Why the US is in breach of the Geneva Convention

Google orders the pages it pulls from the Internet for you to view by the number of times it is linked to. There was a time (in 2002, or earlier) where googling for “Geneva Convention” got me a set of pages I had to search through to find this page, but not any more: these days, four and a half years since the first prisoners were sent to Guantanamo Bay, google Geneva Convention (no quotes, even) and the Geneva Convention relative to the Treatment of Prisoners of War comes right to the top of the first googlepage.

I first read the text of this convention back in December 2001, or whenever the prison camp in Guantanamo Bay had been announced, with much relish about how uncomfortable it was going to be (I assume the Bush administration then were playing to their base: I know I got many Americans online saying that this was nothing more than these scum deserved). Later, as Red Cross and other international protests came in, official public talk about the Guantanamo Bay prison camp changed, and made it sound more comfortable.

It’s hard to believe now – now that we know that many of the people sent to Guantanamo Bay were simply sold to the Americans for bounties, and many were turned in for a grudge – but at the time, I believed that when the US said they were sending only “the worst of the worst”, the truly dangerous, to their prison camp in Cuba, they were probably telling the truth. In December 2001, we really knew so little about the Bush administration, and I honestly did not think that they were outright lying about this, as we know now they were.

I certainly believed – until the facts started filtering out – that all of them would have been taken “on the battlefield” – that is, by US soldiers, with reasonable surety that all of them had been taking part in the hostilities. As we know now, in fact any foreigner in Afghanistan could be said to be “al-Qaeda”, and any Afghan man could be said to be a “Taliban fighter” – and the Americans who were accepting prisoners turned in by any warlord with the sense to talk the right anti-Taliban stuff wouldn’t bother to check.

I can’t remember exactly when the truth sank in. Was it when the Americans kidnapped six people from Bosnia? Or when it turned out Moazzam Begg had been kidnapped from the house where he and his family were staying in Pakistan, by the Pakistani police? It was fairly early on in 2002, anyway, that it became clear that some at least of the prisoners were not “taken on the battlefield”, and that evidence that they were terrorists or Taliban was shaky.

But it was clear from the first read-through of the Geneva Convention that the US was in breach of it, and on a fairly basic issue: the prisoners had not had their status established by a competent tribunal. At the time – December 2001 – I did assume that, if they were “the worst of the worst”, that the US would most likely muster the competent tribunals in Guantanamo Bay. But by January or February 2002, it seemed clear that the US had no immediate plans to do so.

Article 4 of the Geneva Convention specifies who may be regarded a prisoner of war. It does so in some detail. Article 5 reads, in its entirety:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

The US has claimed (still claims) that they doubt that their prisoners in Guantanamo Bay are covered by Article 4. Where the US is in breach of the Geneva Convention, is that at no time did they determine the status of those prisoners by a competent tribunal before removing their rights under the Geneva Convention relative to the Treatment of Prisoners of War. But that’s what the Geneva Convention says they must do, plain as print.

When I first pointed this out – over five and a half years ago – I got a succession of protests from Americans (and others, but mostly Americans) that their country couldn’t possibly be in breach of the Geneva Convention. The protests were originally quite varied, but have in time settled down to one straightforward argument:

Article 5 only says “should any doubt arise”. It doesn’t say what should happen if the detaining power is certain that the prisoners don’t belong under Article 4.

Remarkably, that argument has stayed consistent over the five years during which we have all seen what happens if the detaining power is so certain of its ability to decide, without doubt or justice, that a prisoner doesn’t deserve the protection of the Geneva Convention: the number of prisoners who have had to be released because there was no evidence (mostly the citizens of countries allied to the US), and the number who ought to be released but aren’t because it’s too embarrassing for the US government to admit it has no evidence (mostly the citizens of countries who have no power to put pressure on the US to try them or release them) has risen every year.

I wrote this post on 10th September 2006 and posted it on GJ: I’ve written other posts on this issue, but I think this one is the most recent and the most succinct. Below the fold, my inspiration for writing it at the time – which turned out to be mistaken – was a post by Andy Olmsted, which I’d read and misunderstood pre-coffee, then re-read and understood post-coffee. I wanted to take this opportunity to say that Andy Olmsted was a fine person, and our loss is immeasurable.

One reason why I’m writing this entry now: Andrew at Obsidian Wings just wrote an article justifying the ongoing detention of prisoners on a “maybe” basis (Andrew is a US soldier, and I think hasn’t quite thought through the long-term consequences of asserting that it’s quite all right for one country to decide to detain nationals of another country for as long as it likes on little or no evidence), and I recently got into a lengthy argument with Aunursa at Slacktivist on the same old subject (I don’t know for sure, but my guess is that Aunursa is American, and just flat unwilling ever to believe that the US could be in breach of the Geneva Conventions).

Update (post coffee, and with considerable embarrassment): having read Andrew’s post again, this time post-coffee (and two Buffy episodes, which are the skiffy-fans best caffeine enhancer) I see that Andrew is, in fact, arguing that the US should do the just thing and release all prisoners except where there is definite evidence that they are terrorists. Oh well. Time spent explaining why Article 5 matters is never wasted, and I’m pleased that I was wrong in my initial assessment of what Andrew was saying. If embarrassed.