I heard an interesting conversation this afternoon on my local NPR affiliate: a former Air Force attorney and current law professor at Duke was discussing the Geneva Convention and its applicability to the situation in Baghdad.
It occurred to me that the whole “End of official hostilities” declaration on 1 May 2003 may have been intended to take the Geneva Convention out of the picture. The speaker made it quite clear that while torture is not defined in the Uniform Code of Military Justice — the rule of law for uniformed personnel — Article 3 of the Geneva Convention is applicable to anyone.
Sections 3.1.a and 3.1.c would seem applicable here:
Article 3
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c ) Outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
In other words, one need not be at war with a recognized army or a nation to be required to follow these strictures. There are two murders already linked to the treatment of prisoners in Afghanistan and possibly more in Iraq. I may be just more that unusually cynical but the combination of proclaiming the end of hostilities and the extensive use of civilian contractors makes me wonder if the plan was to skirt the intent of the rule of law, in this case the Geneva Convention: if the war is over and we don’t use military personnel to do this stuff, it’s not illegal.
The fact that some of the reservists involved are corrections officers in civilian life makes me wonder how domestic prisons are run.
Josh Marshall has some comments on how these techniques might actually be legitimate training for special forces troops, designed to expose them to the worst an enemy can throw at them: he suggests these tactics have been co-opted by lightly trained reservists and civilians who don’t understand how they’re supposed to work and that they’re not permitted under international law.