Gates states the following in his memoir: None of us doubted in the early 1990s that, just as soon as he could, Saddam would resume the programs he had under way before the [Gulf] war to develop biological, chemical, and nuclear weapons. Few practices and norms of CIL with regard to conflict and the conduct of war have not been codified into LOAC legislation. Robert Gates, the U.S. Secretary of Defense under both the Bush and Obama Administrations from 2006-2011, likewise supported the U.S.-led coalitions war to remove Saddam Husseins regime. Yet as even a cursory examination of the history of the nation's laws of war shows, presidents from Washington to Reagan and beyond have long championed the idea of humane treatment of prisoners . Geneva Convention relative to the Treatment of Prisoners of War ADOPTED 12 August 1949 BY the Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War, held in Geneva from 21 April to 12 August 1949 Share View ratification status by country Table of Contents Part I International Committee of the Red Cross.Geneva Conventions. *For an excellent documentary discussing the CIAs use of enhanced interrogation techniques on captured terrorists detained at Guantanamo prison, and presenting, However, while this is a clear and generally accepted definition of torture, there is still. international treaties, conventions, pacts, agreements and protocols), according to the LOAC, (2) Whether or not a State or individuals are. [15], CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. [18] Derbyshire, Section Four: When and to Whom Does LOAC Apply, p. 6, and 149.335 Introduction to LOAC in Section One: Introduction to LOAC and Historical Development, p. 16., 149.335 Law of Armed Conflict, ibid. Despite the U.S. Supreme Courts rulings in 2006 and 2008, however, strong arguments can and have still been made that the former inter-State, International armed conflict classification was, and is, the correct and rightful classification for these extremist and indiscriminately violent detainees captured during the GWOT. Sweden/Syria, Can Armed Groups Issue Judgments? The principle of humane treatment in IHL requires that those who fall into the hands of the enemy be treated with respect for their dignity as human beings. The negligence exhibited by many of these national military contingents during these international security campaigns, in neither acting to protect the lives of non-combatant civilians targeted by hostile combatant forces, nor acting in defence of civilian property and places of worship and cultural heritage targeted for destruction by hostile combatant forces, in fact constitute failures to uphold and enforce the very laws of war now known collectively as the Law of Armed Conflict (LOAC). Humane treatment includes: (Military Persons Exempt From Attack, pg. In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile lethal force actions of Enemy forces towards the local civilian population. The Statemay hand the suspect over to another Stateor an international tribunal for trial. unlawful perpetrators of war crimes and excessive human suffering rather than victims these captured unlawful combatants had few rights or protections under the LOAC. In essence this means that, according to CIL, States acting as Detaining Powers must provide persons under their power with the most humane (human) treatment that each State is capable of providing, including adequate food and medical care, and that they should not submit those persons under their control to unnecessarily unpleasant treatment that States would not like their own military personnel or civilian citizens to undergo themselves if captured, interned or detained by another State or armed group. [21] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, ibid., p. 14. It also made the repatriation of captured belligerents a recommendation instead of mandatory. Modern CIL goes further than this, however, and contends that it is illegal to torture any person for any purpose or in any circumstances, or to subject any person to cruel or inhumane treatment for any purpose or in any circumstances, during any armed conflict (see in particular the 1987 UN Convention against Torture and the 2002 Rome Statute of the International Criminal Court ratified by many, but not all, nations). [26] Modified images taken from M.E. disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature, e.g. 100, April 24, 1863) was the military law that governed the wartime conduct of the Union Army by defining and describing command responsibility for war crimes and crimes against humanity; and the military responsibilities of the Union soldier fighting the American Civil War (1861-1865) against the Confederate States of America. Indeed, Pejic asserts that the GWOT is neither IAC nor NIAC in nature, arguing that it may in some situations be an international armed conflict, in other instances a non-international armed conflict, and in still other cases not an armed conflict in the legal sense at all.[37] As Pejic concludes: Every situation of organized armed violence arising from or in response to terrorism must be examined on a case-by-case basis. [34] Modified image taken from M. Petrou, The decline of al-Qaeda, Macleans, 9 September 2011, https://www.macleans.ca/news/world/the-decline-of-al-qaeda/, (accessed 1 May 2019). It also stated civilians may not be collectively deported or made to work on behalf of an occupying force without pay. Al Qaeda terrorists attack the United States of America: On 11 September 2001 four passenger commercial aircraft were hijacked by Al Qaeda terrorists, in a plot designed and enacted by the central Al Qaeda cell led by Osama bin Laden in Taliban-ruled Afghanistan. Another technique was waterboarding, a process of simulated drowning. The law is thereforequite simply your State's law. The [New Zealand Defence Force] Manual of Military Law 1929 includes in its section on the Laws of War observations to the effect that there can, in the nature of things, be no finality regarding the law and usages of war. regular wars. No doubt the procedure was tough, but medical experts assured the CIA that it did no lasting harm. In Rwanda in 1994 and Bosnia in 1995, UNAMIR and UNPROFOR national contingent forces failed in their preeminent mandated duty to act in a robust military fashion to protect the lives of thousands of non-combatant civilians, sheltering in UN safe areas under their command, from the hostile intent and hostile lethal force actions of Enemy forces towards the local civilian population. As a direct result of the CIAs use of the enhanced interrogation techniques on the terrorist detainees at Guantanamo, over the period of 5 years between 2001-2006, the United States is credited with having saved the lives of countless hundreds of innocent, non-combatant, American and foreign citizens from planned Al Qaeda terrorist attacks around the world. To suggest that our intelligence personnel violated the law by following the legal guidance they received is insulting and wrong. cit., p. 2; [Boumediene v. Bush, 2008] A. Shapiro, Supreme Court Backs Rights for Terrorist Detainees, National Public Radio NPR, 12 June 2008, https://www.npr.org/templates/story/story.php?storyId=91425261, (accessed 23 April 2019). The Swiss Government agreed to hold the Conventions in Geneva, and a few years later, a similar agreement to protect shipwrecked soldiers was produced. It was considered that this LOAC classification change would not only give more formal legal protection to the captured terrorists and extremist insurgents, but also automatically rule out any further use of enhanced interrogation techniques to extract actionable intelligence from the detainees no matter how effective or successful they were which advocates of the classification change deemed inhumane and a form of torture illegal under CIL (see endnote for a discussion on torture, and refer to American President George W. Bushs argument provided in endnote #30 above). None of us doubted in the early 1990s that, just as soon as he could, Saddam would resume the programs he had under way before the [Gulf] war to develop biological, chemical, and nuclear weapons. Required fields are marked *, You may use these HTML tags and attributes:
. The fact also remains that terrorists operating within conflict zones are, by intent and design, mass-murdering criminals, who conduct illegal activities using prohibited means and methods, and who, by their very nature and purpose, do not themselves respect or adhere to the rules prescribed in Common Article 3, and give no fundamentally humane treatment to either military or civilian combatants or non-combatants, either in the course of their fighting or upon capture when held in their power. LOAC continues to evolve as mankind struggles to advance the principles of humanity in warfare whilst maintaining the needs of international and national security.[25]. Humane treatment includes: (Military Persons Exempt From Attack, pg. 37,708,430 questions answered There were two that I felt went too far, even if they were legal. The principle of humane treatment requires that the wounded and sick, prisoners of war, civilians and other persons protected by IHL are treated humanely at all times. This Convention protects wounded and infirm soldiers and medical personnel who are not taking active part in hostility against a Party. 27-28). The CIA interrogation program saved lives. Based on what I read and my knowledge of Saddams behavior in the 1980s and early 1990s it seemed highly likely to me that he had resumed working on weapons of mass destruction, that the sanctions were largely ineffective, and that the man was a very dangerous megalomaniac. The circumstances of each will determine whether it legally and factually meets the qualifying conditions as an armed conflict (international or non-international). At the time, some were concerned we werent pushing hard enough. Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.. It renders the convicts or accused of such crimes to the jurisdiction of all signatory States, regardless of their nationality or territoriality of their crime. [28] Modified images taken from: N. Shachtman, Afghan Air War Hits 3-Year Low, WIRED, 16 January 2012, https://www.wired.com/2012/01/afghan-air-war/, (accessed 1 May 2019); Operations and missions: past and present, North Atlantic Treaty Organization (NATO),25 April 2019, https://www.nato.int/cps/en/natohq/topics_52060.htm, (accessed 1 May 2019); L. Eptako, Then and Now: What Replaced the Toppled Saddam Statue?, PBS Newshour, 26 August 2010, https://www.pbs.org/newshour/world/saddam-statue, (accessed 1 May 2019); and B. Al Qaeda terrorists (unlawful combatants under the LOAC) captured in Afghanistan.[34]. In IACs, the principle gives rise to a number of explicit rules, such as those prohibiting torture, rape and sexual violence and exposure of prisoners of war to public curiosity. USA, Al-Shimari v. CACI Premier Technology, Inc. Central African Republic, Report of the UN Independent Expert, July 2016, Iraq: Situation of Internally Displaced Persons, Syria, Report by UN Commission of Inquiry (March 2017), Israel/Palestine, Accountability for the Use of Lethal Force, UN/Colombia, Human Rights Committee Clarifications and Concluding Observations (2016), International Criminal Court, Trial Judgment in the Case of the Prosecutor V. Jean-Pierre Bemba Gombo, Eastern Ukraine, OHCHR Report on the Situation: November 2016 - February 2017, South Sudan, AU Commission of Inquiry on South Sudan, Treaties, States Parties and Commentaries, Medical personnel, facilities and transports, General Statements on International Humanitarian Law, Chronology of Cases and Documents Relating to Past and Contemporary Conflicts. The 1906 Convention replaced the First Geneva Convention of 1864. But years later, once the threat seemed less urgent and the political winds had shifted, many lawmakers became fierce critics. unlawful. At the time, some were concerned we werent pushing hard enough. In October 1863, delegates from 16 countries along with military medical personnel traveled to Geneva to discuss the terms of a wartime humanitarian agreement. Specifically, it required POWs to give only their names, ranks,and serial numbers to their captors. [15] Derbyshire, Section Four: When and to Whom Does LOAC Apply, p. 2, Section One: Introduction to LOAC and Historical Development, p. 3, and 149.335 Introduction to LOAC in Section One: Introduction to LOAC and Historical Development, p. 7, 149.335 Law of Armed Conflict, ibid. The first Convention was initiated by what is now theInternational Committee for the Red Cross and Red Crescent(ICRC). This question remains an extremely serious and crucial conundrum in the modern era of warfare and terrorism today. cit. The Conventions apply to all cases ofdeclared warbetween signatory nations. The circumstances of each will determine whether it legally and factually meets the qualifying conditions as an armed conflict (international or non-international). In 1977, Protocols I and II were added to the Conventions of 1949. Still is to this day. Our conclusion was that they wereGiven all of this information, and given that the CIA had made a judgement call based on this information, President Bush, in my opinion, would have been negligent. The lack of global consensus on these important definitions has meant that, while on the one hand most nations on the world stage absolutely oppose and condemn torture and inhumane treatment of any persons involved in an armed conflict, on the other hand, these nations hold diverse interpretations, understandings and positions on these terms and what they mean in reality and in practice during armed conflict. Indeed, the sanctity and power of the LOAC holds true universally and applies equally to all military service men and women operating in conflict theatres around the globe in multinational military operations past, present and future. But. In previous blogs I have presented case-studies of Multinational Operations (MNOs) in Rwanda, Bosnia and Kosovo, in which participating national forces bound by government-imposed national caveat constraints failed to use lethal force at the critical and necessary moments in order to fully uphold or pursue the primary security objectives of their security mission mandates. [2] Modified image taken from P. Gourevitch, After the Genocide, The New Yorker [Magazine], 18 December 1995, https://www.newyorker.com/magazine/1995/12/18/after-the-genocide, (accessed 14 September 2017). Adding to this confusion is the fact that this definition of torture provided above does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions (where the meaning of lawful sanctions remains vague and unclear) (Derbyshire, Section Ten: Internees, Detainees and Torture, 149.335 Law of Armed Conflict, op. In sum, Non-International armed conflict (NIAC) largely concerns intra-State conflict that is, armed conflict that occurs within the territory of a State. While the 1949 Geneva Conventions have been universally ratified, the Additional Protocols have not. Internal security emergencies within a State, i.e. I approved the use of the interrogation techniques. The 1991 gulf war was the first international conflict that Human Rights Watch examined for violations of the law of war and the first in which military lawyers helped pick targets. [27] M. De Long (Lt. Gen.) & N. Lukeman, A General Speaks Out [originally published as Inside CentCom: the unvarnished truth about the wars in Afghanistan and Iraq], Zenith Press, St. Paul (MN), 2007, p. 68. [28], Between 2001-2006, Al Qaeda terrorists and local/foreign extremist insurgents captured in the territories of Afghanistan or Iraq committing acts of terror or violence against either Allied coalition forces or the new national governments, their forces, or their civilian population, were classed by the United States (U.S.) as non-State and unlawful Enemy combatants of International armed conflicts between States under the LOAC (where unlawful Enemy combatant means persons not entitled to combatant immunity who have committed acts in violation of the laws and customs of war during an armed conflict).[29]. Where domestic law does not allow for the exercise of universal jurisdiction, a Statemust introduce the necessary domestic legislative provisions before it can do so, and must actually exercise the jurisdiction, unless it hands the suspect over to another country or international tribunal. (The Principles of the Law of War, pg. Common Article 3 functions like a mini-Convention within the larger GenevaConvention itself, and establishes fundamental rules from which no derogation is permitted, containing the essential rules of the Geneva Convention in a condensed format, and making them applicable to non-international conflicts. The Court rejected this argument andheld that consent exised since September 11, 2001, through an Authorization for Use of Military Forces (AUMF), a Congressional resolution which empowered the President to use all necessary and appropriate forces against any nations, organizations, or personsthat he determinedto have planned, authorized,committed, or aided in the September 11, 2001attacks. The Law of War requires humane treatment for military personnel who are out of combat (hors de combat) due to capture by enemy forces. After all, the State government regimes in Afghanistan and Iraq were indeed both clearly and successfully removed through warfare by a coalition of other States, and while the conflict evolved over time in both theatres to include multiple, non-State, regional insurgencies of extremist fighters waging war against both allied coalition forces and the new government apparatus of these States, the original coalition of States remained heavily involved in the prosecution of these wars towards the original goals of eliminating hostile Al Qaeda and other terrorist networks in these States and preventing any reestablishment of the terrorist networks in these States that would again present a direct threat to America and other freedom-loving, democratic nations around the world. 13, 20, 27; FM 27-10, para. Among those contingents theoretically permitted by their governments and Rules of Engagement (ROE) to actually conduct these riot control operations, moreover, a substantial number of these national contingents were ill-trained, ill-equipped and ill-prepared to actually conduct riot control in actuality. Indeed, the legal obligations and rights of CIL apply regardless of: (1) Whether or not a state of war is formally considered to exist; (2) Whether or not a State or individuals are participating parties or supporting parties to an armed conflict; and lastly, (3) Whether or not governments of the nations involved have ever ratified particular LOAC treaties. This agreement extended the protections described in the first Convention to shipwrecked soldiers and other naval forces, including special protections afforded to hospital ships. Additionally, the rights of interned persons were specifically enumerated, providing protections for those charged with crimes during wartime. All Rights Reserved. Hamdiarguedthat such detentionwas illegal under the Geneva Conventions, withoutexpress Congressional consent. Prisoners of war must at all times be humanely treated. He got much more than he bargained for, however, when he found himself a witness to the aftermath of the Battle of Solferino, a gory battle in the Second War of Italian Independence. Ratification grew steadily through the decades: 74 States ratified the Conventions during the 1950s, 48 States did so during the 1960s, 20 States signed on during the 1970s, and another 20 States did so during the 1980s. In 1906, the Swiss government arranged a conference of 35 states to review and update improvements to the First Geneva Convention. Nations party to the Convention may not use torture to extract information from POWs. The new techniques proved highly effective., Of the thousands of terrorists we captured in the years after 9/11, about a hundred were placed into the CIA program. Adding to these legal rights, Article 75(3) of API states, moreover, that Detaining Powers are obligated to release detainees only when the circumstances justifying the arrest, detention or internment have ceased. This is a principle supported by CIL which also allows that detainees may be held in detention against their will if there is a good reason to do so, and as long as reason requires (API Art 75(3) and ICRC Customary IHL Rule 99, in NZDF LOAC Manual, During the early 2000s the Bush Administration sincerely believed and asserted,with full support and confirmation from the Pentagon, the Department of Justice and the CIA, that the U.S. government, Click to share on Facebook (Opens in new window), Click to share on Twitter (Opens in new window), Click to share on Pinterest (Opens in new window), Click to email this to a friend (Opens in new window), Click to share on LinkedIn (Opens in new window), Click to share on Reddit (Opens in new window), Click to share on Tumblr (Opens in new window), Click to share on Pocket (Opens in new window), Click to share on Telegram (Opens in new window), Click to share on Skype (Opens in new window).
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