Developments in US policy and legislation towards detainees: the ICRC position

 Q: What is the ICRC reaction to the recent policy and legal changes that have been taken in the US relating to the persons captured in the "war against terrorism"?  

    

The US Government has recently taken a series of noteworthy decisions regarding the detention, treatment and trial of persons in its custody. They include: the publication of a Department of Defense directive on detention and of the Army field manual on interrogation, the disclosure of the CIA detention programme, as well as the adoption of the Military Commissions Act of 2006. The ICRC is carefully examining these developments and is in a dialogue with the US Government regarding the legal and practical impact they could have.

Let's remember that until September 2006, the US Government said that it was treating its detainees humanely, " consistent with the principles " of international humanitarian law. Since the Supreme Court ruling in Hamdan of June 2006, the US government has recognized that Article 3 common to the Geneva Conventions is the minimum legal standard applicable to persons detained in the fight against terrorism.

In recent doctrine, the Department of Defense has acknowledged that common Article 3 is the legally binding minimum standard for detainees in its custody. This i s a welcome development.

 Q: What is the ICRC's first reading of the "Military Commissions Act of 2006"?  

    

The Military Commissions Act of 2006 is a complex law that addresses a wide range of issues. Some of them are a matter of domestic law, while others involve interpretations of international law, including international humanitarian law.

Our preliminary reading of the new legislation raises certain concerns and questions. The very broad definition of who is an " unlawful enemy combatant " and the fact that there is not an explicit prohibition on the admission of evidence attained by coercion are examples.

We are similarly concerned about the way in which the Act has created two tiers of prohibitions out of those listed in common Article 3. The Act provides a list of violations it calls " grave breaches " of common Article 3 broader than the text of the Article itself (rape, sexual assault, biological experiments and intentionally causing serious bodily injury have been added) , which is noteworthy.

At the same time, it omits certain violations from the list of acts that are war crimes under US domestic law. These include the prohibition of outrages upon personal dignity, in particular humiliating and degrading treatment, and the prohibition of the denial of the right to a fair trial, which is a basic protection provided for in international law. This distinction between the different violations disrupts the integrity of common Article 3.

These and other issues are the subject of our ongoing dialogue with the US.

 Q: You mention common Article 3: why is it so important?  

    

Article 3 common to the Geneva Conventions - called " common " because the text was included in all four treaties for the protection of victims of war adopted in 1949 - initially laid down rules for parties to internal armed conflicts. The rules protect persons not or no longer taking an active part in hostilities by prohibiting murder, mutilation, torture, cruel treatment, the taking of hostages, and outrages upon personal dignity, in particular humiliating and degrading treatment. The passing of sentences without the observance of " all the judicial guarantees which are recognized as indispensable by civilized peoples " is also prohibited. The Article states that the obligations listed constitute a " minimum " that the parties are bound to apply.

Over time, the protections enunciated in common Article 3 came to be regarded as so fundamental to preserving humanity in war that its rules are now referred to as " elementary considerations of humanity " that must be observed in any type of armed conflict. (The rest of the Geneva Conventions, applicable only to inter-State wars, contain more elaborate safeguards enjoyed by specific categories of protected persons). Common article 3 has thus become a baseline from which no departure, under any circumstances, is allowed. It applies to the treatment of all persons in enemy hands, regardless of how they may be legally or politically classified or in whose custody they may be.

 Q: Why is preserving the integrity of common Article 3 such an issue?  

    

As just mentioned, common article 3 applies to the treatment of all persons in enemy hands, regardless of how they may be classified. There should be no doubt that no one can be denied its protection because of the reasons, however unacceptable, for which arms are taken up.

It should be remembered that common Article 3, like the Geneva Conventions as a whole, was drafted by experts who had just come out of the darkest chapter of the twentieth century, and probably of all human history. It would be presumptuous to think that they lacked awareness of the potential for abuses that can be caused by war. The totality of the provisions of common Article 3 were crafted to prevent them.

The ICRC has relied on common Article 3 as the basic legal framework in its field operations throughout the world. As an organization whose mandate is to protect and assist victims of war, we can attest to the centrality of common Article 3 as a tool for encouraging respect for humanitarian law. Our work, as well as that of others engaged in a similar task, is based on the prohibition of murder, torture, outrages upon personal dignity and the denial of a fair trial, as well as on the other standards of common Article 3. It is helped by the fact that, as of recently, there remains no State not party to the Geneva Conventions in the world.

As with any body of law, however, acknowledging its legally binding nature is just the preliminary step to ensuring its observance in practice. In order to alleviate suffering in war it is the behaviour of both State and non-State parties that should be changed. Common Article 3 has served, and must continue to serve, as the clear legal baseline in that continuing endeavour.

 Q: How should one deal with people suspected of having committed terrorist acts?  

    

People suspected of having committed any criminal offence, including acts of terrorism, should be prosecuted. They must, however, be afforded essential judicial guarantees, including the presumption of innocence, the right to be tried by an impartial and independent court, the right to qualified legal counsel and the exclusion of any evidence obtained as a result of torture or other cruel, inhuman or degrading treatment.

I remain convinced that the efficient fight against terrorism and the respect of these fundamental rules are fully compatible.

 Q: Some persons are being detained by States in the fight against terrorism even though no criminal charges are brought against them.  

    

Internment of persons for imperative reasons of security is permitted under international humanitarian law in times of armed conflict, provided certain procedural safeguards are observed. Humanitarian law also provides that such persons must be released as soon as the reasons for their internment no longer exist and, at the latest, at the end of active hostilities in case of international armed conflict.

In this context, it should be reiterated that the ICRC takes a case-by-case approach to the legal qualification of situations of violence arising in the fight against terrorism. We do not believe that IHL is the overarching legal framework. It is applicable only to armed conflicts. Where the situation does not meet the threshold of armed conflict, it is ot her bodies of law that regulate the lawfulness of detention of persons without criminal charge.

 Q: The ICRC has always asked to be notified of all people detained in relation to the fight against terrorism and to have access to them. Where do we stand on this issue now?  

    

This is perhaps the issue on which the change has been most significant, since the US authorities have now acknowledged the existence of the CIA detention programme and have announced the transfer of 14 detainees previously held incommunicado to Guantanamo, where ICRC delegates have visited them. The US authorities have also said that there are no longer any persons held in undisclosed CIA places of detention.

The ICRC had repeatedly expressed concern about detainees in undisclosed detention and had requested access to them. The ICRC is concerned about any type of secret detention as such detention is contrary to a range of safeguards provided for under the relevant international standards.