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The Geneva Conventions in Modern Warfare: a Contemporary THE GENEVA CONVENTIONS IN MODERN WARFARE: A CONTEMPORARY ANALYSIS OF CONFLICT CLASSIFICATION, COMBATANT STATUS, AND DETAINEE TREATMENT IN THE WAR ON TERROR THESIS Presented to the Graduate Council of Texas State University-San Marcos In Partial Fulfillment Of the Requirements For the Degree Master of ARTS by Patrick A. Hardwick, B.A. San Marcos, Texas August 2012 THE GENEVA CONVENTIONS IN MODERN WARFARE: A CONTEMPORARY ANALYSIS OF CONFLICT CLASSIFICATION, COMBATANT STATUS, AND DETAINEE TREATMENT IN THE WAR ON TERROR Committee Members Approved: __________________________ Robert F. Gorman, Chair __________________________ Edward Mihalkanin __________________________ William Ruger Approved: __________________________ J. Michael Willoughby Dean of the Graduate College COPYRIGHT by Patrick Adam Hardwick 2012 FAIR USE AND AUTHOR’S PERMISSION STATEMENT FAIR USE This work is protected by the Copyright Laws of the United States (Public Law 94-553, section 107). Consistent with fair use as defined in the Copyright Laws, brief quotations from this material are allowed with proper acknowledgement. Use of this material for financial gain without the author’s express written permission is not allowed. Duplication Permission As the copyright holder of this work I, Patrick A. Hardwick, authorize duplication of this work, in whole or in part, for educational or scholarly purposes only. ACKNOWLEDGEMENTS First and foremost I would like to thank my parents, Don and Alice Hardwick, for their unwavering love and support. The impassioned drive of my parents to provide educational opportunities and moral strength throughout the course of my studies has been truly inspirational. Without a doubt, my ventures into academia as a graduate student, as well as an undergraduate student, were made possible only through their desire and willingness to help me attain these goals. I am forever grateful for their devotion to education and their selfless commitment that has enabled me to pursue my academic career. This thesis would not have been possible without their confidence, encouragement, and personal sacrifice. Thank you so much. I would also like to express my sincerest gratitude to the members of my thesis committee, Dr. Robert Gorman, Dr. Edward Mihalkanin, and Dr. William Ruger. Throughout my coursework, each professor has contributed to, challenged, and positively impacted my expanding interests in this area of study. Indeed, the expertise of my committee members within their respective fields inspired me to undertake the topic of this thesis. The inspiration, knowledge, and professionalism of my committee members remained unequivocal throughout this lengthy process. It has been a privilege to have learned from and worked with these esteemed professors, and it has been my honor to have Dr. Gorman, Dr. Mihalkanin, and Dr. Ruger oversee and guide this project. v Finally, I would like to extend a special thanks to my colleague and friend, Robert Fraser. Your input and support have been sincerely appreciated from beginning to end. This manuscript was submitted on May 10, 2012. vi TABLE OF CONTENTS Page ACKNOWLEDGEMENTS .................................................................................................v INTRODUCTION ...............................................................................................................1 CHAPTER 1. CONFLICT CLASSIFICATION...............................................................................9 Conflict classification under Geneva Convention III- Common Article 2 ............10 Conflict classification under Geneva Convention III- Common Article 3 ............12 Conflict classification of the War on Terror by the United States .........................15 Inapplicability of conflict classification towards Al Qaeda ...................................18 Inapplicability of conflict classification towards the Taliban ................................19 Afghanistan as a “failed state” and conflict classification .....................................21 Option to suspend U.S. treaty obligations towards Afghanistan ...........................25 Objections to “failed state” status ..........................................................................27 Analysis of conflict classification in the War on Terror ........................................29 Recommendations ..................................................................................................32 2. COMBATANT STATUS ........................................................................................36 Combatant status under “Geneva Convention III Relative to the Treatment of POWs” ...................................................................................................................37 Varying definitions of combatant in the War on Terror ........................................39 U.S. positions on combatant status in the War on Terror ......................................43 Detaining lawful and unlawful combatants under Geneva III ...............................44 Al Qaeda and the Taliban as unlawful combatants ................................................47 The Taliban as unlawful combatants .....................................................................47 Al Qaeda as unlawful combatants..........................................................................51 Afghanistan as a failed state and combatant status ................................................52 Legal incentive to deny prisoner of war status ......................................................55 U.S. obligations under Geneva III- Article 5 .........................................................58 Dissent regarding combatant status determination – Objections of Secretary Powell ....................................................................................................................61 Dissent regarding combatant status determination – Objections of William H. Taft, U.S. Department of State...............................................................................65 Recommendations ..................................................................................................68 Acknowledgement of the Additional Protocols of 1977........................................70 vii Additional Protocol I..................................................................................72 Additional Protocol II ................................................................................75 Recommendations ......................................................................................75 3. DETAINEE TREATMENT.....................................................................................77 U.S. definitions of detainees and combatants relative to POW treatment .............77 Protections afforded under Geneva Convention III ...............................................80 Humane treatment ......................................................................................81 Questioning of prisoners ............................................................................82 Clothing......................................................................................................82 Complaints and requests ............................................................................83 Duration of punishments ............................................................................83 Confinement safeguards.............................................................................84 Legal proceedings ......................................................................................84 Death of POWs ..........................................................................................85 State responsibilities and grave breaches ...................................................86 The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984) .........................................................88 Torture and cruel, inhuman, or degrading treatment under U.S. law ....................91 The War Crimes Act of 1996 .................................................................................96 The Detainee Treatment Act of 2005.....................................................................97 The Military Commissions Act of 2006 ..............................................................100 Detainee treatment in the War on Terror .............................................................102 Requested interrogation methods, Guantanamo Bay, Cuba ................................103 Geneva III and Category I, II, and III interrogation techniques ..........................105 Examination of Geneva Convention III at Abu Ghraib: United States Department of the Army, Article 15-6 Investigation of the 800th MP Brigade ...109 Findings....................................................................................................110 The Geneva Conventions within the Taguba Report ...............................111 Recommendations ................................................................................................114 4. ANALYSIS AND DISCUSSION..........................................................................117 Counterclaim – Geneva III needs no revision......................................................117 The Geneva Conventions and technology: a forward-looking analysis ..............119 Conclusion ...........................................................................................................131 BIBLIOGRAPHY
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