in his specific case and just gasses six million of his citizens.

    Even if a state unsigns a treaty, that does not necessarily relieve that country of the obligations in the treaty. One of the reasons why, is because some of the rules in the treaty are just a formulation of already existing customary rules of international law, or they become such rules after (and maybe because of the fact that) the treaty is signed.  For instance genocide and torture are peremptory norms of international law and even if states unsign the Genocide Convention or the Convention Against Torture, states are still bound by the rules in those treaties.

  5. The answer is quite clear:  yes a President (or leader) can withdraw his/her state from a treaty, but the question that is begged is whether such a President (or leader) has in fact done what is necessary to make such a withdrawal.  If we compare the process by which Bush withdrew the US from the optional protocol to the Vienna Convention on Consular Relations (I am going from memory here) after the first ICJ judgment in the Mexico-US case (notice etc) with what has happened with regard to the Geneva Conventions one sees a careful effort to use domestic reinterpretation of the international obligation – but not to go all the way to withdrawing of the treaty.  In the run up to the Military Commission Act of 2006 generals and former general types and diplomats weighed in very heavily to avoid the appearance of the US trying to unilaterally change the nature of its treaty obligations vis a vis other states – while putting in place that retrograde domestic law for domestic law purposes.  Of course, the US could not extract itself from its treaty obligations under either approach without withdrawing from the treaty under the basic rule – no state can use its internal law to extract itself from its international obligations.

    Thus, if the Canadians had the juevos rancheros (especially in having decided that they violated his rights under the Canadian charter of rights and duties) they would assert to the United States the US’ Geneva obligations with regard to Omar Khadr right now with regard to the kangaroo military commission that has gone on this week.  The Military Commissions Act of 2006 or 2009 would be of no moment for the Canadians – just municipal law of the United States that is not binding on Canada.

    Leaving to the side the customary international law argument, the point is simply that Bush did not withdraw the United States from its Geneva Convention obligations.  Rather, he attempted some misguided domestic reinterpretations to permit torture.  That is old banana republicanism which is beneath a superpower’s honor and beneath the lawyers who went along with it as enablers.

    John attempted to get other countries to go along with the reinterpretations in Geneva at one point, and I was very happy to see that the other countries rejected that approach – maintaining the Geneva obligations signed by all countries.

    So, it is not enough in this world to say that what Bush did was de facto withdrawal.  There is no evidence that such a type of withdrawal has in fact occurred or can occur as a legal manner – at least from what I have seen.  One can imagine the uncertainty introduced in this arena by recognition of that kind of practice.  I believe that is one reason the Vienna Convention on the Law of Treaties tries to lay out the process of withdrawal including, as a default, a one year notice provision.  

    Moreover, the country would remain liable for its treaty obligations until the time at which its withdrawal became effective.  So the United States has been liable under the Geneva Conventionas all these years – the torture was done by Bush and a crime has been committed for which he and others should face criminal prosecution in the United States.

    Best,
    Ben

     

  6. Here is new news on Khadr’s case I just saw.  The one military lawyer on Khadr’s team fell ill and will be out for a month.  Let’s think about that military JAG doing his/her job in that place. 

    http://www.nytimes.com/reuters/2010/08/13/news/news-us-guantanamo-canadian.html?hp

    And, apparently Khadr has a Canadian lawyer, but under the rules he cannot appear for him.  Folks remember Nuremberg where one of the first rules was that the defendant could be represented by any lawyer of his choosing?

    I am so sick of this kangaroo commission process that has its genesis in the PMO on 2001 and then politically inspired efforts to put lipstick on the pig ever since.

    Best,
    Ben

  7. Isn’t the Vienna Convention of the Law of Treaties specifically non-retroactive?

    Think the Geneva conventions have a mechanism for withdrawal, see the sections on “denunciation” which, I believe, no country has ever done.

  8. M. Gross – thanks for both those points.  Operating from vague memory here.  Always dangerous!

    May I take this occasion to draw everyone’s attention to a book that I have read this summer.  It is the English translation of Hans Fallada’s Every Man Dies Alone.  Written in 24 days in 1946 it apparently was only translated into English in 2009 (A russian colleague of mine said he had read it in Russia when he lived there.)

    While there are differences of opinion on the book (scathing Guardian review; glowing NYTimes review), I just found it everything and more: a thriller, a romance, and high literature.  Based on the true story of anti-Nazi resistance by an ordinary German couple during the Third Reich whose name was Hempel.

    Best,
    Ben

  9. I don’t understand Bellinger’s comment.  As Ben points out, the US is a party to the conventions and therefore why should Obama announce that the United States accepts specific provisions? Also, the Supreme Court ruled in Hamdan that common Article III applies to members of Al Qaeda in US custody.  What is left to discuss exactly?

  10. I finally can’t help responding since the commenters appear to be commenting without having taken the time to read my op-ed.  The op-ed urges the Obama Administration, if it is not going to apply either the Third or Fourth Conventions to detained persons at Guantanamo and Bagram (which the Administration doesn’t seem inclined to do), AT LEAST to announce that the U.S. accepts Article 75 of Protocol I as customary international law (a step I supported during the previous Administration and which the Obama Administration is still studying).  The Administration should also urge the Senate to ratify Additional Protocol II.  Together, these two steps would help the Administration to clarify the international law rules that the U.S. is applying to detainees (since otherwise the Administration is applying only Common Article 3).  I would have thought that many OJ readers would support having the Obama Administration clarify the international legal rules it is applying to detention.  Moreover, my op-ed does not propose, nor have I ever suggested, a new treaty or re-interpretation of the Geneva Conventions.  My op-ed argues that in situations where the existing Geneva Conventions do not provide clear legal guidance on certain questions (such as when certain civilians who participate in hostilities qualify as combatants or how much legal process should be provided to them), then countries should either agree on which human rights rules apply, or agree to adopt additional rules, so that countries conduct detention in accordance with clear international legal standards, and detained persons receive appropriate legal protections.

  11. Happy that you come into clarify.  I read what it said above which speaks to Conventions and your piece and the point does not appear to be a merely Article 75 rule.

    As to the “clear legal guidance”, I do not buy and have not bought that canard for all these years since that game was started back in 2001.  Lawyerly parsing is a well known game which was part and parcel of the reinterpretation to torture effort. 

    A classic is Bradbury’s conditions of confinement as opposed to conditions of interrogation memos – a very thinly veiled attempt to take advantage of internal US domestic law precedents on conditions of confinement while not taking into account the totality of what is being done to the detainee from the point of view of international standards.  Salami sandwiching is an old trick.

    I can remember the Yoo memos making up a standard out of thin air that even the OPR whitewash had a hard time denying. 

    I can remember the word play with Geneva Conventions language.

    I can remember President Bush having such a terribly hard time with the words “outrages against personal dignity” after Hamdan.  As if Common Article 3 only came into application because the Supreme Court said it.  What crap.  The Geneva Conventions were US obligations binding on the United States no matter the bobbing and weaving the Executive attempted to do to enable torture.

    I can remember all the effort to open a space for torture. 

    What I read in this “clarification ” kind of effort is the effort again to “reduce down” standards on how persons detained as security detainees are treated. 

    The point is not that countries should now agree, countries have already agreed but a well organized and sophisticated effort was put in place to create controversy where there was none or little.  The United States made a concerted effort to try to argue that human rights standards did not apply at all whether coming from Geneva Conventions, Convention Against Torture, ICCPR, Customary International Law etc.  It was a full blown effort to push out of the way all that edifice.  I was there and watched it everyday as the power of the Executive and the Legislative sbires was pushing on and on to rationalize and enable torture.  And as a citizen, I rejected it then and reject it now.

    Smart lawyers can always play word games, but my sense of the consensus as I lived it with the ASIL Centennial Resolution on the Laws of War and Detainee Treatment was that there was essentially unanimous rejection of this “clarifying” effort.  You can read Mary Helen O’Connell’s memo from back in 2006 that accompanied the resolution.

    So, yes I take issue with this argument of clarification being all that is being sought.  This process we have seen is much more pernicious than that and we should not be duped by the words of clarification.  I think they are more about words of obfuscation and legitimizing what at its heart was illegitimate when it occurred and remains illegitimate until now.

    As to trying to reinterpret Geneva Convention, help me here.  I read on this website about discussions between the Legal Advisor and counterparts from other countries in Geneva to come up with new language that was led by John Bellinger – Did I hallucinate that?  I read that it did not get much traction.  Did I hallucintate that?

    I also read here about the Customary International Humanitarian Law book that came out from the ICRC in around 2006 being subject of what was official US government criticism by John Bellinger in a long memo to the authors trying to make a distinction between what the training manuals say (and the other texts on which they based that book) and what countries do.  Did I hallucinate that?

    I did not see a bunch of other countries joining in on those efforts by the United States in the Bush Administration.

    Sorry, I will never buy it and those architects of the word game playing that try to confuse the word with the thing (basic linguistic problem) to the point that America tortured are not going to get away with it.

    Best,
    Ben

  12. For what it is worth, my take is that the U.S. should clarify that it views Art. 75, Protocol I as customary international law applicable to ALL armed conflict of any type.  That would eliminate the need to address the second protocol as its protections would be largely superfluous.  Given the fairly narrow scope of armed conflict governed by the second protocol, I see more utility in recognizing that most (not all) of the first protocol codifies customary rules applicable to all armed conflict of any type.  I believe this also to be more consistent with historical (pre-9/11) U.S. practice.

  13. Ben,

    What is your position with respect to the proper legal status of captured al Qaeda fighters? 

    -Are they prisoners of war per Geneva III?  If so, under which category of Article 4 do they fall?

    -Are they protected civilians per Geneva IV?

    What is their proper status?

  14. Definitely Geneva IV – Security Detainees.

    Possibly, depending on the relation under the Article 4(a) categories with the Taliban government, Geneva III POW’s under several of the categories including the levee en masse category.

    Taliban, definitely Geneva III POW’s.

    Best,
    Ben

  15. The Taliban army, including the 055 Brigade of al Qaeda trained foreign fighters, should be covered by GC III Art 4
    “(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.”
    However, if you insist that even though the Taliban had exercised complete control of 90% of the country for years and was the only functioning government in Afghanistan, that because the US did not recognize it, the government was only a “party” to a civil war, then
    “(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.”

    The Levee en Masse section “(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces” clearly does not apply to foreign volunteers (not inhabitants) who came to Afghanistan to enlist and who went through months of basic training at the al Faroque camp  and therefore had lots of time “to form themselves into regular armed units” and in fact were formed into a regular armed unit called the 055 Brigade even if they did not wear uniforms.

    To be fair, the Army of Afghanistan under the Taliban was dressed fine to fight the civil war it was fighting according to Afghan rules against the Northern Alliance. Remember that in the ’80s the uniformed members of the Afghan Army took over the government and invited in the uniformed members of the Soviet Army. They were defeated by the non-uniformed fighters of the Afghan tribes and foreign volunteers. So at that time the Afghans developed a view that bad guys wear uniforms and good guys don’t. When we invaided their country (with good reason) they did not have time to change, nor were they inclined to put on uniforms or claim GC III POW status.

    That said, although the Army of Afghanistan under the Taliban may have met the criteria set out in Article 4 of GC III, the members of that army did not meet the criteria of wearing uniforms, or of
    “Art 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.” Nor did they conform to the requirement that “Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth”.

    The US must assume that a detained enemy captured in uniform, or carrying a military ID card, or who gives name, rank, and serial number is implicitly asserting POW status under GC III. It must also consider (and grant an Article 5 tribunal) to anyone who explicitly asserts GC III status. However, no Taliban army fighter (including members of the 055 Brigade) has ever asserted a claim to POW status, even when prompted to do so by a CSRT. [Hamdan asserted protection as a "civilian accompanying the army", but nobody on either side argued he was a lawful combatant.] Without some explicit or implicit reason to consider granting GC III protection to a detainee, then Afghans captured are held under GC IV. Since GC IV excludes non-Afghans, it is not clear that an al Qaeda fighter who is a national of some other country is protected by any of the Conventions, except possibly for General Article 3.

    Note that although the word “Civilian” is part of the title of GC IV, that document does not claim that every “Protected Person” under its scope is a civilian under IHL. Spies, saboteurs, and unlawful combatants fall under GC IV but are not civilians.

    These gaps and uncertainties are precisely the sort of thing that Bellinger is suggesting should be addressed, while his critics insist they do not actually exist, even when they are in the clear text of the Conventions. For example, the clear language of GC IV Article 4 “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are,” makes it clear that the Saudis, Yemenis, and Canadians (Khadr) are not protected by GC IV or any other Convention. That describes almost everyone at Gitmo.

  16. Thanks Howard.  On the Taliban and O55 and GCIII POW – we agree.

    “The Levee en Masse section “(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces” clearly does not apply to foreign volunteers (not inhabitants) who came to Afghanistan to enlist and who went through months of basic training at the al Faroque camp  and therefore had lots of time “to form themselves into regular armed units” and in fact were formed into a regular armed unit called the 055 Brigade even if they did not wear uniforms.”

    I think your definition is too narrow of who could be covered by levee en masse.  This is the eternal debate on restrictive or non-restrictive views on the application of each of these categories.

    “That said, although the Army of Afghanistan under the Taliban may have met the criteria set out in Article 4 of GC III, the members of that army did not meet the criteria of wearing uniforms, or of
    “Art 17. Every prisoner of war, when questioned on the subject, is bound to give only his surname, first names and rank, date of birth, and army, regimental, personal or serial number, or failing this, equivalent information.” Nor did they conform to the requirement that “Each Party to a conflict is required to furnish the persons under its jurisdiction who are liable to become prisoners of war, with an identity card showing the owner’s surname, first names, rank, army, regimental, personal or serial number or equivalent information, and date of birth”. ”

    Again, “wearing uniforms” and “distinctive sign visible at a distance” debate that has been going on for years.

    On other parts, these sections do not say what is the consequence if the POW does not give these things or their government does not have these things.   Having poverty, illiteracy and/or incompetence of your government as meaning you lose POW status appears a bit too first world leaning. As to non-assertion one is a POW, the US from the beginning asserted these persons did not have POW status.  My question is when you are being held by someone who asserts you have no POW status and tortures your people, would you dare to assert such status?  I doubt it, and I find the lack of use of that assertion unpersuasive.  Moreover, for the persons picked up based on bounties and all that – I remember them asserting they were civilians in some cases.  The fact that we knew large numbers of these persons had nothing to do with the Taliban or AlQaeda (per filings of Colonel  Wilkerson in at least one court case (sorry do not have the cite for it)) but picked them up and brought them to Gitmo suggests at least to me that it was the indifference of the detaining power to respecting POW status that militates for the non-assertion of POW status while there was assertion of civilian status.

    “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are,” 

    Again it is the narrow and restrictive version debate.  I found this discussion of the point over at the ICRC page  
    http://www.icrc.org/Web/eng/siteeng0.nsf/htmlall/5LPHBV/$File/irrc_849_Dorman.pdf

    “For the latter exception the wording is not absolutely clear. According to the ICRC Commentary to Article 4 of GC IV — which is confirmed by the travaux préparatoires — the following distinction is required:
    On the territory of belligerent States nationals of a neutral or cobelligerent State, so long as the State in question has normal diplomatic representation in the State in whose territory they are, are excluded. In occupied territories nationals of a co-belligerent State, so long as the State in question has normal diplomatic representation in the occupying State, are excluded.

    However, in this situation, nationals of neutral States are protected persons and the Convention is applicable to them. Its application in this case does not depend on the existence or non-existence of normal diplomatic representation.”

    I vaguely remember that the Taliban government were recognized and had diplomatic relations only with Dubai and Pakistan (someone will no doubt correct me on this) and in that vision the Canadian, Yemeni or Saudis WOULD be covered by GC IV.

    Finally, in reading through this space I come back to the basic idea in all of the categories that are described (and leaving aside for current purposes the underpinnings of customary international law) that the basic idea for the non-GC III types was the obvious point that these persons would not have POW protection.   Also, they were not civilians that did not take up arms in the GC IV setting.  They might be internees in some settings.  But, the bottom line was and is, they could not be taken out and shot summarily like in the pre-1949  settings.  I understand the effort here as meaning that for those who did not have POW status, these persons could be interrogated and held etc as security detainees, tried for crimes under the local law or recognized war crimes and have the protections of security detainees.  Their level seems similar to the saboteurs spies etc.

    This discussion is not a theoretical debate, from the point of view of the American soldier, these are persons shooting at you.  Once you capture them, I understand that they can not be taken out and shot. Held, interrogated, but not tortured either.  That is a GC IV security detainee for me.

    And yes if the effort to clarify was a process in good faith rather than what it appeared to be as a process to allow torture, then I could see going down that path.  But, my understanding of the universal or almost universal rejection of those US efforts was that, around the world, states were unwilling to enter into such a discussion when they sensed that the underlying purpose was to legitimize the US torture.  They might play games through intelligence services to show they were “helpful” to the US due to US pressure, but they were not going to participate in a “redefinition” game that was more about legitimizing the illegitimate treatment than an honest intellectual exercise.

    And we can keep parsing down and down and down to find some subset that will not fit this or that category, but the heart of it for me is that we do not take people out and shoot them or torture them when we capture them.  If they are shooting at us (broad sense of taking up arms here), of course they are legitimate targets for our soldiers to shoot at.  I am a realist – believe it or not. I also have no love for these detainees.

    Sorry for being so long.

    Best,
    Ben

     

     

     

     

  17. I would feel much more comfortable with clarification efforts AFTER the US criminally prosecuted its high level civilians and generals for devising and implementing torture.  Not just low-level grunts encouraged to violate their UCMJ obligations by suits and folks with stars who then leave them twisting in the wind as “a few bad apples.”  The bad apples were in the War Council and the National Security Principals meetings.  They know who they are and they know what they did.
    Best,
    Ben

  18. What GC IV says is:

    “Nationals of a neutral State who find themselves in the territory of a belligerent State, and nationals of a co-belligerent State, shall not be regarded as protected persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are.”

    What the ICRC commentary says is:

    “p.46] A. — ‘ On the territory of belligerent States: ‘ protection is accorded under Article 4 to all persons of foreign nationality and to persons without any nationality. The following are, however, excluded: …
    2) Nationals of a neutral or co-belligerent State, so long as the State in question has normal diplomatic representation in the State in whose territory they are;”

    So I can see the basis for confusion. In the text of the convention, the distinction is that citizens of neutral nations are not covered if their nation has diplomatic relations with the US (” the State in whose hands they are”, the detaining power). That is, Khadr who was not an Afghan national is protected, or not, by the Canadian government and its normal diplomatic relations with the US.

    If, however, you read the text of the commentary, the ICRC seems to claim that the trigger is whether the neutral nation has diplomatic relations with the Taliban government of Afghanistan. Since almost no countries recognized that government, that would result in GC IV coverage in this case.

    However, is it not reasonable to point out that when the text of the convention is different from the commentary, then the text prevails. Furthermore, this interpretation in the commentary makes absolutely no sense at all. If a country has diplomatic relations with the Taliban but not with the US, this leaves that person with absolutely no protection at all. The convention does make sense in that a national of a neutral power is protected by the diplomatic relations between that power and the US, but a national of a neutral power that does not have relations with the US (Iran, Cuba, North Korea) is protected by the Convention just like Afghan nationals since they have no other source of protection.

    Of course, if you interpret the commentary (interpret the interpretation?) so that “in whose territory they are” means where they are being detained, then nationals of neutral nations detained at Bagram are not protected if their countries had diplomatic relations with the Taliban (or does it change to be the current government), while those at Gitmo are not protected if their countries had diplomatic relations with Cuba. Is that even plausible?

  19. And Howard we see the point – the text, the logic of the text, the commentary, and interpretation of the commentary.

    “Of course, if you interpret the commentary (interpret the interpretation?) so that “in whose territory they are” means where they are being detained, then nationals of neutral nations detained at Bagram are not protected if their countries had diplomatic relations with the Taliban (or does it change to be the current government), while those at Gitmo are not protected if their countries had diplomatic relations with Cuba. Is that even plausible?”

    I put to the side the Cuba point because allowing the detaining power to change the status by moving someone to another country to change the “where they are” seems at odds with the whole idea of GCIV protections for civilians or security detainees.

    On the Taliban “where they are” and someone at Bagram, if Pakistan or Dubai had diplomatic relations with the Taliban then there was the possibility that these countries could assert diplomatic protection with the Taliban.  

    And, with the question with the Karzai vs. the Taliban government I guess the argument would be that those countries with diplomatic relations with Karzai could assert diplomatic protection for their nationals permitting the exclusion.  This would still not reach the Canadian, Yemeni, or Saudi.

    Leaving to the side Canada, Yemen, and Saudi Arabia, let us stay with Pakistan and Dubai who did have relations with the Taliban.  With the change of government (assume effective control) what should be the effect of changes in  Pakistan and Dubai relationship with a Karzai government.  I would think the logic of protection is one way – if Pakistan and Dubai maintain relations with the Karzai government they are still able to assert diplomatic protection and there persons are excluded.  If Pakistan and Dubai sever diplomatic relations, then the protections of the Pakistani or Dubai persons as GCIV security detainees comes into play.

    I think the logic is whether the diplomatic relations with the government of Afghanistan are present.  If so, exclusion.  If not at all or no longer, then GCIV protections.

    As to protections petering out, I am not aware of the GCIV providing for such type of transitions.  I would tend to think that the protections vest at one time and remain until the end of hostilities of some kind.  I recognize the ending point is obviously difficult to clearly state – but I would imagine that the logical point would be for the protections to run the longest reasonably possible when the situation remains fluid.

    But, the point is that these persons are not picked up by the Taliban but by foreign forces.  To read this language as saying the diplomatic relations of the US with the country of nationality of the person picked up in Afghanistan would eliminate protection seems to me the more absurd result.  The reason is that the Canadian, Yemeni or Saudi individual fighting the US is small potatoes in the US – Canada, US – Yemen, or US-Saudi relations.  While each of those countries have the right to exercise diplomatic protection, I am not sure that right amounts to a hill of beans for their national picked up fighting against the US.  Canada’s approach to Khadr in colluding with the US in his torture is a data point that does not augur well for that vision.  I am reluctant to see the GCIV leaving these type of detainees to these kinds of vagaries of the invading force diplomatic relations.

    Also, if one goes down this way, I can imagine pressing on the “neutral” and “co-belligerent” terms of the equation with an argument shifting to Yemen, Canada, or Saudi Arabia not being considered neutral or being considered co-belligerents.  In that vision, none of them could be counted on to exercise the right of diplomatic protection in favor of their own nationals.  As you know, the right of diplomatic protection is a right of the state and not of the individual citizen.   And, in that reality, it is hard for me to see the GCIV language as leaving these persons who took up arms with nothing.

    All of these persnickety distinctions sitting in an office in New York when we are talking about people picked up in an armed conflict may appear very arid.  If I go to the heart of the GC regime it is 1) POW’s for those who qualify under the characteristics, 2) security detainees picked up actively participating treated humanely, 3) civilians as protected persons. And the rules are the same baseline minimums of treatment in the international or non-international conflict with the international having more specific bells and whistles as compared to Common Article III.
     
    I can see training soldiers to these points so that they know what to do.

    I also see the rejection of the idea of these persons being able to be taken out and shot as being one of the progressive ideas of the GCIV to reduce the possibility of there being someone who is not protected.  My dad once told me that in WWII when they ran into an SS in his division, they would take them out back and shoot them.  I have no basis for knowing whether that was true or not in the Italian campaign.  I can understand that feeling – I have heard that feeling expressed by some of my students back from Afghanistan.  At the same time, I have heard a feeling of pity for the IED person caught by those same soldiers – even after having lost buddies in that setting.  The idea of GCIII and GCIV of getting people away from the front (tip of the spear) to places where cooler heads prevail seems part of that logic of protecting someone once in the hands of their enemy.

    Because we wanted to torture these persons, our gameplaying with language to try to leave them without protections either in Bagram, in black sites, or in Gitmo leaves me cold.  That’s why I do not buy the euphemistic use of “clarify” when it was clear the effort was more about obfuscating and laying the groundwork for torture.

    Best,
    Ben

  20. I guess I started something that went quite a ways before I’ve been able to come back. Thanks to all for the detailed discussion.

    On the smaller point of detained citizens of neutrals, asking whether the neutral in question has normal diplomatic relations with power X – regardless of how we resolve who X is – only makes sense if diplomatic protection is contemplated.   Thus GCIV does view diplomatic protection, however inadequate it may prove in practice, as primary in certain cases, with direct GCIV protection only a substitute where diplomatic protection is unavailable. 

    Moreover, the Afghan situation – where many of the detainees’ countries did not or do not recognize the Afghan government – is anomalous.  When neutrals participate or are caught up in other conflicts where more ordinary relations prevail, to view GCIV as excluding them from the protected persons category if their country has ordinary relations with the country where they were detained (rather than with the country that detained them) will lead to perverse results.  Anachronistically, it would have excluded from direct GCIV protection American missionaries captured by Japan in China during the Second World War, because the US maintained ordinary diplomatic relations with China.

    The larger point, however, is that whereas Geneva IV contemplates an armed conflict that is essentially a war for territory or an occupation, with civilians becoming involved by virtue of their presence in the disputed territory, current counterterrorism operations are not inherently war for territory and frequently bear little resemblance to the situations contemplated in Geneva IV.  The individuals most likely to be classified high value detainees – and subjected to coercive interrogation of any sort – are also those least likely to be captured or detained in traditional, territory-focused military operations.  Top al Qaeda figures are more typically snatched from their safehouses by targeted special operations or turned over to the US by foreign intelligence services.

    In such cases there is neither any need to protect the population of captured territory from criminality, nor to protect your own forces from harrying attacks in such territory – and thus the circumstances under which the bulk of the Geneva IV provisions dealing with security detainees would apply simply do not exist.

    Finally, whereas the detention of protected persons in Geneva IV is understood as incidental to a war for territory, rather than being a primary military objective, the opposite is true in counterterrorism.  The detention, interrogation, and incapacitation of members of terrorist organizations are among the prime objectives of counterterrorism operations. 

    For all of these reasons, trying to squeeze captured al Qaeda detainees into Geneva IV is, at least in my view, always going to suffer the problems inherent in pushing a square peg into a round hole.

    I would welcome efforts to establish new international norms recognizing the unique nature of counterterrorism operations and detentions.

  21. Nathan,

    Your points are all well taken.  I guess I do not see the round hole or square peg being so significantly different that there is a need to squeeze.  Effort to clarify to mask dumbing down is my worry. 

    I well take the situations of American missionaries in China as compared to Canadians in Afghanistan and which way the interpretation would operate.  I guess what I would say is if those American missionaries took up arms and we were post-1949 the object and purpose of the GC IV is to not leave them only to diplomatic protection if there is an issue of neutrality.  It seems the essence is the security detainee minimal protection.

    As to territory or whatever being the classic goal, the high value detainees are the equivalent of the German general staff or Heydrich – the purpose in grabbing or killing him and commando type operations would seem to me to have the same interest.  And, given AlQaeda’s sworn goal for a Caliphate spreading around the world, and our goal to wrest Afghanistan from Taliban control – I am feeling a lot of territorial battles in this space in any event.

    As to detainees picked up away from the place of armed conflict – if we are calling this an armed conflict situation when we do that – they are security detainees.  They can not be persons covered by no law – as our government attempted to do it with its interpretations.  Even if they are picked up with the consent of the government in another country, that pick up by us and that government consent is subject to GC obligations, other treaty, and customary international law rules too as they apply to both us and that country.

    So you can roll this thing anyway that you wish, but you seem at least to me to always end up with the fact that even our enemies who I detest have minimum rights once captured – however you qualify the battlefield or even if you do not qualify it as a battlefield.  As does every human.  The debate then merely turns to whether this or that state will recognize that right.  Of course one of those basic rights being not to be tortured.  If a state does not recognize that right, its persons are committing a crime whether or not the politics lead to their prosecution.  And someone being a high/low/or medium value detainee is irrelevant – it is clear that we tortured far more than some limited group as part of that common plan.  I mean Khadr is a schmuck who got tortured and I am sure there are plenty of other schmucks who were tortured as we have seen in the reports over the past years.

    Best,
    Ben

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