Iraq Prisoner Abuse and the Geneva Conventions

Steven C. Welsh, Esq.

CDI Research Analyst
swelsh@cdi.org

July 9, 2004
[First appeared in the CDI Defense Monitor]

Precise causes and motivations behind the Abu Ghraib atrocities still are unclear. The unlikelihood that torture or other abuses can secure accurate intelligence, assuming a detainee possesses useful information to begin with, perhaps adds a further air of incompetence to the legal, moral, and strategic fiascoes — e.g., the rank illegality, disrespect for human rights, dishonor to the uniform, sabotage of good will, inflaming of adversaries, and dangers of reciprocal reprisals. With investigations still underway and many facts yet to be uncovered, also unclear is how far accountability can and should reach.

But in addition to the imposition of individual accountability, under the Geneva Conventions it is the United States as a nation that bears ultimate responsibility for abuses inflicted on persons in its custody.

The Geneva Conventions protecting POWs and civilians in times of occupation broadly prohibit torture and other inhumane treatment, but also specifically bar coercive interrogations — the use of inhumane treatment in an attempt to extract information. Published U.S. Army intelligence doctrine and detainee regulations acknowledge those requirements, as they must. In addition to the fact that the Abu Ghraib disaster otherwise violated U.S. law, the U.S. Constitution declares binding international treaties, such as the Geneva Conventions, to be part of the supreme law of the land. Along with federal statutes, in the hierarchy of U.S. law they are subordinate only to the Constitution itself.

Far from reviving the Nuremberg non-defense of “just following orders,” charges brought in the first Abu Ghraib court martial pointed out that the defendant was under a duty not simply to refrain from the unlawful conduct, but to actively intervene to protect prisoners from abuse. One of the counts was dereliction of duty, from the same article in the Uniform Code of Military Justice making it a punishable offense to disobey lawful orders. Failing to intervene was itself tantamount to disobeying lawful orders, because it was considered the defendant’s duty to protect the prisoners from abuse and he failed to do his duty.

Questions rightly have been raised about the training of detention personnel, and the abuses have raised additional systemic questions about the role of reservists and civilian contractors.

Unlike during the Vietnam War, there presently has been a massive mobilization of guardsmen and reserves, which means for many of them a change in practical terms to full-time status. And the trend towards contracted outsourcing characterizing American government in recent decades also has impacted the U.S. military. The military has been adamant that all military personnel, including Guard and Reserves as well as regular full-time personnel, must be held to the same standards. The Department of Justice is wrestling with precisely how to approach the question of prosecuting relevant civilian contractors.

The Geneva Conventions mandate appropriate training for the entire military; they go still further, however, calling for an effort to educate the general population about their principles. These obligations, together with bigger questions about what America stands for at home and abroad, invite reflection. Americans must ask what more we can do in our political life and educational system to nurture a knowledge and appreciation of the humanitarian ideals of the Geneva Conventions, and the call to pay greater respect to human life and the dignity of the human person they imply.