Exclusive: On ‘Torture’ and the Geneva Conventions – A Match Made in Ignorance

by TOM ORDEMAN, JR. May 27, 2009
Last week, President Obama and former Vice President Cheney found themselves in a sort of unannounced, televised pseudo-debate on the topic of Guantanamo Bay, interrogation and detention, and their combined impact on national security. This follows the Democrat-controlled Senate's rejection of (and refusal to fund) the closure of the Guantanamo Bay detention facility – a major setback, given that the announcement of the camp's closure was President Obama's first official act upon taking office. Given that many of the major talking points on both sides of the fence revolve around the "Geneva Convention," a bit of perspective on its relationship with the Gitmo detention facility would be a welcome change.

Few are aware that there are actually four Geneva Conventions – and in fact, any referral to "Geneva Convention" in the singular form is likely to be an inadvertent admission that the speaker is not actually very familiar with the Conventions, or their history or background. The four Conventions cover the following topics: the Condition of the Wounded and Sick in the Armed Forces in the Field (Convention I); the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea (Convention II); the Treatment of Prisoners of War (Convention III); and the Protection of Civilian Persons in Time of War (Convention IV). Their combined framework provides for the lawful conduct of armed conflicts between nations and subsidiary forces, and for the treatment of casualties and prisoners of war once they are removed from combat. A derivative of the Hague Conventions of 1899 and 1907, the Geneva Conventions were drafted starting in the late 19th century, and their last major revisions (save for minor amendments) were completed in 1949. Unfortunately, few who demand a rigid application of the Geneva Conventions in the modern age are familiar with their requirements. Among its numerous requirements, the Third Geneva Convention dictates:

Uniforms of enemy armed forces captured by the Detaining Power should, if suitable for the climate, be made available to clothe prisoners of war. (Article 27)

Canteens shall be installed in all camps, where prisoners of war may procure foodstuffs, soap and tobacco and ordinary articles in daily use. The tariff shall never be in excess of local market prices. The profits made by camp canteens shall be used for the benefit of the prisoners; a special fund shall be created for this purpose. The prisoners' representative shall have the right to collaborate in the management of the canteen and of this fund. (Article 28)

Prisoners of war must be provided with mail service. Upon the outbreak of hostilities, and pending an arrangement on this matter with the Protecting Power, the Detaining Power may determine the maximum amount of money in cash or in any similar form, that prisoners may have in their possession. Any amount in excess, which was properly in their possession and which has been taken or withheld from them, shall be placed to their account, together with any monies deposited by them, and shall not be converted into any other currency without their consent. (Article 58)

The Detaining Power shall grant all prisoners of war a monthly advance of pay, the amount of which shall be fixed by conversion, into the currency of the said Power[.] (Article 60)

As little consensus as there may be between Americans on these issues, it seems reasonable to assume that most Americans would agree that the most dangerous al Qaeda and Taliban terrorists in American custody should not be wandering around an open detention facility, wearing their native dress, buying tobacco and other creature comforts from a DoD-provided canteen, doing so with monthly pay allowances afforded them from Federal tax income, while sending and receiving mail that could easily be used to pass or receive coded intelligence. The vernacular of the Geneva Conventions, particularly with respect to the definition of a Prisoner of War, is also important. Just as the detaining power is obligated to make such provisions as have been noted above, those detained may only enjoy "Prisoner of War" status if they have met the following conditions, among others:

They must be members of either a national army, or of a militia or volunteer corps.
They must be commanded by a person responsible for his subordinates.
They must have a fixed, distinctive sign recognizable at a distance.
They must carry arms openly.
They must conduct their operations in accordance with the laws and customs of war.

While Taliban personnel would arguably qualify under several of these conditions, al Qaeda terrorists essentially qualify under none of these. Many who argue for a strict implementation of the Geneva Conventions are ignorant of the aforementioned requirements for the detaining authority, and of these requirements for consideration as a legitimate combatant. Being ignorant of these things, most are also ignorant of the fact that one of the key motivations for the adoption of the Geneva Conventions was to discourage the type of irregular, stateless warfare practiced by the likes of al Qaeda and the Taliban. The international community adopted and refined the Geneva Conventions during the late 19th and early- to mid-20th centuries in order to confine nations to a previously agreed-upon system of warfare. By seeking to afford the same rights to both legitimate Prisoners of War and illegitimate combatants, those who advocate such policies are essentially undermining one of the very goals that spurred the drafting of the Conventions in the first place.

Another tidbit from the Third Geneva Convention that might serve to demonstrate its irrelevance to the situation at Guantanamo Bay: the aforementioned Article 60 dictates that sergeants and other non-commissioned officers in detention must receive the equivalent of 12 Swiss francs per month in pay. Given that most readers are unlikely to be immediately aware of current exchange rates, it should be noted that 12 Swiss francs currently garner a grand total of $11.06. The fact that the Geneva Conventions were even written at a time when the international currency was the Swiss franc betrays their age, and their philosophical distance from the state of modern politics and warfare.

And what of the actual conditions at the Gitmo detention facility? While few would condone any sort of irresponsible or inhumane treatment of detainees, it seems a bit ironic that Americans who, by and large, believe that American criminals are treated too well for infractions such as armed robbery, murder, and rape, would then be dissatisfied when individuals like Khalid Sheikh Mohammed and Abu Zubaydah – men who confess openly to planning and facilitating the murders of literally thousands of innocent American civilians – are treated like the terrorists they are. Far from being the nightmare that many human rights campaigners make it out to be, Miss Universe was recently quoted as saying that her trip to Guantanamo Bay was both "fun" and "relaxing" (BBC, Fox). Several years ago, a group even published the Gitmo Cook Book, an indication that the food served to the detainees was more than fit for human consumption. No one would argue that the detention facility is the equivalent of a resort. Unfortunately, many seem to forget that a detention facility is not supposed to be a resort. Indeed, the Geneva Conventions themselves dictate no such thing, even for legitimate combatants, which the detainees at Guantanamo Bay are not according to the conditions set forth in the very Conventions in question. A detention facility is meant to be a controlled, humane holding facility for hostile agents who carried arms against the detaining power, and the facility at Gitmo succeeds in fulfilling that requirement.

While Americans almost universally disapprove of torture, the majority of the debate during the course of the last several years – to include memoranda released recently by the Obama Administration – has focused on waterboarding. One must ask oneself an honest question: can something really be considered torture if Christopher Hitchens and Playboy's Mike Guy have volunteered to undergo the procedure? Given that these two, countless military professionals who have participated in the SERE course, and the terrorists themselves appear none the worse for wear, can this technique really be considered torture? The Geneva Conventions universally outlaw torture, and one of the topics covered in leadership and ethics courses required of prospective American military officers is the topic of torture, and its near-universal ineffectiveness in interrogations. Most would agree that this prohibition is a correct policy from both moral and practical standpoints. However, given the assertions of the efficacy of many aggressive interrogation techniques, it seems fair to acknowledge that there are a number of effective interrogation procedures that, while being harsh, do not cross the line into the realm of bona fide torture.

Nearly eight years after the establishment of the Gitmo detention facility, the question now exists of what to do with the remaining terrorists held there. Thus far, the track record for released detainees – those who were considered the least dangerous - is relatively poor. Below are just a few of the stories of detainees returning to the fight:

Guantanamo inmate 'Joins Taleban' (BBC, AP)
Yemen captures al Qaeda leader once held at Gitmo
Released detainees 'go back to terrorism'
Guantanamo ex-prisoner detained

Perhaps the most prominent story in recent memory is that of a Gitmo detainee who was released, only to become a Taliban operations chief (AP, Times). So, even if it were appropriate to take all cues from the Geneva Conventions in this case, how would they direct the powers that be? One example can be found in the remaining infrastructure of the Orkney Islands, north of Scotland, where more than a thousand Italian prisoners – who, one must keep in mind, complied with the aforementioned requirements to be recognized as legitimate prisoners of war – were detained until both England and Italy agreed that hostilities were over. Having been removed from the battlefields of North Africa, the prisoners were put to work building the Churchill Barriers that serve as causeways to this day, and restricted German submarines from attacking the British naval station at Scapa Flow during the course of the Second World War. As is the case at Gitmo, the Italians' religious sensibilities were respected by their British captors, and that respect survives today in the form of the Italian Chapel on the island of Lamb Holm. Furthermore, these Italian prisoners never received trials, military tribunal or otherwise, and upon their capture starting in 1942 the ultimate length of their detention was never established. This hardly serves as an example whereby prematurely releasing detainees was encouraged by a strict interpretation of the Geneva Conventions.

One would expect that if an objective and neutral third party (perhaps a time-traveling Swiss non-commissioned officer carrying a total month's pay of total of 12 francs in his pocket) were to question President Obama, Osama bin Laden, and Mohammed Omar, one of the few talking points upon which the three men would agree would be that the war continues – hostilities have not ceased, bitter disagreements have not been resolved, and neither side has exhausted the other's will or ability to continue fighting. The dividend of this is that the release of at least most of those detainees who have already been set free is questionable, and the release of the remaining detainees (who can be considered, almost by default, to be the most dangerous among those detained) would be completely inappropriate under the present circumstances. Assuming widespread agreement that these remaining detainees ought to be detained for the time being, and conceding for the sake of discussion that Guantanamo Bay is not a convenient or desirable location in which to hold them, one must ask the natural question: is there any location that is better than Guantanamo Bay? Or, is it reasonable to acknowledge that, of all the possible locations for keeping the most dangerous terrorists in the world, Gitmo is probably the least bad place to keep them?

The Geneva Conventions are an admirable component of the legacy of a bygone age of warfare, during which time the face of combat was forever changed by such inventions as the Maxim Gun, mustard gas, the airplane... Indeed, the ratification of the final changes to the Geneva Conventions took place in 1949, just a few short years after the beginning of the Nuclear Age and the corresponding advent of the Cold War. These developments combined with the Geneva Conventions themselves to usher in the evolution of warfare that the world has witnessed during the course of the last century. Unfortunately, for all of the lives that the Geneva Conventions may have saved over the course of the 20th and early 21st centuries, it is likely that the growth of non-state and sub-state belligerents is a direction consequence of their ratification and poor implementation.

For many reasons, the United States has a vested interest in maintaining moral superiority over those enemies who throw acid in the faces of girls for going to school, flog men for trimming their beards, or behead foreign aid workers for vaccinating children. The situation at Guantanamo Bay has been controversial from its very beginning, and may very well be as precarious and detrimental as many claim. However, many of those who use the phrase "Geneva Conventions" as a talking point do the United States and the Geneva Conventions themselves a disservice by proclaiming that the Conventions should be rigidly implemented for the benefit of the very terrorists whom the Conventions were enacted to eliminate. America should not torture. America should respect international laws. America should respect human rights. Perhaps – perhaps – America should even close the detention facility at Guantanamo Bay. However, America should also think twice before looking to the Geneva Conventions as a model for how to treat terrorist detainees at Guantanamo Bay.
FamilySecurityMatters.org Contributing Editor Tom Ordeman, Jr. is a technical writer for a major defense contractor in Hampton Roads, Virginia. Feedback: editorialdirector@familysecuritymatters.org.

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