U.S. criticized on Geneva accords

Humane rules exclude Iraqi `security internees'

Crisis In Iraq

May 17, 2004|By John Riley | John Riley,NEWSDAY

NEW YORK -- After the Abu Ghraib prison abuse scandal, members of Congress and human rights groups are suggesting that the Bush administration's cavalier attitude toward the Geneva Conventions and other international standards is at the root of the problem.

"What is the purpose of putting a bag over someone's head for 72 hours? Shackling him in an excruciating position?" said Tom Malinowski of Human Rights Watch. "The only purpose is to create a degree of pain and humiliation. That's not allowed. The Geneva Conventions don't say you can inflict pain up to a certain degree. They say you can't do it."

Defense Secretary Donald H. Rumsfeld and his aides, however, insist that the abuses at Abu Ghraib were the acts of a few poorly commanded soldiers. The U.S. commander in Iraq has banned practices such as stress positions and food management, but the Pentagon insists the techniques were legal.

The disagreements, experts say, reflect in part the complexities of the Geneva Conventions -- and in part the way the Bush administration has decided to apply them after the Sept. 11 attacks. The conventions, adopted in 1949, set out rules governing the humane treatment of prisoners of war and civilians by warring states. The United States, Iraq and Afghanistan signed them, and the United States has acknowledged that they apply to the conflicts in both countries.

In Afghanistan, however, President Bush took the position that while the accords applied, no one the United States is fighting is entitled to Geneva protection as a prisoner of war because al-Qaida members are not connected to a state that is party to the treaties, and Taliban fighters do not have the military organizational structure required for protection.

The United States has never spelled out what techniques are permitted, but acknowledged at least three homicide investigations of detainee deaths in Afghanistan. To critics, it set a dangerous precedent for Iraq.

"They started down this path of minimizing the [accords] and got into this unprecedented area where there's no guidance of law," said Miles Fischer, head of the New York City bar's Military Affairs and Justice Committee.

As an occupying power in Iraq, the accords require the United States to honor Article 31, which states, "No physical or moral coercion shall be exercised against protected persons, in particular to obtain information."

Pentagon officials, however, point to Article 5 of Convention IV, which says that those "definitely suspected of or engaged in activities hostile to the security of the State" will not be able to claim Geneva rights that "would be prejudicial to the security of such State."

A senior military official, in a background briefing Friday, said most in custody in Iraq are "security internees," and argued that under Geneva's general standard, interrogators had flexibility.

"You've got to maintain the minimums of food and water and shelter and safety and so forth," he said. "But, `If you don't cooperate with me, I'm not going to give you as much as this other guy has who did.' Perfectly permissible."

Some experts agree. Scott Silliman, a Duke University expert on the law of war, says the baseline -- grossly violated in the Abu Ghraib scandal -- is another Geneva article banning degrading and humiliating treatment, but beyond that, it's a matter of line-drawing.

Critics, however, point to a Red Cross report that said as many as 80 percent of the Iraq detainees have been innocent civilians. And some believe that last fall, when the commander at Guantanamo visited Abu Ghraib to recommend improvements in intelligence gathering, his visit led to the adoption of rules created for a prison where Geneva doesn't apply to a place where it does.

"It [Abu Ghraib] got `Gitmoized,'" Fischer says, referring to Guantanamo Bay. " ... I think they may have forgotten that it's an occupation."

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