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earlier burfling | later burfling

The Geneva Conventions and Abu Ghraib


A recent entry in the remarkably erudite Respectful of Otters blog (helpfully syndicated on LJ as respect_otters) castigated Senator James Inhofe (R-OK) for these remarks at Tuesday's Senate Armed Services Committee hearing:
"I'm probably not the only one up at this table that is more outraged by the outrage than we are by the treatment," the Oklahoma Republican said at a U.S. Senate hearing probing the scandal.
"These prisoners, you know they're not there for traffic violations," Inhofe said. "If they're in cellblock 1-A or 1-B, these prisoners, they're murderers, they're terrorists, they're insurgents. Many of them probably have American blood on their hands and here we're so concerned about the treatment of those individuals."

Respectful of Otters stated that the inmates at Abu Ghraib were prisoners of war, presumably because Donald Rumsfeld had acknowledged that they are entitled to Geneva Convention protections. I fully agree that the Abu Ghraib prisoners deserved Geneva Convention protections, regardless of guilt or innocence.

I do, alas, take exception to the idea that all the Abu Ghraib detainees were "prisoners of war". One of General Taguba's findings was that "due to lack of adequate Iraqi facilities, Iraqi criminals (generally Iraqi-on-Iraqi crimes) are detained with security internees (generally Iraqi-on-Coalition offenses) and EPWs in the same facilities, though segregated in different cells/compounds". I haven't found anything online that authoritatively states what type of detainees were in the 1-A and 1-B cellblocks - criminals, security internees or prisoners of war - so I won't speculate, and as I'll show later it doesn't matter.

There are four Geneva Conventions:

The US ratified all four conventions - albeit with two reservations, see below. There are also two "additional protocols":

The US is not a signatory to the latter two protocols, which attempt to extend the Geneva Convention protections to various forms of armed rebellion.

As noted above, the United States ratified the four Geneva Conventions, but did so "with reservations":

Declaration made upon ratification:

"The United States in ratifying the Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field does so with the reservation that irrespective of any provision or provisions in said convention to the contrary, nothing contained therein shall make unlawful, or obligate the United States of America to make unlawful, any use or right of use within the United States of America and its territories and possessions of the Red Cross emblem, sign, insignia, or words as was lawful by reason of domestic law and a use begun prior to January 5, 1905, provided such use by pre-1905 users does not extend to the placing of the Red Cross emblem, sign, or insignia upon aircraft, vessels, vehicles, buildings or other structures, or upon the ground."
"Rejecting the reservations which States have made with respect to the Geneva Convention for the amelioration of the condition of the wounded and sick in armed forces in the field, the United States accepts treaty relations with all parties to that Convention, except as to the changes proposed by such reservations."
"Rejecting the reservations which States have made with respect to the Geneva Convention for the amelioration of the condition of wounded, sick and shipwrecked members of armed forces at sea, the United States accepts treaty relations with all parties to that Convention, except as to the changes proposed by such reservations."
"Rejecting the reservations which States have made with respect to the Geneva Convention relative to the treatment of prisoners of war, the United States accepts treaty relations with all parties to that Convention, except as to the changes proposed by such reservations."
"The United States reserves the right to impose the death penalty in accordance with the provisions of Article 68, paragraph 2, without regard to whether the offenses referred to therein are punishable by death under the law of the occupied territory at the time the occupation begins" (Reservation formulated by the Representative of the United States of America at the time of signature.)
"Rejecting the reservations - other than to Article 68, paragraph 2 - which States have made with respect to the Geneva Convention relative to the protection of civilian persons in time of war, the United States accepts treaty relations with all parties to that Convention, except as to the changes proposed by such reservations."

SOURCE: UNTS, Vol.213, 1955, pp.379-384.

(Full text at http://www.icrc.org/ihl.nsf/db8c9c8d3ba9d16f41256739003e6371/d6b53f5b5d14f35ac1256402003f9920?OpenDocument)

Translated out of gibberish legalese into English, all this boils down to the US accepting all the restrictions of the Geneva Conventions except two:

  1. The US specifically reserved the right not to make illegal certain pre-1905 uses of the Red Cross emblem

  2. The US specifically reserved the right to impose the death penalty in places where the pre-occupation law made it illegal.


Everything else in the four Geneva Conventions is binding upon the United States. If Senator Inhofe is correct and the abused detainees were in fact civilians suspected of attacks on American forces, they are still entitled to the protections of the Fourth Geneva Convention, which explicitly prohibits torturing prisoners. They would also be entitled to Fourth Geneva Convention protections against abuse if they were suspected of Iraqi-on-Iraqi crimes. Were they actual prisoners of war, they would be entitled to Third Geneva Convention protections - the same protections that the North Vietnamese denied to Senator McCain.

It does not matter, then, which of the Geneva Conventions applied to the abused detainees of Abu Ghraib. It does not matter what they were being held for. The United States of America has solemnly declared that it will abide by the Geneva Conventions; torturing the inmates at Abu Ghraib violated those conventions. Senator Inhofe can rant and rail all he wishes; the facts haven't changed.