ICRC reactions to the Schlesinger Panel Report
The Schlesinger Panel Report on the US Department of Defense Detention Operations is a significant document and a welcome example of self-examination in the face of trying circumstances. It draws valuable lessons by naming violations, attributing responsibility, and offering recommendations designed to avoid repetition. At the same time, the Panel Report contains a number of inaccurate assertions, conclusions and recommendations on the legal positions taken by, and the role of, the ICRC, and about the laws of armed conflict.
I. ON THE ROLE OF THE ICRC
A. Page 87: "In the ICRC's view, the category of 'unlawful combatant' deprives the detainees of certain human rights. It argues that lack of information regarding the reasons for detention and the conditions for release are major sources of stress for detainees."
The Report misrepresents the link between the ICRC calls for improvement of conditions of detention and treatment, and the legal debate about IHL and status of detainees. The link that the ICRC establishes between the psychological conditions of detainees and their legal status - i.e. the legal basis for the detention of a person - is based on decades of experience in visiting places of detention in vastly different, rapidly changing environments. Consistent from one place to the other, however, is the finding that only by determining and adhering to a clearly established legal framework does one prevent arbitrariness and abuse.
B. "The ICRC should serve as an early warning indicator of possible abuse."
This is r ight, but there is more to it than initially meets the eye. The community of States has given the ICRC an active mandate to monitor whether States live up to their responsibility to respect IHL. This has never been an easy role, in particular in the field of detention. It has never been a pleasant one for the authority under scrutiny. It is, however, one that the ICRC takes very seriously.
This explains the ICRC's extensive documenting of conditions of detention and treatment of detainees and the explicit reporting of observations and recommendations to the concerned authorities. The ICRC believes in establishing trust and dialogue with authorities and conducts its work according to well-established principles and procedures. The confidential working modalities are seen as an essential component of this approach.
In return, the ICRC expects to see concrete results . At all levels of a given chain of command, it expects to receive responses to the concerns it raises – either orally or in writing, and in the form of concrete changes in the places of detention the ICRC visits. In cases where the ICRC comes to the conclusion that its recommendations are repeatedly not taken into account and where the conditions and treatment fail to improve despite its reports, it reserves the right, as a last resort, to publicly denounce violations of the relevant legal provisions by the authorities in question .
II. ON THE LEGAL POSITIONS OF THE ICRC
A. Page 85: "If we were to follow the ICRC's interpretations, interrogation operations would not be allowed."
The ICRC has never stated, suggested or intimated that interrogation of any detainee is prohibited, regardless of the detainee's status or lack of status under the Geneva Conventions. The ICRC has always recognized the right of States to take measures to address their security concerns. It has never called into question the right of the US to gather intelligence and conduct interrogations in furtherance of its security interests. Neither the Geneva Conventions, nor customary humanitarian law, prohibit intelligence gathering or interrogation. They do, however, require that detainees be treated humanely and their dignity as human beings protected. More specifically, the Geneva Conventions, customary humanitarian law and the Convention against Torture prohibit the use of torture and other forms of cruel, inhuman or degrading treatment. This absolute prohibition is also reflected in other international legal instruments and in most national laws.
B. Page 86: "This [U.S adherence to legal standards of detention contained in Additional Protocol I to the Geneva Conventions and Relating to the Protection of Victims of International Armed Conflicts] would grant legal protections to terrorists equivalent to the protections accorded to prisoners of war as required by the Geneva Conventions of 1949 despite the fact terrorists do not wear uniforms and are otherwise indistinguishable from combatants."
The provisions of Additional Protocol I to which the ICRC refers are the " fundamental guarantees " of Article 75 . The U.S. has explicitly accepted these provisions as binding customary international law (see: " The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions " , Michael J. Matheson, 2 Am.U.J.Int'l L. & Pol.'Y 419-31 (1987)).
C. Page 86-7: "(The ICRC) contends that Geneva Conventions III and IV . . . allow for only two categories of detainees: (1) civilian detainees who must be charged with a crime and tried and (2) enemy combatants who must be released at the cessation of hostilities."
The ICRC does not make such an assertion. Its reading of this issue is simply based on the Conventions themselves.
a) Civilians who pose a severe security risk may, indeed, be detained without criminal charge in international armed conflict. Their internment must be reviewed twice a year, but can be extended as long as hostilities continue and they continue to pose a serious security risk. They must be released as soon as possible after the end of the hostilities unless they are being prosecuted or serving a sentence.
b) All enemy combatants (whether they qualify for prisoner of war status or treatment under Geneva Convention III, or are covered by Geneva Convention IV or by the customary provisions of Article 75 Protocol I) may be detained beyond the conflict if they are being prosecuted or are serving a sentence.
D. Page 87: "(I)f detainees do not meet the specific requirements of privileged status (under the Geneva Conventions), there clearly must be a category for those lacking such privileges. The ICRC does not acknowledge such a category of 'unprivileged belligerents,' and argues that it is not consistent with its interpretation of the Geneva Conventions."
Although the Panel acknowledges the existence of Geneva Convention IV Relative to the Protection of Civilians, it assumes that if one does not qualify for prisoner of war status under Geneva Convention III, one is necessarily outside the entire scheme of the Conventions. This reflects a failure to acknowledge that such persons are entitled to the protections of Geneva Convention IV if they fulfil the nationality criteria set forth by Article 4 of this Convention. The ICRC rejects the concept of a status outside the framework of armed conflict for persons who, in fact, are entitled to the protections of either Geneva Convention III or IV, or by the customary provisions of Article 75 Protocol I. This position is in line with the clear text of both Conventions and with the US position on the customary nature of Article 75 Protocol I.
III. ON THE LAWS OF ARMED CONFLICT
A. Page 81: "The Panel accepts the proposition that these terrorists are not combatants entitled to the protections of Geneva Convention III. Furthermore, the Panel accepts the conclusion the Geneva Convention IV and the provisions of domestic criminal law are not sufficiently robust and adequate to provide for the appropriate detention of captured terrorists."
1. Geneva Convention III and the relevant U.S. Army Regulations call for status determinations by a " competent tribunal " precisely to determine whether a person, having committed a belligerent act and having fallen into the hands of the enemy in the frame of an international armed conflict, meets the criteria for prisoner of war status. Thus, one cannot conclude that a detainee is not entitled to the protections of the Third Convention without first following the procedures set out in the Convention for making such a determination. See also II.E above.
2. The ICRC is concerned about the suggestion that Geneva Convention IV may be ignored because it is " not sufficiently robust " . Geneva Convention IV explicitly acknowledges the existence of circumstances under which persons who fall within its terms may be deprived of their liberty. Such persons may be interned for imperative security reasons and for as long as these imperative reasons exist. They may be charged with criminal conduct, tried, convicted, and sentenced (to terms beyond the end of the conflict and even to death under certain conditions). They should be prosecuted for war crimes, that is, serious violations of the laws and customs of war. They can also be prosecuted for unlawful participation in hostilities (and therefore be called " unlawful combatants " , although this terminology is not used in IHL), but such prosecution does not entail their exclusion from the protection of Geneva Convention IV. Geneva Convention IV does not contain any prohibition of interrogation. Furthermore, the Panel's suggestion that because Geneva Convention IV would not be " sufficiently robust " it could be waived by decision of individual State parties is a dangerous premise. To accept this argument would mean creating an exception that risks undermining all the humanitarian protections of the law.
B. Page 82: "As a matter of logic, there should be a category of persons who do not comply with the specified conditions and thus fall outside the category of persons entitled to EPW [enemy prisoner of war] status. Although there is not a particular label for this category in law of war conventions, the concept of 'unlawful combatant' or 'unprivileged belligerent' is part of the law of war"
This assertion promotes the argument that persons who fail to qualify for prisoner of war status under Geneva Convention III are categorically outside of the protections of the Geneva Conventions. However, Geneva Convention IV, Article 4 provides protected status to persons " who find themselves . . . in the hands of a party to the conflict " , unless they fail to meet certain nationality criteria or are covered by the other Geneva Conventions. Detainees not protected by those other Conventions, and who do meet the nationality criteria for coverage under Geneva Convention IV do, indeed,'have a label in the law of war conventions'. That label is " civilian " , or " protected person " under Geneva Convention IV – even if they are definitely suspected of activity hostile to the security of the detaining State or of being " unlawful combatants " . Persons who do not meet the nationality criteria are covered by Article 75 of Additional Protocol I to the Geneva Conventions. This article forms part of customary international law.
IV. ON THE RECOMMENDATIONS
A. The United States needs to redefine its approach to customary and treaty international humanitarian law, which must be adapted to the realities of the nature of conflict in the 21st Century. In doing so, the United States should emphasize the standard of reciprocity . . . The Panel believes the International Committee of the Red Cross, no less than the Defense Department, needs to adapt itself to the new realities of conflict which are far different from the Western European environment from which the ICRC's interpretation of Geneva Conventions was drawn. (Recommendations 9 and 10.)
The purposes and principles of humanitarian law are of universal origin. The perspective of the ICRC, which has been operating for 140 years and does so today in all corners of the globe, is firmly based on this tradition. The Geneva Conventions codify these principles and are among the most widely ratified international treaties in the world. That said, there is no doubt that the conflicts of today differ markedly from those that led to the Geneva Conventions of 1949, and the ICRC continues to initiate or participate in debates about how the Geneva Conventions can best be applied in contemporary situations of armed conflict.
Nevertheless, a decision to deviate unilaterally from these universally established standards should not be taken lightly. To date, there has been little evidence presented that faithful application of existing law is an impediment in the pursuit of those who violate that same law.
Moreover, the standard of reciprocity cannot apply to fundamental safeguards such as prohibition of torture without accepting the risk of destroying not only the principle of law, but also the very values on which it is built.
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