Former President George W. Bush explains the rationale of his decision to adopt the enhanced interrogation techniques in his presidential memoir of his term from 2000-2008, stating: At my direction, Department of Justice and CIA lawyers conducted a careful legal review. 3 of 8) All of the above 81-82 in Geneva Convention III, and pp. The Geneva Conventions of 1949 and their Additional Protocols What best describes the Law of War? (The Law of War, pg. 3 of 8 HISTORY reviews and updates its content regularly to ensure it is complete and accurate. This ruling meant that whereas formerly all captured terrorists and extremist insurgent detainees of the GWOT held by the U.S. had no legal rights and protections under the IAC Geneva Conventions, they were from that moment on guaranteed fundamentally humane treatment under the clear NIAC law of Common Article 3 in the 1949 Geneva Conventions (ratified by the U.S. whereas the Additional Protocols are not), which is also CIL. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, most notably the following treaties: (a) The 1907 Hague Conventions IV (along with its annex of Hague Regulations), VII and IX relating to the Laws and Customs of War on Land; (c) The four 1949 Geneva Conventions relating to International inter-State conflict (but also including Common Article 3 relating to Non-International intra-State conflict in all four conventions), which provide protections to . 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. The Protocol stated all people not taking up arms be treated humanely and there should never be an order by anyone in command for no survivors.. Save my name, email, and website in this browser for the next time I comment. In short, as terrorists or terror-using insurgents in conflict theatres i.e. terrorist attacks, do. 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. Subsequently a preventative pre-emptive war took place in Iraq against Saddam Husseins dictatorship during 2003, which: firstly, had been meeting with senior Al Qaeda leaders; secondly, was cooperating with and housing Al Qaeda members at a chemical and biological weapons-testing laboratory situated at an Iraqi base near the Iranian border (including the notorious Al Qaeda attack-planner, Abu Musab al-Zarqawi); and thirdly, was strongly suspected internationally of having stockpiles of illegal biological and chemical Weapons of Mass destruction (WMD),in addition to nuclear material from its nuclear development programme, that, given the regimes long and proven record of support for terrorism, it was feared Saddam might easily give or sell to Al Qaeda terrorists to enhance and further their attacks in America and around the world (see endnote). Perhaps the most important and pressing evolution of CIL in recent decades concerns the treatment of captured Al Qaeda/Islamist terrorists, and terror-using insurgents (e.g. Additional Protocol I to the Geneva Conventions of 1977 adds further to this understanding, outlining further in Article 1(4) that self-determination movements of a native population against another States colonial domination, alien occupation or racist regime (discriminating against and/or persecuting one or more ethnic races within the State) may also be considered an International armed conflict under International Law, in accordance with the principles enshrined in the UN Charter.[7]. Given that most armed conflicts today are non-international, applying Common Article 3 is of the utmost importance. They concluded that the enhanced interrogation program complied with the Constitution and all applicable laws, including those that ban torture. According to the American Red Cross, the new articles also added provisions to protect: Article 9 of the Convention specified the Red Cross has the right to assist the wounded and sick and provide humanitarian aid. Three were water-boarded. 13, 20, 27; FM 27-10, para. All cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. The Law of War requires humane treatment for military personnel who are out of combat (hors de combat) due to capture by enemy forces. no 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. Types vary greatly andinclude traditional civil wars or internal armed conflicts that spill over into other States, as well as internal conflicts in which third-party States or multinational forces intervene alongside the government. Any unlawful act or omission by the Detaining Power causing death or seriously endangering the health of a . To summarize, the law of armed conflict: is a branch of international law; But the choice between security and values was real. Indeed, from that moment onwards, waterboarding and many other of the more aggressive enhanced interrogation techniques were no longer sanctioned or used by the CIA program on detainees at Guantanamo. *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. I knew that an interrogation program this sensitive and controversial would one day become public. Namely: (1) The unimpeded killing of non-combatant civilians in all three international security operations; (2) The commission of genocide and crimes against humanity against thousands in Rwanda and Bosnia; and. They strengthen the protection of victims of international (Protocol I) and non-international (Protocol II) armed conflicts and place limits on the way wars are fought. Cornell Law School Legal Information Institute. 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. The severest of these interrogation tactics was supervised waterboarding a technique used on 3 of the highest ranking, most knowledgeable and most obstinate Al Qaeda terrorists in American custody (see endnote). [36] Pejic, Unlawful/Enemy Combatants: Interpretations and consequences, op. Geneva Convention - History 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 [23] Derbyshire, 149.335 Introduction to LOAC, in Section One: Introduction to LOAC and Historical Development, 149.335 Law of Armed Conflict, op. Torture has been defined in the Rome Statute as: The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions (Article 7(2)(e) available to view here: https://www.icc-cpi.int/nr/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english.pdf). In fact, it is the duty of any serviceman or servicewoman to disobey superior orders, if those orders are manifestly unlawful under LOAC (i.e. The amendments extended protections for those wounded or captured in battle as well as volunteer agencies and medical personnel tasked with treating, transporting and removing the wounded and killed. The Conventions apply to a signatory nation even if the opposing nation is not a signatory, but only if the opposing nation "accepts and applies the provisions" of the Conventions. [19] Common Article 3 to the Geneva Conventions 1949 (see pp. In 1949, after World War II, two new Conventions were added, and the Geneva Conventions entered into force on 21 October 1950. c. In accordance with DoDD 2311.01, all persons subject to this issuance will report The duty to obey the LOAC is so forceful that it demands obedience even to the extent of disobeying national superior orders that are perceived to be manifestly unlawful under the LOAC. 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. 'Common Article 3' - the article common to all four of the Geneva Conventions of 1949 which alone treats 'Non-International' armed conflict - requires that, in addition to humane treatment for all military personnel 'hors de combat' or taken 'Prisoner of War' in International armed conflicts, all persons not taking an active . 88 - 96, 266) Everyone is Entitled No Degrading or Humiliating Treatment Protected From Violence & Intimidation Shielded From Insults & Public Curiosity Given Respect for Their Persons & Honors No Reprisals Allowed Torture and Coercion (GPS, Art. The original Geneva Convention was adopted in 1864 to establish the red cross emblem signifying neutral status and protection of medical services and volunteers. In addition, children should be well cared for and educated, and the following is prohibited: In 2005, a Protocol was created to recognize the symbol of the red crystalin addition to the red cross, the red crescent and the red shield of Davidas universal emblems of identification and protection in armed conflicts. Article 12 stipulated the wounded and sick must not be murdered, tortured, exterminated or exposed to biological experiments. This way of thinking resulted in more humane treatment for those officially classified as prisoners of war. My most solemn responsibility as president was to protect the country. Trailer #12: SEAL Team Low-Impact (High-Risk) (2022, Series 6, Episode 1) [American SOF Forces, Burkina Faso/Mali]. [12] Customary International Humanitarian Law, The Magazine of the International Red Cross and Red Crescent Movement [Magazine], 2005, p. 2, http://www.redcross.int/EN/mag/magazine2005_2/24-25.htm (accessed 28 August 2008). Sorry, your blog cannot share posts by email. 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. One of the treaties created during the 1949 Convention, this defined "Prisoner of War," and accorded such prisoners proper and humane treatment as specified by the first Convention. 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). a. The Geneva Convention was a series of international diplomatic meetings that produced a number of agreements, in particular the Humanitarian Law of Armed Conflicts, a group of international laws for the humane treatment of wounded or captured military personnel, medical personnel and non-military civilians during war or armed conflicts. This is the original sense of applicability, which predates the 1949 version. [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. Not surprisingly, the disconnect and outright contradiction between the KFOR mission mandate and its key security objectives on the one hand, and the restrictive ROE of contributed KFOR national contingents on the other, had direct and serious consequences during the Kosovo Riots of 2004. The circumstances of each will determine whether it legally and factually meets the qualifying conditions as an armed conflict (international or non-international). 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]. It also laid out rules for the daily lives of prisoners and established the International Red Cross as the main neutral organization responsible for collecting and transmitting data about prisoners of war and the wounded or killed. In a clinical sense, any armed conflict that does not conform to the IAC definition provided in Common Article 2 of the Geneva Conventions or Article 1 of Additional Protocol I must ipso facto be regarded and treated as a NIAC armed conflict. I had asked the most senior legal officers in the U.S. government to review the interrogation methods, and they had assured me they did not constitute torture. 169-171). I had asked the most senior legal officers in the U.S. government to review the interrogation methods, and they had assured me they did not constitute torture. The new updates stated all prisoners must be treated with compassion and live in humane conditions. pp. Seven new ratifications since 2000 have brought the total number of States Party to 194, making the Geneva Conventions universally applicable. (2) The laws of war do not apply; the US military has a free hand. 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. Sweden/Syria, Can Armed Groups Issue Judgments? Finally, it discusses how occupiers are to treat an occupied populace. Germany signed the Convention of 1929, however, that didnt prevent them from carrying out horrific acts on and off the battlefield and within their military prison camps and civilian concentration camps during World War II. The Law of War requires humane treatment for military personnel who are out of combat (hors de combat) due to capture by enemy forces. Experts in the intelligence community told me that without the CIA program, there would have been another attack on the United States.. Afghanistan and Iraq: Two conflict theatres in the Global War on Terrorism (GWOT). It ensureshumane treatment without discriminationfounded on race, color, sex, religion or faith, birth or wealth, etc. The 1906 Convention replaced the First Geneva Convention of 1864. JKO Joint Staff Law of War (Abridged) I Hate CBT's (4) Civilian persons in time of war (Geneva Convention IV). The worldwide campaign against Al Qaeda and other global terrorist networks along with their State sponsors or protectors, which began in 2001 following the 9/11 terrorist attacks, and continues in various forms against diverse Islamist terrorist entities (including ISIS) and in multiple conflict theatres around the globe to the present day, was termed the Global War on Terrorism (GWOT). cit., p. 13. 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 . It also identified new protections and rights of civilian populations. In 1929, updates were made to further the civilized treatment of prisoners of war. International armed conflict is defined in Common Article 2 of the Geneva Conventions as: All cases of declared war, or of any other armed conflict, which may arise between two or more of the High Contracting Parties (States), even if the state of war is not recognised by one of them, All cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance. Adopted in 2005 to add another emblem, the "red crystal," to the list of emblems used to identify neutral humanitarian aide workers. Since there was no set treaty or law specifically outlining the obligations due to such detainees under the Geneva Conventions when captured by an opposing force, it appeared the problems arising from this new conflict exigency would be best guided by the customs of modern CIL notably, humane treatment consistent with the Geneva Conventions, but subject to military necessity, that of preventing additional, unlawful terrorist attacks against American citizens or those of its allies. HISTORY.com works with a wide range of writers and editors to create accurate and informative content. 35-36 in Geneva Convention I, pp. It specifically prohibits murder, mutilation. [12] The Additional Protocols, dealing expressly with the two categories of International (Additional Protocol I) and Non-International (Additional Protocol II) armed conflict, were written in 1977 in order to reflect this reality, and to express international concern that the victims of Non-International armed conflict likewise be afforded basic protections under the LOAC, especially given the great danger posed by armed groups to the lives of ordinary civilians in these high-intensity and highly-violent internal conflicts. 4 of 8) It does not justify prohibited actions (correct) It justifies the use of overwhelming force, but not wanton destruction (correct) Humanity is a principle of the Law of War that addresses the immunity of peaceful populations and civilian objects from attack.
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