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The Logical Nexus Between the Decision to Deny Application of The Case Western Reserve Journal of International Law Volume 36 | Issue 2 2004 The Logical Nexus between the Decision to Deny Application of the Third Geneva Convention to the Taliban and al Qaeda and the Mistreatment of Prisoners in Abu Ghraib Evan J. Wallach Follow this and additional works at: https://scholarlycommons.law.case.edu/jil Part of the International Law Commons Recommended Citation Evan J. Wallach, The Logical Nexus between the Decision to Deny Application of the Third Geneva Convention to the Taliban and al Qaeda and the Mistreatment of Prisoners in Abu Ghraib, 36 Case W. Res. J. Int'l L. 541 (2004) Available at: https://scholarlycommons.law.case.edu/jil/vol36/iss2/21 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Journal of International Law by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE LOGICAL NEXUS BETWEEN THE DECISION TO DENY APPLICATION OF THE THIRD GENEVA CONVENTION TO THE TALmBAN AND AL QAEDA AND THE MISTREATMENT OF PRISONERS IN ABU GHRAIB* Evan J. Wallacht Our values are non-negotiablefor members of our profession. They are what a professionalmilitary force represents to the world.' Presented at the War Crimes Research Symposium: "Terrorism on Trial" at Case Western Reserve University School of Law, sponsored by the Frederick K. Cox International Law Center, on Friday, October 8, 2004. t Judge, United States Court of International Trade. Adjunct Professor, Law of War, Brooklyn Law School, George Mason Law School, New York Law School. Visiting Professor, Law of War, University of Minster. Webmaster ILOWA Home Page, http://www.lawofwar.org. J.D. Berkeley, 1976, LLB (international law) Cambridge, 1981. The author's interest in the issues here discussed springs, in part, from his service as an Attorney/Advisor in the International Affairs Division of the Office of TJAG during the Persian Gulf War working on, inter alia, prisoner of war and war crimes issues. This article is respectfully dedicated to my mother, Sara Florence Rothaus Wallach. In answer to Cain's question, Genesis 4:9, so many times she told us, "You are your brother's keeper." The author, as a Judge Advocate in the Nevada National Guard from 1989 through 1995, used those words in briefing the 72nd Military Police Company on the laws of war. About the 72nd Military Police Company, the Schlesinger Committee Report noted: When Abu Ghraib opened, the first MP unit was the 72nd MP Company, based in Henderson, Nevada. Known as "the Nevada Company", it has been described by many involved in investigations concerning Abu Ghraib as a very strong unit that kept tight rein on operational procedures at the facility. The company called into question the interrogation practices of the MI Brigade regarding nakedness of detainees. The 72nd MP Company voiced and then filed written objections to these practices. HON. JAMES R. SCHLESINGER, U.S. DEP'T OF DEFENSE, FINAL REPORT OF THE INDEPENDENT PANEL To REvIEw DOD DETENTION OPERATIONS 74 (Aug. 2004). To those citizen soldiers this article is also dedicated, with pride and respect. The author also wishes to thank Charles Gittings for his excellent web site, Project to Enforce the Geneva Convention (PEGC), devoted to enforcement of the Geneva Conventions. http://pegc.no-ip.info/. His extensive efforts made this research much easier. The views here expressed represent those only of the author and not of any person with whom, or entity with which, he is affiliated. 1LTG ANTHONY R. JONES, U.S. DEP'T OF THE ARMY, AR 15-6 INVESTIGATION OF THE ABU GHRAm PRISON AND 205TH MILITARY INTELLIGENCE BRIGADE 23 (Aug. 23, 2004), http://www.globalsecurity.org/intell/ library/reports/2004/intell-abu-ghraibarl5-6.pdf (last visited March 19, 2005). CASE W. RES. J. INT'L L. [Vol. 36:541 Those who do battle with monsters must take care that they do not thereby become a monster. Always remember that when you gaze into the abyss, the abyss gazes back into you. 2 L Introduction Revelations of sexual indecencies committed by United States military personnel against Iraqi prisoners in Abu Ghraib prison,3 and allegations of other misconduct, followed by repeated leaks of documents related to the decision making process regarding the status of captured enemy combatants, forced the release of at least some additional government documents ("the government memos") relating to the issue. Taken as a whole, these documents, other known facts, and applicable law demonstrate that: 1) the legal, and perhaps, the factual basis for the classification of many Afghan prisoners outside the Third Geneva Convention appears flawed; 2) the treatment of persons entitled to the rights of prisoners of war in ways forbidden by the Third Geneva Convention appears to be neither inadvertent nor incidental; and 3) the application of those coercive treatment methods to the Abu Ghraib prisoners appears to be related to the sexual misconduct by prison guards. This article examines the international law aspects of the determination by the United States government that Guantanamo detainees - and indeed all members of the Taliban, including those held and questioned in Afghanistan without transportation to Guantanamo - are unprotected by the Third Geneva Convention of 1949 ("GC3") 4. The government memos and other information released in, for example, press reports and Red Cross reports5 demonstrate that the government based its decision either on a finding that the Taliban was not the de facto government of Afghanistan and therefore its military forces were unprotected by GC3, or on a finding that the Taliban was the de facto government but its forces were unprotected for failure to meet certain purported requirements of Article 4(2) of GC3. The article discusses the requirements of Article 5 of GC3 2 FRIEDRICH NIETZSCHE, JENSEITS VON GUT AND BOSE, Part IV, at para. 146 (1964) (quotation translated by the author). 3 MG ANTONIO TAGUBA, U.S. DEP'T OF THE ARMY, ARTICLE 15-6 INVESTIGATION OF THE 800TH MILITARY POLICE BRIGADE, Finding of Fact Regarding Part One of the Investigation, at para. 5, available at http://www.globalsecurity.org/intell/library/reports/2004/800-mp- bde.htm (last visited March 19, 2005) [hereinafter Taguba Report] (characterizing them as "numerous incidents of sadistic, blatant, and wanton criminal abuses ...inflicted on several detainees"); see also id. at Conclusion, para. 1 (concluding that they constituted "grave breaches of international law") 4 Third Geneva Convention of 1949 Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 [hereinafter the Third Geneva Convention]. 5 See discussion infra. at VI.A.2. 2004] THE LOGICAL NEXUS which provides that should any doubt exist as to the status of a captured person, a presumption of POW status continues until a decision to the contrary has been made by a competent tribunal. This article examines government memos and other recent information and demonstrates that reasonable doubt does exist as to at least Taliban6 detainees' status, and that because they have not, to date, been screened by a competent tribunal, they continue to be entitled to treatment as POWs. The article also examines the interrogation methods used to question those detainees and concludes that: 1) as to protected persons, the methods constitute a breach - in some instances a grave one - of the Third Geneva Convention and 2) the determination that POW status did not apply appears to have been driven by a desire to use those interrogation methods to obtain information from battlefield detainees in a manner not permitted by GC3, and then to admit that information in trial proceedings using procedural and evidentiary rules forbidden by GC3. Finally, the article analyzes the development of those interrogation methods, their migration to Iraq, and their application to prisoners at Abu Ghraib. It determines that the sexual misconduct by the Abu Ghraib prison guards, while not necessarily ordered or directed by higher authority, was an evolution reasonably foreseeable from the violations of GC3 already in place. Finally, the article concludes that many of the extraordinary interrogation methods, as applied, may constitute breaches of both domestic and international law, depending on the facts of each detainee's case. II. Background Following the September 11, 2001 attacks on the World Trade center and the Pentagon, the President of the United States immediately characterized those strikes as "an act of war.",7 The United States took swift military action against the perpetrators; members of al Qaeda, an international terrorist organization. President Bush demanded that Afghanistan's ruling party, the Taliban, turn members of al Qaeda over to 6 Al Qaeda detainees present a different question. Their only potential claim to protected status rests on whether they were, in fact, acting as part of the Taliban when captured. The issue, depending on individualized facts such as the place, time and manner of capture, might or might not present an issue for resolution before a competent tribunal. This article does not examine other arguments which an al Qaeda detainee, who is not a prisoner of war, might assert regarding the legality of interrogation techniques. For examples of such arguments, see, e.g., U.N. Convention Against Torture and Other Cruel, and Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85, available at http://www.unhchr.ch/ html/menu3lb/h_cat39.htm (last visited Mar. 19, 2005) [hereinafter Torture Convention]. 7 Bush Calls Attacks 'Acts of War', BBC NEWS, Sept. 12, 2001, at http://news.bbc.co.uk /hi/english/ world/americas/newsid_1537000/1537534.stm (last visited Mar.
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